Yan v Real Estate Agents Authority
[2016] NZCA 443
•16 September 2016 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA87/2016 [2016] NZCA 443 |
| BETWEEN | HUI JUAN YAN |
| AND | REAL ESTATE AGENTS AUTHORITY |
| TONY CHANG Second Respondent |
| Hearing: | 12 September 2016 |
Court: | Wild, French and Brown JJ |
Counsel: | Applicant in person |
Judgment: | 16 September 2016 at 3.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 is declined.
BThe applicant must pay the second respondent costs for a standard application on a band A basis together with usual disbursements.
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REASONS OF THE COURT
(Given by French J)
Introduction
Ms Yan wishes to appeal a decision of Dunningham J in the High Court at Christchurch.[1] In her judgment Dunningham J upheld a decision of the Real Estate Agents Disciplinary Tribunal dismissing complaints made by Ms Yan against the second respondent, Mr Chang.
[1]Yan v Real Estate Agents Authority [2015] NZHC 2901.
Justice Dunningham’s decision was delivered on 19 November 2015. Ms Yan failed to file a notice of appeal in this Court within the requisite time frame. Accordingly, she now seeks an extension of time for bringing the appeal under r 29A of the Court of Appeal (Civil) Rules 2005.
The application is opposed by Mr Chang. The first respondent, the Real Estate Agents Authority, abides the decision of the Court.
Analysis
The period of delay was not long. The time for appealing expired on 17 December 2015. Ms Yan filed her application for an extension of time on 1 March 2016. The explanation for the delay is that Ms Yan, who is self-represented, made a mistake and filed an application for leave to appeal in the High Court. This was an error on two counts. First, Ms Yan did not require leave to appeal and secondly a notice of appeal should have been filed in this Court. Ms Yan did not realise her error until it was drawn to her attention by Dunningham J in a minute dated 2 February 2016.[2] The delay in itself has not prejudiced the respondent.
[2]Yan v Real Estate Agents Authority HC Auckland CIV-2015-404-1662, 2 February 2016 (Minute of Dunningham J).
Those factors all favour granting an extension of time.
However, in our view, they are outweighed by the fact the proposed appeal lacks merit. The appeal is brought under s 120 of the Real Estate Agents Act 2008. Section 120 limits the right of appeal to questions of law only.
Correctly analysed, none of the numerous grounds of appeal Ms Yan seeks to advance at appeal is a question of law. They involve challenges to findings of fact, complaints against counsel for Mr Chang, and allegations of wrongdoing under the Crimes Act 1961 against Mr Chang. Some of the allegations are new.
There is simply no point in this Court extending time for an appeal which this Court would not, under s 120 of the Real Estate Agents Act, have jurisdiction to deal with. In those circumstances we are satisfied it would not be in the interests of justice to grant an extension of time. The application for an extension of time is accordingly declined.
There is no reason to depart from the ordinary rule that an unsuccessful party should pay the successful party costs. We therefore order that Ms Yan pay costs to the second respondent for a standard application on a band A basis together with usual disbursements. We make no order in respect of the first respondent, which abided the Court’s decision and therefore did not need to appear.
Finally, we record that after the hearing, Ms Yan filed an application asking this Court to obtain the audio of the High Court hearing. This relates to an allegation Ms Yan makes about the transcripts in the Tribunal and the High Court being falsified. There is no proper evidential foundation for this allegation and obtaining the audio will not assist us. Her request is declined.
Solicitors:
Meredith Connell, Auckland for First Respondent
Glaister Ennor, Auckland for Second Respondent
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