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 on jurisdiction he appropriately accepted, in light of s 116A and r 20.4, that there was indeed no jurisdiction for the application in respect of the 24 February 2021 decision he wished to challenge. At this point Mr Papuni submitted that his application could be amended so as to encompass an entirely different decision of the Real Estate Agents Disciplinary Tribunal, a Minute dated 4 April 2022 made by the chair of that Tribunal, D J Plunkett, upon an application by Mr Papuni to recall the Tribunal’s decision of 24 February 2021.

[8]                 Somewhat unusually it appears that the Tribunal did not determine Mr Papuni’s application for recall but instead stayed the application, apparently to give Mr Papuni a chance to explore alternative remedies, including whether he had any right of appeal to the High Court as well as the possibility of disciplinary proceedings against counsel involved in the hearing that led to the 24 February decision.

[9]                 As I discussed with Mr Papuni and Mr Nottingham, the suggestion that the present application can be amended is not tenable. It involves a completely different decision and indeed different considerations, especially as any application for leave to appeal the 4 April 2022 Minute would fall within s 116A(2), requiring consideration of whether exceptional circumstances exist. Mr Papuni and Mr Nottingham ultimately agreed with this interpretation, with the result being that the application to amend was not ultimately pursued.

[10]             Instead, as I discussed with Mr Papuni and Mr Nottingham, the appropriate course appears to be that Mr Papuni should now go back to the Tribunal with this

decision confirming that his application for leave to appeal out of time has been dismissed and confirming that he wishes his application for recall to be determined. In this regard I observe it is difficult to see why any application for recall would need to be stayed pending consideration of alternative remedies as these are not relevant to the test set out in Horowhenua County v Nash (No 2),1 noting in particular that any complaint made under the Lawyers and Conveyancers Act 2006 is not relevant to the Tribunal’s consideration of Mr Papuni’s recall application (and any evidence filed in support), which must be determined on its own merits.

[11]             In the meantime, Mr Papuni’s application for leave to appeal out of time must be and is dismissed. Costs are reserved. Should the respondent seek costs a memorandum is to be filed by 5 pm on 14 June 2022 and any response by Mr Papuni by 5 pm on 21 June 2022.

Powell J

1      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).