Raue v Harcourts Hamill Realty Ltd - [2023] NZCA 508

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA298/2022
[2023] NZCA 508

BETWEEN	KATHERINE RAUE Applicant
AND	HARCOURTS HAMILL REALTY LTD First Respondent JUDITH GUNN Second Respondent

Court:	Gilbert and Katz JJ
Counsel:	Applicant in person K D Perry and A N Wainstein for First Respondent J R Parker for Second Respondent
Judgment: (On the papers)	20 October 2023 at 2:00 pm

JUDGMENT OF THE COURT

A The application for an extension of the time to apply for the allocation of a hearing date and file the case on appeal is declined.
BThe applicant must pay each of the respondents’ costs calculated for a standard interlocutory application on a band A basis, and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Introduction

Ms Raue applies for an extension of time to file her case on appeal and apply for the allocation of a hearing date.[1] The respondents, Harcourts Hamill Realty Ltd and Miss Gunn, oppose the application.

Background

[1]Court of Appeal (Civil) Rules 2005, r 43.

Ms Raue was a tenant in a residential property owned by the second respondent, Miss Gunn. Harcourts managed the property, as Miss Gunn’s agent.
Harcourts applied to the Tenancy Tribunal to terminate Ms Raue’s tenancy on the basis of non-payment of rent.[2] At the time of the application Ms Raue was alleged to be $3,252.86 (almost 70 days) in arrears.[3]
[2]Raue v Harcourts Hamill Realty Ltd [2022] NZHC 923 [judgment under appeal] at [8].
[3]At [8].
Harcourts had previously filed an application to terminate the tenancy on the basis that Ms Raue was harassing and abusing their property manager and refusing to allow access for maintenance and inspections.[4] Ms Raue then avoided engaging with Harcourts at all, saying that she would deal instead directly with Miss Gunn.[5] Miss Gunn, however, is elderly and lives in a rest home. Although at the relevant time she was mentally alert and had legal capacity, she suffered from debilitating physical ailments, difficulties with using her phone and had no access to computers.[6] Miss Gunn had therefore executed an enduring power of attorney (EPA) in favour of her brother, Roger Gunn.[7] It appears that Harcourts may have been engaged by Mr Gunn. The Tribunal (which had been provided with a copy of the EPA and Harcourts management agreement) was satisfied that Harcourts were Miss Gunn’s duly appointed agent.[8]
[4]At [8]
[5]At [7].
[6]At [4].
[7]At [7].
[8]At [13].
The Tribunal made various interim orders on 17 July 2020 to give Ms Raue an opportunity to “put things right”.[9] Having noted that by 28 July 2020 Ms Raue would have accrued $6,600 in rental arrears, the Tribunal ordered her to make a payment of $1,200 to Harcourts by that date and to also commence making weekly payments of $330 (the normal rent payable under the tenancy agreement), with the first such payment to be made to Harcourts on or before 29 July 2020. The Tribunal further ordered that if Ms…

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.

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Details

Case: [2023] NZCA 508
Decision Date: 20 October 2023 at 2:00 pm

CaseChat Overview and Summary

Ms Raue has applied for an extension of time to file her case on appeal and apply for the allocation of a hearing date. The respondents, Harcourts Hamill Realty Ltd and Miss Gunn, oppose the application. The Court of Appeal declined Ms Raue's application for an extension of time and ordered her to pay the respondents' costs. The Court found that Ms Raue's application was filed at the eleventh hour, six months after the notice of appeal had been filed, and three months after the time period for filing a case on appeal provided for in the Rules had expired. The Court considered the length of the delay, the reason for the delay, the conduct of the parties, any prejudice to the respondents, and the significance of the issues raised by the proposed appeal, both to the parties and more generally. The Court found that Ms Raue's explanation for the delay did not provide an adequate explanation for the significant delay in filing the case on appeal. The Court also found that the appeal has little or no realistic prospect of success and that further delay is prejudicial to the respondents, especially Miss Gunn, who is elderly and of limited means. The Court therefore declined Ms Raue's application for an extension of time and ordered her to pay the respondents' costs.

The Court found that the appeal does not involve matters of general or public importance and relates to a specific tenancy between Ms Raue and Miss Gunn. The Court further found that the scope of the appeal is relatively narrow and that preparing the case on appeal should have been a relatively straightforward task, even taking into account that Ms Raue is self-represented. The Court found that the respondents have been put to unnecessary expense due to Ms Raue's failure to file her case on appeal within time and, as a result, had to seek an indulgence from the Court. The Court therefore ordered that Ms Raue must pay each of the respondents' costs calculated for a standard interlocutory application on a band A basis, and usual disbursements.

Orders