Papuni v Real Estate Agent's Authority (CAC 1905) - [2022] NZHC 1336

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-00681

[2022] NZHC 1336

BETWEEN
JAMES PAPUNI

Applicant and intended appellant

AND

REAL ESTATE AGENT’S AUTHORITY [CAC 1905]

Respondent

Hearing: 2 June 2022

Appearances:

Appellant in person with D Nottingham as McKenzie friend F Nizam for the respondent

Judgment:

9 June 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 9 June 2022 at 10.30 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

Luke Cunningham Clere, Wellington Copy: J Papuni

PAPUNI v REAL ESTATE AGENT’S AUTHORITY [CAC 1905] [2022] NZHC 1336 [9 June 2022]

[1] The applicant, James Papuni, has made an application to extend the time for filing an appeal against a decision of the Real Estate Agents Disciplinary Tribunal dated 24 February 2021.

[2] Prior to the first call of the appeal the respondent questioned the jurisdiction for the application, with reference to s 116A of the Real Estate Agents Act 2008. This provides:

(1)An appeal to the High Court must, subject to subsection (2), be made in the prescribed manner to the court within 20 working days after the day on which notice of the relevant decision is given to the appellant.

(2)The court may accept a late appeal no later than 60 working days after the day on which notice was given to the appellant if the court is satisfied that exceptional circumstances prevented the appeal from being made in time.

[3] As the respondent noted, the present application, filed on 28 April 2022, is well outside both of the dates specified in s 116A.

[4] With regard to this Court’s jurisdiction in such circumstances, Rule 20.4 of the High Court Rules 2016 provides:

(1)This rule applies if a party has a right of appeal to the court.
(2)An appeal must be brought—
(a)within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or

(b)in every other case, within 20 working days after the decision appealed against is given.

(3)By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—

(a)permits the extension; or

(b)does not limit the time prescribed for bringing the appeal.

(4)An application for an extension—
(a)must be made by an interlocutory application on notice to every other party affected by the appeal; and

(b)may be made before or after the expiry of the time for appealing.

[5] Clearly in this case r 20.4(3) is engaged: s 116A(2) prevents any late appeal filed more than 60 working days after the decision in question, as is the case here.

[6] As a result of this issue, when the application was first called it was adjourned to a fixture to determine the jurisdiction issue in order to give Mr Papuni a chance to consider his position.

[7] By the time Mr Papuni filed his submissions…

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.

Continue reading Papuni v Real Estate Agent's Authority (CAC 1905)

Details

AGLC: Papuni v Real Estate Agent's Authority (CAC 1905) [2022] NZHC 1336
Case: [2022] NZHC 1336
Decision Date: 9 June 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the applicant James Papuni sought to extend the time for filing an appeal against a decision made by the Real Estate Agents Disciplinary Tribunal. The tribunal's decision dated 24 February 2021 was the subject of Papuni's application, which he filed on 28 April 2022. The Real Estate Agent’s Authority, the respondent, questioned the court's jurisdiction to entertain the application on the basis that it was filed beyond the permissible period under the Real Estate Agents Act 2008 and the High Court Rules 2016.

The central legal issue was whether the court had jurisdiction to accept an out-of-time appeal under section 116A of the Real Estate Agents Act 2008 and rule 20.4 of the High Court Rules 2016. Papuni's application was filed well beyond the 60 working days allowed by the statute for a late appeal. The court noted that rule 20.4(3) explicitly allowed for an extension of time only if the statute permitted it or did not limit the time for bringing the appeal. Given that section 116A(2) specifically precludes any late appeal beyond the 60 working days, the court was without jurisdiction to accept Papuni's application. The court also considered Papuni's subsequent proposal to amend the application to encompass a different tribunal decision but ultimately found that this was not tenable as it involved different considerations and would also fall outside the permissible time limits.

The court found that Papuni's application for leave to appeal out of time was dismissed for want of jurisdiction. The court suggested that Papuni should return to the tribunal with his decision confirming the dismissal of the leave to appeal and indicating that he wishes his application for recall to be determined. The court reserved costs, allowing the respondent an opportunity to seek costs if desired, with specific timelines set for the filing of any related memoranda and responses.

Orders