Memelink v Body Corporate 68792

[2020] NZHC 2868

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-330

[2020] NZHC 2868

BETWEEN

HARRY MEMELINK

Appellant

AND

BODY CORPORATE 68792

Respondent

Hearing:	30 October 2020
Appearances:	No appearance for Appellant A O’Connor for Respondent
Judgment:	30 October 2020
Reasons:	2 November 2020

JUDGMENT OF CLARK J

[1]    In a decision given on 21 December 2019 the Tenancy Tribunal dismissed  Mr Memelink’s application for a declaration that he is, or was, eligible to be the rightful chairman of Body Corporate 68792 since a meeting held to vote on that issue in November 2014.1

[2]    Mr Memelink filed in the District Court at Lower Hutt a notice of appeal against the Tribunal’s decision. Although the appeal was filed within the 10 working- day timeframe it was not filed “in the District Court nearest to the place at which the Tribunal sat in the proceedings to which the appeal relates”.2

[3]    When the appeal came before the District Court Judge on 28 May 2020, counsel for the respondent raised as a preliminary issue whether the appeal had been

1      Memelink v Body Corporate 68792 [2019] NZTT Wellington 9000347 [Tribunal decision].

2      Residential Tenancies Act 1986, s 117(5).

MEMELINK v BODY CORPORATE 68792 [2020] NZHC 2868 [30 October 2020]

properly brought. The Judge concluded that “in the absence of any jurisdiction to extend that time this appeal was not filed and served within the 10 day statutory time limit and accordingly is struck out”.3

Mr Memelink appeals the District Court decision

[4]    Mr Memelink submits that in light of the reasons for proceeding as he did it was unduly harsh to dismiss his entire appeal on the basis of what he describes as a narrow interpretation of s 117(5) of the Residential Tenancies Act.

(a)Mr Memelink apparently filed his original application to the Tenancy Tribunal in Lower Hutt. He is a resident of Lower Hutt and the buildings to which the matter relates are in Lower Hutt.

(b)The Tribunal was scheduled to sit in Lower Hutt but apparently there was a shortage of available rooms so Mr Memelink agreed to the matter being heard in Wellington.

(c)Mr Memelink says he filed his appeal in the Lower Hutt registry as this was  the  registry  where  the  proceeding  had  been  administered.  Mr Memelink refers to the appeal form which states: “You can fill in this form and hand it in at your local court”.

[5]    The respondent’s case is that s 119 of the Residential Tenancies Act permits appeals to the High Court only on questions of law and Mr Memelink’s appeal is not on a question of law. Mr O’Connor submitted the appeal was properly struck out given the notice of appeal was filed in the wrong registry and the District Court had no ability to grant Mr Memelink an extension of time in which to file his appeal in the correct registry.

3      Memelink v Body Corporate 68792 [2020] NZDC 9660.

Approach to appeal

[6]    A party to an appeal under s 117 may appeal to the High Court on a question of law under s 119 of the Act. The appeal is to be treated as if it were an appeal under the High Court Rules 2016.4

[7]    The approach to an appeal on a question of law was summarised in Anderson v FM Custodians Ltd:5

[32] For an appeal on a question of law, the approach is that which was applied in Bryson v Three Foot Six Ltd… and later confirmed in Vodafone New Zealand Ltd v Telecom New Zealand Ltd… In short, this Court is not to substitute its own views for that of the lower Court; instead the Court must consider whether the decisions under appeal reveal a misinterpretation and/or misapplication of the statutory powers in the [Residential Tenancies] Act, and if not, whether what has been decided is so misconceived that it is an unlawful decision …

[8]    In my view the question of law arises from the District Court’s determination that there was an absence of jurisdiction to extend the time within which the notice of appeal was to be filed and that therefore the appeal should be struck out. The District Court Judge was correct in his observation that the time for filing could not be extended but Mr Memelink’s filing of his appeal in the Lower Hutt rather than the Wellington registry raises an issue about the proper registry, not statutory timeframes.

[9]Rule 1.5 of the District Court Rules 2014 was applicable to this issue:

1.5 Application of rules

(1)These rules apply to—

(a)civil proceedings taken in the District Court under the District Courts Act 1947; and

(b)unless otherwise provided in these rules or any other enactment, other civil proceedings taken in the District Court or before a Judge.

…

4      Residential Tenancies Act 1986, s 119(2).

5      Anderson v FM Custodians Ltd [2013] NZHC 2423, (2013) 15 NZCPR 123, citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[27]; Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [5]–[55]. See also Smith v Accessible Properties New Zealand Ltd [2018] NZHC 1010.

[10]   Under r 1.12(2) the Court may at any stage of the proceeding and on its initiative or on the application of a party make any amendment to the procedure in the proceeding that is necessary for determining the real controversy between the parties.

[11]   It was an error of law to construe s 117(5) without reference to the District Court Rules and in particular r 1.12(2) the aim of which is to avoid justice being defeated by a technicality.6

[12]   Applying that rule it was open to the registrar, for example, to amend the error in the procedure by either informing Mr Memelink that he had filed in the wrong registry and require him to refile his document in the District Court at Wellington. Alternatively, the error might have been corrected at the hearing of the appeal. The point is that it was an error of law to determine that the jurisdictional point was governed solely by s 117(5) and to not have regard to the discretion available to correct errors and procedure given by the District Court Rules.

Result

[13]   The appeal is allowed. Pursuant to r 20.19(1)(b)(i) of the High Court Rules the matter is  remitted to the District Court to enable it to consider and determine   Mr Memelink’s appeal on the merits.

[14]   Although Mr Memelink has succeeded on this point I decline to award costs. The issue raised before the Tribunal has been previously and unsuccessfully litigated in the High Court, as the Tribunal recorded.7 Further, Mr Memelink did not appear at the hearing before me. He is fortunate that the appeal was not dismissed for want of prosecution.8

[15]   As to Mr Memelink’s non-appearance, shortly after 10.15 when there had been no word from Mr Memelink I decided I would proceed to hear from Mr O’Connor. I considered Mr Memelink was not disadvantaged by proceeding in this way as, on the

6      Roderick Joyce and others Westlaw NZ Civil Procedure: District Courts and Tribunals (online looseleaf ed, Thomson Reuters) at [DCR.12.01]; and Kirton v Prospecdev Holdings  (1990)     2 PRNZ 412 (HC).

7      Tribunal decision, above n 1, at 6.

8      High Court Rules 2016, s 15.2(a).

basis of the submissions filed, I had reached a view on the question of law issue that was favourable to Mr Memelink.

[16]   I heard from Mr O’Connor and, in Court, formally allowed the appeal with reasons to follow. This judgment contains my reasons.

Karen Clark J

Solicitors:

Iorns Legal, Porirua for Respondent