Memelink v Body Corporate 378945

[2020] NZCA 575

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA518/2020
 [2020] NZCA 575

BETWEEN	HARRY MEMELINK AS TRUSTEE OF LINK TRUST NO.1 Applicant
AND	BODY CORPORATE 378945 Respondent

Court:	Gilbert and Collins JJ
Counsel:	D G O Livingston for Applicant D G Dewar for Respondent
Judgment: (On the papers)	18 November 2020 at 3 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.

BThe applicant must pay costs to the respondent for a standard application on a band A basis and any usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. This is an application for special leave to appeal against a decision of the High Court dismissing an appeal against a decision of the District Court striking out an appeal from an order made by the Tenancy Tribunal (the Tribunal).  The appeal was struck out on the basis that the notice of appeal was filed outside the statutory time limit and there was no power to extend the time limit.

2. The applicant, Harry Memelink, is one of the trustees of Link Trust No.1 which owns a unit in the Grand Theatre Apartments in Lower Hutt.  In July 2018, the respondent body corporate lodged a claim in the Tenancy Tribunal for unpaid operating expenses, interest and costs.  The operating expenses were paid prior to the claim being determined.  On 7 August 2019, the Tribunal ordered Mr Memelink and the other trustee, Lynx Trustees Ltd (now in liquidation), to pay the sum of $9,694.35 comprising interest and costs.[1] 

   [1]Body Corporate 378945 v Lynx Trustees Ltd [2019] NZTT Hutt Valley 9009301 [Tribunal decision].

3. In the meantime, on 28 August 2018, Mr Memelink was adjudicated bankrupt.  The respondent filed a proof of debt in Mr Memelink’s bankruptcy for the amount awarded.  The Official Assignee admitted the proof in the sum of $7,210.35 but not for the balance of $2,484 which related to costs incurred after the date of the bankruptcy.  Mr Memelink filed proceedings in the High Court challenging various decisions of the Official Assignee, including the decision to admit the respondent’s proof in part.  However, he abandoned this aspect of his challenge prior to the hearing.[2]  The amount remaining in dispute is therefore only $2,484.

   [2]Memelink v Official Assignee [2020] NZHC 2709 at [1]–[2] and [80].

4. Mr Memelink wished to appeal against the Tribunal decision, but he failed to do so within the time limit prescribed in s 117(6) of the Residential Tenancies Act 1986 (the Act) which requires that any notice of appeal be filed within 10 working days after the date of the decision to which the appeal relates.  Mr Memelink claims that the registry staff at the District Court did not provide correct guidance on the required form until after the appeal period had expired.  Mr Memelink’s appeal was subsequently struck out by the District Court on 28 February 2020 on the basis it was not brought within time and there was no power to extend the time limit.[3] 

   [3]Lynx Trustees Ltd (in liq) v Body Corporate 378945 [2020] NZDC 3293 [District Court judgment].

5. Mr Memelink appealed to the High Court.  Notwithstanding the clear terms of s 117(6), he contended that the time for appeal could be extended by the Tribunal under s 96(2) of the Act:

   96       Further provisions relating to procedure generally

   …

   (2)The Tribunal may, on the application of any party to any proceedings before the Tribunal,—

   (a)extend any time limit; or

   (b)if it is satisfied that the other party will not be prejudiced thereby, waive compliance by the applicant with any other procedural requirement,—

   prescribed by or under this Act and relating to the proceedings.

6. Cooke J dismissed the appeal for reasons set out in a judgment delivered on 25 June 2020.[4]  The Judge agreed with the District Court that there was no jurisdiction for it to extend the statutory time limit for bringing an appeal.[5]  Cooke J subsequently declined Mr Memelink’s application for leave to appeal to this Court.[6] 

   [4]Memelink v Body Corporate 378945 [2020] NZHC 1461 [High Court judgment].

   [5]At [17].

   [6]Memelink v Body Corporate 378945 [2020] NZHC 2152 [Leave judgment].

7. Mr Memelink now applies for special leave to appeal to this Court under s 120 of the Act.  This Court may only grant such leave if, in its opinion, the appeal involves a question of law that, because of its general or public importance or for any other reason, ought to be submitted to the Court for its decision.[7]  The threshold for the grant of such leave is high.[8]

   [7]Residential Tenancies Act 1986, s 120(3).

   [8]Cook v Housing New Zealand Corporation [2014] NZCA 504 at [3]; and Waller v Hider [1998] 1 NZLR 412 (CA) at [413].

8. Mr Memelink accepts there is no provision in the Act empowering the District Court to extend the 10 working day time limit for filing any notice of appeal prescribed by s 117(6) of the Act.  However, he contends that the Tribunal can extend this time limit in exercise of its powers under s 96.  If such an extension is granted, an appeal to the District Court could then be brought.  Mr Memelink states in his application for leave to appeal that, if leave is granted, he would seek a judgment from this Court in the form of a declaration that the Tribunal may extend the time limit for appeals to the District Court if a party to Tribunal proceedings makes such an application to the Tribunal. 

9. The application does not meet the criteria for special leave for a further appeal to this Court.  The point Mr Memelink seeks to raise on the proposed appeal is not seriously arguable.  The time limit prescribed by Parliament in s 117 of the Act for the filing of any notice of appeal in the District Court cannot be overcome by recourse to the Tribunal under s 96.  The latter provision applies only to time limits prescribed under the Act and relating to proceedings before the Tribunal.  The proposed appeal has insufficient prospect of success to justify the cost and delay of a further appeal.  Moreover, even if we were persuaded that the proposed appeal raised a question of law capable of bona fide and serious argument, this would not be an appropriate case to consider it given the extremely modest sum in issue and the lack of any identified defence to the Tribunal’s substantive order. 

10. The respondent seeks indemnity costs but does not set out the basis for such an award or provide any details of the amount sought.  In the circumstances, we consider it is appropriate to award scale costs, as was awarded in the High Court on both the substantive appeal and the leave application.[9] 

Result

[9]High Court judgment, above n 4, at [18]; and Leave judgment, above n 6, at [11].

1. The application for leave to appeal is declined.

2. The applicant must pay costs to the respondent for a standard application on a band A basis and any usual disbursements.

Solicitors:
Livingston & Livingston, Wellington for Applicant
Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent