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.

[5]                 Mr Dewar argued that the underlying issue in the proceeding was limited to questions of costs and interest, and that there had never been any issue of substantive injustice. Rather there was an endless pursuit of litigation by Mr Memelink. He said that the Court had thoroughly dealt with the arguments that were relevant to whether an extension of time could be granted.

2      Snee v Snee (1999) 13 PRNZ 609 (CA). See also Sanson v Blackwells [2010] NZCA 612 at [11].

3      McLeod v Schellack [2019] NZHC 1364.

[6]                 In reply Mr Livingston said that, irrespective of the arguments about the underlying substantive justice in the present case, the issue raised was a significant one that had the capacity for affecting many people with appeals from decisions of the Tenancy Tribunal, and a decision of the Court of Appeal on the issue was warranted.

Decision

[7]I do not accept that a basis to grant leave to appeal has been established.

[8]                 The approach to the ability to extend time for bringing appeals from decisions of tribunals has been comprehensively addressed by the Court of Appeal in its decision in Attorney-General v Howard.4 The various tribunals addressed by the Court of Appeal did not include the Tenancy Tribunal, but the reasoning of the Court is equally applicable to that tribunal. Two High Court decisions have now confirmed that this approach applies to the Tenancy Tribunal, McLeod v Schellack, and the present case.

[9]                 I accept Mr Livingston’s point that McLeod v Schellack did not address the particular argument that Mr Memelink has advanced. But for the reasons set out in the substantive judgment I do not think that argument has merit. Given the general approach set out by the Court of Appeal in Attorney-General v Howard, it does not seem to me that the argument has any real prospect of creating an exception to that approach.

[10]              Even if I had seen greater merit in the argument, I see considerable force in Mr Dewar’s point that Mr Memelink’s persistence with this litigation should not be encouraged. As I said in the principal judgment his pursuit of the litigation has been “relentless” in relation to an underlying matter that does not appear to have any substantial merit. So even if there was greater merit in the particular argument, I do not think this is the appropriate case for the point to be considered.

4      Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.

[11]              Accordingly the application for leave to appeal is declined. The respondent is awarded costs of this application on a 2B basis to be fixed by the Registrar if they cannot be agreed.

Cooke J

Solicitors:

Livingston & Livingston, Wellington for the Appellants Thomas Dewar Sziranyi Letts, Lower Hutt for the Respondent