Memelink v Body Corporate 378945 - [2020] NZHC 2152

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-188

[2020] NZHC 2152

UDNER Section 119 of the Residential Tenancies Act 1986; Rules 20.4–20.9 of the High Court Rules 2014

IN THE MATTER

of an appeal against a decision declining to extend the time to bring an appeal

BETWEEN

HARRY MEMELINK

First Appellant

LYNX TRUSTEES LIMITED (IN LIQUIDATION)

Second Appellant

AND

BODY CORPORATE 378945

Respondent

Hearing: 24 August 2020

Appearances:

D G Livingston for the First Appellants D G Dewar for the Respondent

Judgment:

24 August 2020

JUDGMENT OF COOKE J

(Leave to appeal)

[1] By application dated 16 July 2020 Mr Memelink applies for leave to appeal to the Court of Appeal from the Court’s judgment dated 25 June 2020.1 The application is made pursuant to s 120 of the Residential Tenancies Act 1986. The application is opposed by the respondent.

1 Memelink v Body Corporate 378945 [2020] NZHC 1461.

MEMELINK v BODY CORPORATE 378945 [2020] NZHC 2152 [24 August 2020]

Approach to the grant of leave

[2] The approach taken to the grant of leave was generally set out by the Court of Appeal in Snee v Snee.2 The Court set out the test for the grant of leave in the following terms:

[22] … for leave to be granted pursuant to s 67, the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the Court system and to the parties, and the delay involved in the further appeal. Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[3] Section 120 of the Residential Tenancies Act 1986 adopts the same standards for the grant of leave. Accordingly I adopt that approach.

Submissions

[4] Mr Livingston argued that the proposed appeal involved an important point concerning appeals from the Tenancy Tribunal that has the capacity of affecting many other people. The earlier decision of the Court in McLeod v Schellack had not considered the argument advanced by Mr Memelink based on the provisions of the Residential Tenancies Act.3 He also pointed out that the Registry staff at the District Court had accepted responsibility for the mistake made in the present case. In relation to the point concerning the proceedings now being vested with the Official Assignee, Mr Livingston contended that Mr Memelink was a party to the proceedings as a trustee, and that the cause of action accordingly did not vest with the Official Assignee.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 2152
Decision Date: 24 August 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Harry Memelink, alongside Lynx Trustees Limited (in liquidation), sought leave to appeal against the decision of the Court to decline an extension of time to bring an appeal against Body Corporate 378945. The primary matter in dispute involved the interpretation and application of the Residential Tenancies Act 1986, particularly in relation to the ability to extend time for appeals from decisions made by the Tenancy Tribunal. The application for leave to appeal was contested by the respondent, who opposed the appeal on the grounds that it lacked merit and was a mere continuation of litigation with no substantial merit.

The legal issues central to this case revolved around the interpretation of the Residential Tenancies Act 1986 and the High Court Rules 2014, specifically Section 119 of the Act and Rules 20.4–20.9 of the High Court Rules. The key issue was whether the Court should grant leave to appeal the decision declining to extend the time to bring an appeal, given the potential for this matter to set a precedent affecting numerous other cases. The appellants argued that the argument presented had not been considered in earlier decisions and that the District Court Registry had admitted responsibility for an error in the case. Conversely, the respondent argued that the appeal was a repetitive pursuit of litigation with no substantive injustice and that the Court had already thoroughly considered the relevant arguments.

The Court, in declining to grant leave to appeal, noted that the approach to extending time for appeals from Tenancy Tribunal decisions had been comprehensively addressed by the Court of Appeal in Attorney-General v Howard. The reasoning applied to other tribunals was equally applicable to the Tenancy Tribunal, as confirmed by two High Court decisions. Although the appellants' argument had not been previously considered, the Court found it lacked merit and did not believe it would create an exception to the established approach. Additionally, the Court recognised the relentless pursuit of litigation by Mr Memelink as having little substantive merit, thus further supporting the decision to decline leave to appeal. The respondent was awarded costs of the application on a 2B basis.

The Court’s final orders included declining the application for leave to appeal and awarding the respondent costs of the application on a 2B basis, to be fixed by the Registrar if they could not be agreed.

Orders