Memelink v Body Corporate 378945
[2020] NZHC 1461
•25 June 2020
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 1461
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: On the papers Appearances:
D G Livingston for the Appellants D G Dewar for the Respondent
Judgment:
25 June 2020
JUDGMENT OF COOKE J
[1] Mr Memelink appeals the decision of the District Court dated 28 February 2020 in which Judge Hastings struck out an attempted appeal to that Court from the Tenancy Tribunal on the basis that it was not brought in time.1
[2] By consent orders made by Churchman J on 8 June 2020 the appeal proceeds on the papers in accordance with written submissions filed by the parties.
1 Lynx Trustees Limited (in liq) v Body Corporate 378945 [2020] NZDC 3293.
MEMELINK v BODY CORPORATE 378945 [2020] NZHC 1461 [25 June 2020]
[3] I note that this appeal has been brought by Mr Memelink in person notwithstanding that the proceedings in the District Court and Tenancy Tribunal involved Lynx Trustees Ltd, now in liquidation.2 I am unsure what status Mr Memelink has to bring an appeal in relation to a decision affecting the company in liquidation.
Background
[4] The decision of the Tenancy Tribunal dated 7 August 2019 ordered Lynx Trustees Ltd, as the owner of a unit in the Grand Theatre Apartments, to pay certain operating levies, interest and costs to the Body Corporate. An application for re- hearing of that matter was dismissed by the Tribunal on 11 September 2019.
[5] The steps in relation to an attempted appeal to the District Court were described by the Judge in the following terms:
[2] On 14 October 2019, the Registry referred this file to me under cover of a memorandum indicating that the notice appeal had initially not been accepted for filing because it was out of time. The Registrar went on to state, “Having reviewed the circumstances of the case, it appears the would-be appellant contacted the court registry to obtain guidance on what form an appeal must take and did not receive correct guidance until the period of appeal expired.” The Registrar then stated, “I am concerned a litigant in person may have had their access to justice compromised as a result of registry staff failing to provide timely and appropriate guidance.” Concerned by that last sentence, I purported to extend time to bring the appeal by exercising the Court’s inherent power to determine its own process.
[6] The Judge received further submissions, however, and determined that under r 18.4 of the District Court Rules, and s 117(6) of the Residential Tenancies Act 1986 (the Act) there was no jurisdiction to grant an extension of time for the bringing of an appeal to the District Court, and he determined that the appeal was a nullity and should be struck out. In doing so the District Court relied on a previous decision of this Court in McLeod v Schellack.3 I note that the respondent did not agree that Mr Memelink was prejudiced by any actions of the Registry staff.
2 See also the decision of the District Court at footnote 1.
3 McLeod v Schellack [2019] NZHC 1364.
[7] On appeal Mr Livingston for Mr Memelink argues that the District Court erred as s 96(2) of the Act created an ability to extend the time for bringing an appeal to the District Court such that r 18.4(3) of the District Court Rules allowed the Judge to grant leave to appeal out of time. Mr Dewar for the respondent disagreed with that argument relying on McLeod v Schellack and the review of the authorities conducted by the Court of Appeal in Attorney-General v Howard.4
Analysis
[8] For the reasons set out below I agree with Powell J in McLeod v Schellack that the District Court had no jurisdiction to extend the time for bringing the appeal, and for that reason this appeal should be dismissed.
[9] Section 117(6) of the Act provides that every appeal must be brought within 10 working days after the date of the decision to which the appeal relates. It is common ground that that was not done in the present case. But Mr Memelink relies on r 18.4(3) on the basis that the District Court could grant leave to appeal out of time. As I understand it the argument is that r 18.4(3)(a) applies as the Act permits an extension to the time for bringing an appeal.
[10] The provisions prescribing when an appeal must be brought under the Act need to be considered in light of comparable provisions. In Attorney-General v Howard the Court of Appeal undertook an analysis of prescribed time limits for bringing appeals in relation to decisions of a range of tribunals. It distinguished between those which permitted an extension of time for the bringing of the appeal, and those that did not.5 The Court was addressing an attempted appeal from the Human Rights Review Tribunal out of time, and whether there was a jurisdiction to extend that time under the High Court Rules 2016. The Court held:
[100] As the timeframes for filing and service are set out in the [Human Rights Act 1993], they are mandatory. They cannot be extended by the Courts as there is nothing in the [Human Rights Act 1993] authorising such an extension: see the cases referred to at [89] above, Dawson,6 State Insurance
4 Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58, overruled in Siemer v Heron
[2011] NZSC 133, [2012] 1 NZLR 309 but on a different point.
5 At [101].
6 Dawson v Chief Executive Officer of the Ministry of Social Development [2007] NZCA 94.
General Manager v Scott,7 Soto v Minister of Immigration,8 Steinborn v Minister of Immigration,9 Benchmark Building Supplies Ltd v Wright10 and Mucelli.11
[11] The decisions referred to at [89] of the judgment were Inglis Enterprise Limited v Race Relations Conciliator,12 Ta’ase v Victoria University of Wellington,13 Cullen v Police,14 Stoves v Commissioner of Police,15 and Child Poverty Action Group Inc v Attorney-General.16 Significantly the authorities span a number of tribunals with rights of appeal to the Courts. The decision of Powell J in McLeod v Schellack can be added to the list with respect to decisions of the Tenancy Tribunal.17
[12] The Court also noted in that case that there was a distinction between the provisions regulating the appeal to the High Court (s 123 of the Human Rights Act 1993) and the provisions regulating subsequent appeals to the Court of Appeal (s 124). The High Court or the Court of Appeal could grant an extension of the time for bringing an application for leave to appeal to the Court of Appeal under s 124, but there was no such power with respect to an appeal to the High Court under s 123. The Court regarded it as significant that Parliament had allowed extensions of time in some circumstances, but not in others. That reiterated that there was no power to grant such an extension of time where none was expressly provided for.18
[13] The same point can be made with respect to the rights of appeal set out in the present Act. The right of appeal from the Tenancy Tribunal to the District Court is governed by s 117 — this requires the appeal to be brought within 10 working days without any provision for an extension of time. The power to appeal any decision of the District Court to the High Court is governed by s 119 — this provides that every appeal must be in accordance with the High Court Rules, which includes an ability to
7 State Insurance General Manager v Scott [1982] 1 NZLR 717 (CA).
8 Soto v Minister of Immigration (1986) 2 CRNZ 350 (CA).
9 Steinborn v Minister for Immigration [2002] 1 NZLR 639 (CA).
10 Benchmark Building Supplies Ltd v Wright (1998) 12 PRNZ 200 (CA).
11 At [74].
12 Inglis Enterprise Limited v Race Relations Conciliator (1994) 7 PRNZ 404 (HC).
13 Ta’ase v Victoria University of Wellington (1999) 14 PRNZ 406 (HC).
14 Cullen v Police (2000) 14 PRNZ 315 (HC).
15 Stoves v Commissioner of Police (2009) 19 PRNZ 334 (HC).
16 Child Poverty Action Group Inc v Attorney-General (2009) 19 PRNZ 689 (HC).
17 McLeod v Schellack, above n 3.
18 At [101] with reference to Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue [1990] 3 NZLR 313 (CA), especially at 320 per Richardson J.
extend the prescribed time.19 Any appeal from the High Court to the Court of Appeal is governed by s 120 — this provides for an appeal by way of leave which must be sought within 15 working days, with the power to extend time for the bringing of that application.
[14] It is accordingly apparent that Parliament has identified when the time limits for bringing appeals can, and cannot be extended under this Act. Parliament has decided that the 10 day period of time for bringing an appeal to the District Court under s 117 cannot be extended.
[15] Mr Memelink seeks to avoid the effect of s 117 through s 96 of the Act, which provides:
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.
(3)The Tribunal may extend any such time limit notwithstanding that the application for the extension is not made until after the expiration of the time appointed or fixed.
…
[16] This section was not considered by Powell J in McLeod v Schellack. However I accept Mr Dewar’s submission that the power of the Tribunal in s 96(2) does not allow the Tribunal to extend the time for bringing an appeal in the District Court against a decision of the Tribunal. That interpretation would cut across the statutory scheme for the time periods for bringing of appeals (and potential extension of those time periods) especially that in s 117, and would involve the unlikely suggestion that the Tribunal would have power to regulate proceedings in the District Court. Section
19 High Court Rules 2016, r 20.4
96 only applies when there are “proceedings before the Tribunal”. When the Tribunal has given a decision there are no longer proceedings before it, although the Tribunal does have a power to re-hear a matter under s 105 of the Act. Even then such a re- hearing must be sought within five working days of an earlier decision “or within such further time as the Tribunal may allow”, which again shows that Parliament has expressly addressed when the applicable time periods can be extended. I note that this right was exercised in the present case.20
[17] It follows that the District Court was correct in finding there was no jurisdiction for it to extend the period of time prescribed for bringing an appeal as there was no provision in the Act allowing for such an extension. The appeal is accordingly dismissed.
Costs
[18] The respondent seeks costs in this Court and in the District Court. It seeks them on an indemnity basis on the basis that Mr Memelink is “a perpetual litigant” by reference to a number of litigation steps he has taken. It seeks a costs award to reflect the egregiousness of his ongoing conduct, and the time and expense that he has put the Body Corporate and its representatives to. The appellant responds by saying that such orders are exceptional, any misconduct must be flagrant, and that in the present case there was a serious question to be argued. Mr Memelink says there is no reason to depart from a normal costs award on a 2B basis.
I accept that the degree of relentless pursuit of litigation by Mr Memelink raises the prospect of costs being awarded on an indemnity basis. But I also accept that there was a respectable argument to be made in the present case as a consequence of the potential implications of s 96(2) of the Act. Accordingly I award the respondent costs on a 2B basis to be fixed by the Registrar in the event of any disagreement.
Cooke J
20 See above at [4].
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