YYD GROUP LIMITED (FORMERLY COSMO HOLDINGS LIMITED) AND ILANA SEAGER VAN DYK AND BRYCE SEAGER VAN DYK s
[2024] NZHC 2838
•1 October 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-204
[2024] NZHC 2838
BETWEEN YYD GROUP LIMITED (FORMERLY COSMO HOLDINGS LIMITED)
ApplicantAND
ILANA SEAGER VAN DYK AND BRYCE SEAGER VAN DYK
Respondents
Hearing: On the papers Judgment:
1 October 2024
JUDGMENT OF McHERRON J
(Application for leave to appeal)
Summary
[1] This judgment concerns YYD Group Ltd’s proposed appeals from two judgments:
(a)A District Court judgment dismissing YYD Group Ltd’s appeal from a Tenancy Tribunal decision ordering YYD Group to pay the respondents, Ms and Mr van Dyk, $3,500 exemplary damages plus the Tenancy Tribunal filing fee (District Court judgment);1
(b)A High Court judgment dated 3 May 2024 dismissing YYD Group Ltd’s application for review of the Deputy-Registrar’s decision to refuse to accept documents for filing (High Court judgment). 2
1 Cosmo Holdings Ltd v van Dyk [2024] NZDC 1624 (District Court judgment).
2 Cosmo Holdings Ltd v van Dyk [2024] NZHC 1071 (High Court judgment).
YYD GROUP LIMITED (FORMERLY COSMO HOLDINGS LIMITED) v VAN DYK [2024] NZHC
2838 [1 October 2024]
[2]In this judgment, I:
(a)allow YYD Group Ltd’s application for an extension of time to apply for leave to appeal from the High Court judgment;
(b)decline YYD Group’s application for leave to appeal from that decision.
[3] YYD Group can appeal the District Court judgment to this Court on a question of law but must engage legal counsel to do so. I suggest that the merits of such an appeal will be limited; and that further litigation is disproportionate to the relatively low monetary award YYD Group is required to pay.
Background
[4] Since 11 February 2021, the Residential Tenancies Act 19863 (the Act) has provided that fixed term residential tenancies of more than 90 days signed after that date become periodic tenancies at the end of the fixed term, unless:4
(a)the landlord and tenant agree otherwise;
(b)the tenant gives notice; or
(c)the landlord gives notice, using one of the specific reasons set out in the Act.5
[5] The applicant is a company, originally named Cosmo Holdings Ltd (Cosmo Holdings), which since 11 July 2024 has been renamed YYD Group Ltd (YYD
3 As amended by the Residential Tenancies Amendment Act 2020.
4 Residential Tenancies Act 1986 (Act), s 60A.
5 On 11 April 2024, the coalition Government announced changes to the Residential Tenancies Act 1986 including reintroducing landlords’ ability to give notice to end a fixed-term tenancy at the end of the term without requiring a specific reason. These changes have not yet been enacted, although a bill has been introduced and referred to select committee: Residential Tenancies Amendment Bill 45—1 (introduced 16 May 2024, currently before the Social Services and Community Committee). See cls 22, 27.
Group).6 YYD Group is described on the Companies Register as a residential property investment company. Its:
(a)sole shareholder is another company called YYD Trustee Ltd;
(b)sole director is Sandy Dai.
[6] As set out in the factual background section of the District Court judgment, the respondents, Ms and Mr van Dyk, entered into a one year fixed term tenancy of a property owned by YYD Group commencing on 1 February 2022 and ending on 31 January 2023.7 On 17 November 2022, Ms Dai emailed the respondents offering them a tenancy renewal for a further one year fixed term commencing 1 February 2023. Ms Dai indicated that if the respondents did not accept her offer she would be “required” to give them notice to end the tenancy. On 21 November 2022, the respondents replied asking whether they could move to a periodic tenancy after the fixed term expired. Ms Dai replied that this would not be possible as she did not offer periodic tenancies. On 23 November 2022, the respondents replied that their understanding was that their existing tenancy agreement would automatically convert to a periodic tenancy once the fixed term ended, and a reason must be provided for that not to happen. Ms Dai replied again that she only offered fixed term tenancies.
[7] On 28 November 2022, Ms Dai advised the respondents that she had sent them a notice to end the current fixed term. The respondents replied that the tenancy agreement could not be ended without a specific reason. Ms Dai replied purporting to rely on one of the specific reasons given in the Act allowing termination of a fixed term tenancy. The reason Ms Dai gave was that the owner of the rented premises required the premises within 90 days of the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.8
6 Despite this change, Ms Dai continues to use the old company name of Cosmo Holdings Ltd on her court documents. To do so would appear to contravene s 25 of the Companies Act 1993. There is also potential for confusion, as Ms Dai has since incorporated a new company called Cosmo Holdings Ltd (company number 9266046, incorporated on 2 August 2024).
7 District Court judgment, above n 1, at [3].
8 Section 51(1)(a) of the Act.
[8] On 13 December 2022, despite having indicated that the premises were needed “for family reasons”, YYD Group listed the premises on myRent.co.nz and several other websites as available for rent on a 12 month fixed tenancy available from 2 February 2023. On 22 and 28 December 2022, Ms Dai requested a time from the respondents for viewing by prospective new tenants.
[9] On 1 January 2023, YYD Group sent a further termination notice to the respondents. No reasons were given for the termination. On 2 January 2023, the respondents emailed Ms Dai pointing out that the notice was invalid because it had been issued without a valid reason. They pointed out that, although one of the earlier notices had said a family member would be moving into the property, YYD Group had relisted the property and scheduled viewings, suggesting that a family member was not moving there after all.
[10] The respondents applied to the Tenancy Tribunal claiming exemplary damages from YYD Group for performing an unlawful act, namely giving a retaliatory notice of termination and acting to terminate the tenancy without grounds. They gave notice that they did not wish to extend the tenancy and would be leaving at the end of the fixed term on 31 January 2023.
[11] In a decision dated 28 May 2023, the Tenancy Tribunal awarded the respondents $3,500 exemplary damages plus the $20.44 filing fee.9 The basis for the Tenancy Tribunal’s award of exemplary damages was that, in issuing the termination notice, YYD Group, through Ms Dai, committed an unlawful act intentionally. This justified an award of exemplary damages under s 60AA of the Act.
[12] The Tenancy Tribunal’s decision was upheld by the District Court on appeal.10 In the District Court judgment, Judge Tuohy concluded that YYD Group was firmly opposed to a periodic tenancy and contrived to avoid it.11 The Judge considered that the award of $3,500 exemplary damages was well justified, indeed on the low side. The Judge held:12
9 van Dyk v Cosmo Holdings Ltd [2023] NZTT 4472260 [Tenancy Tribunal decision].
10 District Court judgment, above n 1.
11 At [47].
12 At [49].
The landlord must have known the grounds advanced were not genuine and therefore the notice was not valid.
[13] On behalf of YYD Group, Ms Dai sought to appeal the District Court judgment to this Court. On 9 and 15 April 2024, she purported to file various documents. These documents were rejected for filing by the Deputy Registrar, on the basis that a director of a company is not permitted as of right to file documents on behalf of or represent that company.13
[14] Ms Dai disagreed with the Deputy Registrar’s decision and identified various reasons why, in her view, the Court of Appeal’s decision in Re G J Mannix Ltd supported her position that she should be able to represent YYD Group on an appeal from the District Court judgment. On 16 April 2024 the Deputy Registrar affirmed her decision to reject Ms Dai’s documents for filing.
[15] On 22 April 2024, Ms Dai purported to file a without notice interlocutory application seeking review of the Deputy Registrar’s decision to decline to accept her court documents for filing. Ms Dai also sought an order for stay of the proceeding.
[16] On 3 May 2024, in the High Court judgment, I dismissed Ms Dai’s application for review of the Deputy Registrar’s decision.14
[17] Ms Dai then purported to file an appeal from the High Court judgment, on behalf of YYD Group, in the Court of Appeal. In a minute dated 5 June 2024, Katz J pointed out that the Court of Appeal has no jurisdiction to consider YYD Group’s proposed appeal.15 That is because, in order to pursue an appeal from an interlocutory application, YYD Group would need to obtain leave pursuant to s 56(3) or s 56(5) of the Senior Courts Act 2016. Katz J also pointed out that, as any such application was out of time, YYD Group would also need to apply for an extension of time.
[18] Ms Dai then filed a document dated 7 June 2024 in the High Court entitled “Interlocutory application for Judge review without notice”. As I explained in my
13 The Deputy Registrar based her decision on the principles outlined in Re G J Mannix Ltd [1984] 1 NZLR 309 (CA).
14 High Court judgment, above n 2, at [24].
15 Cosmo Holdings Ltd v van Dyk CA 335/2024, 5 June 2024 (Minute of Katz J).
minute of 12 August 2024, this application was misconceived.16 I directed Ms Dai to serve her “Interlocutory application for Judge review without notice” on the respondents, (plus provide an affidavit of service). I was not prepared to determine the application for leave to appeal without ensuring the respondents had an opportunity to provide a response if they wished. I also dismissed Ms Dai’s application for stay of the proceeding under which YYD Group had been ordered to pay damages to its tenants.
[19] Ms Dai subsequently sought a review of Katz J’s decision under s 49(4) of the Senior Courts Act, necessitating a further judgment from the Court of Appeal declining the application for review.17 Courtney and Thomas JJ’s judgment confirmed that it is for the High Court in the first instance to determine whether to grant leave to appeal on interlocutory matters.18
[20] Rather than serve the original application on the respondents as directed, Ms Dai provided evidence that she served a new document dated 2 September 2024 and entitled “Notice of interlocutory application to High Court”. In that document, Ms Dai seeks “an order to grant an extension of time to appeal and an order to grant leave to appeal from [the High Court judgment]”. Ms Dai also renews her application for an order staying the proceeding pursuant to r 7.19.
[21] On 10 September 2024, I issued a minute directing the respondents to file any notice of opposition and affidavit of opposition by 23 September 2024.19 However I indicated that they could rely on their 18 August 2024 submissions if they wished, without needing to file any further opposition. The respondents did not file a notice of opposition or affidavit of opposition. However, in their 18 August 2024 submissions, they requested Ms Dai’s application for leave to appeal out of time be denied. They do not believe Ms Dai is pursuing her appeal in good faith. Instead, the respondents believe Ms Dai is seeking to frustrate them and the justice system.
16 Cosmo Holdings Ltd v van Dyk HC Wellington CIV-2024-485-204, 12 August 2024 (Minute No 1 of McHerron J).
17 YYD Group Ltd v van Dyk [2024] NZCA 407.
18 At [4].
19 Cosmo Holdings Ltd v van Dyk HC Wellington CIV-2024-485-204, 23 September 2024 (Minute No 2 of McHerron J).
[22] Against this background, I determine the primary issues raised in Ms Dai’s various documents provided to the Registry and the Court.
Extension of time for leave to appeal
[23] I considered it was appropriate in the interests of justice to allow YYD Group an extension of time to bring the application for leave to appeal.
Is an in-person hearing required?
[24] Although the respondents did not file any further documents, Ms Dai filed a further memorandum dated 15 September 2024 in which she submitted that both parties may benefit from an in-person hearing “to avoid any confusion that a Judge may have, and to resolve the difficulties in complying the Court Rules.”
[25] As I previously indicated, I do not consider it necessary to have an in-person hearing in relation to YYD Group’s application for leave to appeal the High Court judgment. For the reasons expressed by Miller J in The Party Bus Company Ltd v Attorney-General, I consider that the objective of the High Court Rules for just, speedy, and inexpensive determination of matters, can usually be met by a decision on the papers on an application for leave to appeal, where the judge is already familiar with the file and the application is usually of narrow compass.20
Criteria for leave to appeal
[26] The High Court judgment is a decision made on an interlocutory application, as defined in s 4 of the Senior Courts Act:
interlocutory application—
(a)means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—
(i)an order or a direction relating to a matter of procedure; or
(ii)in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and
20 The Party Bus Company Ltd v Attorney-General [2012] NZHC 445.
(b)includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies
[27] Ms Dai’s application was to review an order or a direction relating to a matter of procedure, and so falls within the above definition.
[28]Section 56(3) of the Senior Courts Act provides:
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
[29]The following criteria govern applications for leave to appeal:21
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the significance or implications of such error either for the particular case or for the applicant or as a matter of precedent must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[30] In summary, Ms Dai submits that leave to appeal should be granted for the following reasons:
21 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] and Ngai Te Hapu Inc vBay of Plenty Regional Council [2018] NZCA 291 at [17].
(a)She was “already before the Court in a personal capacity”. By this submission I understand Ms Dai to be saying that because she was permitted to represent YYD Group in the District Court and the Tenancy Tribunal, she should similarly be permitted to do so in the High Court.
(b)This is a “tenant-instigated dispute at the lowest Tribunal possible”.
(c)The appeals raise arguable and important issues of principle as to the Act.
(d)Appeals are necessary to “preserve the status quo and protect the public interest pending determination of the principal stay application”.
(e)Ms Dai is well qualified to represent YYD Group and has strictly complied with the Rules of Court.
(f)“Ms Dai has the right to represent the appellant as one-family business
… if the Judge sees fit in a particular case”.
(g)The nature of the proceeding is straightforward, the complexities of the dispute and the points upon which the audience is sought are low, and the amount of the award by the Tenancy Tribunal is minor.
My assessment
Ms Dai was allowed to represent YYD Group in the Tenancy Tribunal and District Court
[31] I do not consider that the fact Ms Dai was permitted to represent YYD Group in the Tenancy Tribunal and the District Court supports her being permitted to do so in the High Court. This point was considered by the Court of Appeal in Honda New Zealand Ltd v New Zealand Boilermakers' etc, Union.22 Delivering the judgment of the Court, Hardie Boys J referred to the rule in Re G J Mannix Ltd — that there is
22 Honda New Zealand Ltd v New Zealand Boilermakers’ etc, Union [1991] 1 NZLR 392 (CA).
no right of audience save by the litigant in person or by a qualified lawyer; and an incorporated body, such as a company or a union, being incapable in law of appearing in person, must necessarily be represented by counsel. Hardie Boys J mentioned that from time to time unions desired to be represented in the Court of Appeal by an official or a professional advocate who is not a practising barrister. Section 299 of the (then) Labour Relations Act 1987 expressly provided for representation of that kind before the Labour Court and there could be no question as to the desirability and usefulness of that provision.
[32] Similarly, s 93(5) of the Act permits a corporation or an unincorporated body of persons to be represented by representative who is approved by the Tenancy Tribunal if the representative is an officer or employee or a member of the corporation or body or holds a majority interest in it. But that provision does not apply to appeals from a Tribunal decision. As Hardie Boys J observed, “in the superior Courts — the High Court and [the] Court [of Appeal] — the position is different.”23
Tenant-instigated dispute at the “lowest Tribunal possible”
[33] The fact that, as Ms Dai says, the dispute was instigated by YYD Group’s tenants in the Tenancy Tribunal, which she describes as “the lowest Tribunal possible” has no relevance to whether leave should be granted to her to appeal the High Court judgment. In any event, Ms Dai was permitted to represent the company at first instance in the Tribunal. Since then, YYD Group brought an appeal to the District Court, where Ms Dai was also permitted to represent the company. Now, Ms Dai seeks to bring a second appeal to the High Court, and also, presumably to represent YYD Group in the appeal to the Court of Appeal at issue here. Her observations as to who initiated the proceeding and the low level of the Tribunal are therefore no longer apt.
Arguable and important issues of principle as to the Act
[34] Appeals under the Act to the High Court are limited to questions of law.24 Yet Ms Dai’s voluminous notice of appeal seeks impermissibly to re-argue several factual
23 At 397.
24 Section 119 of the Act.
matters on appeal. Nor does the notice of appeal clearly articulate any arguable error of law in the District Court judgment.
Need to preserve the status quo/protect the public interest
[35] This matter involves an award of exemplary damages of $3,500. The small amount of money at stake suggests the pursuit of YYD Group’s claim is not genuinely in the public interest. Rather, ongoing litigation is disproportionate to the matters at stake and therefore an abuse of process. If I am wrong on this point, YYD Group may pursue an appeal and “preserve the status quo” (by which I understand Ms Dai to mean challenge the Tribunal’s decision and the District Court judgment it must pay money to its former tenants), by instructing a lawyer to commence an appeal on a question of law on its behalf. YYD Group has not established any need to protect the public interest or preserve the status quo justifying Ms Dai being authorised to represent YYD Group in its appeal.
Ms Dai is well qualified to represent YYD Group and has strictly complied with the Rules of Court
[36] In Honda New Zealand Ltd v New Zealand Boilermakers’ etc, Union, Hardie Boys J also noted that appeals from the Labour Court were limited to points of law, “and in such matters persons unqualified in law are unlikely to be of great assistance either to this Court or to their own cause.”25
[37] Ms Dai is unqualified in law and, from the prolix and unfocused nature of her court documents, and her numerous procedural missteps, Hardie Boys J’s observations as to the lack of utility of lay-representation of corporate litigants apply in respect of her engaging in a further appeal to this Court.
Ms Dai has the right to represent the appellant as one-family business … if the Judge sees fit in a particular case
[38] As confirmed in Re G J Mannix, a company has no right to be represented in the conduct of a case in the High Court except by a barrister or solicitor. The Mannix
25 Honda New Zealand, above n 22, at 397.
rule has been reaffirmed in subsequent decisions of this Court and the Court of Appeal.26
[39]Hardie Boys J acknowledged that:27
The rule is not absolute. The Court has a discretion to allow lay representation, but it is a discretion that will be exercised sparingly, only for good reason, such as in an emergency situation where counsel is not available, or in particularly straightforward matters where the assistance of counsel is not needed by the Court, or where it would be unduly technical, burdensome or costly to insist on counsel.
[40] In 2011, the Rules Committee considered the issue of company representation. At that time, the District Courts Rules permitted an authorised officer or a duly authorised agent of the body corporate to sign court documents on behalf of a body corporate.28 However, that is no longer expressly permitted under the Rules. In any event, by “clear unanimous consensus”, the High Court Judges on the Rules Committee (who had just discussed the issue at a conference) considered that the rule in Re G J Mannix works well and that no change was required. In the minutes for its 3 October 2011 meeting, the Rules Committee referred to a submission from the New Zealand Law Society strongly expressing that there should be no change. The Committee concluded:29
The primary objection to allowing laypersons to represent companies is the danger that a class of persons that may represent companies but are ill- equipped to do so will emerge, hampering the efficiency of court processes. The Committee agreed that there was no real need for change and that the position could remain as it stands in Re Mannix.
[41] In accordance with Re G J Mannix, the Court retains a discretion to allow for non-lawyers to file documents or appear for a company, but this is for exceptional circumstances only. I am satisfied this is not such a case. In my view, based on the documents she has purported to file, Ms Dai is ill-equipped to represent YYD Group.
26 Ponsonby Chambers v New Zealand Police [2024] NZHC 2680, citing New Zealand Cards Ltd v Ramsay [2012] NZCA 285, and Dreamtech Designs and Productions Pty Ltd v Clown Fish Entertainment Ltd [2015] NZCA 491 at [6].
27 Honda New Zealand, above n 22, at 397.
28 District Courts Rules 2009, r 2.5(b).29 Rules Committee Minutes of Meeting of 3 October 2011 (Judicial Office for Senior Courts, Wellington, 6 October 2011) at Item 4.
Allowing her to do so will continue to hamper the efficiency of this Court’s processes and obstruct the ability of the respondents to recover the money that is owing to them.
Straightforward nature of the proceeding; low amount of the award
[42] The fact the proceeding is straightforward and the amount of the award is low does not support Ms Dai being allowed to represent YYD Group. Rather, in my view, the opposite is true. From the documents she has purported to file, I am unable to discern any arguable legal error in the District Court judgment that would make further litigation worthwhile. Rather, it is apparent that Ms Dai’s primary motivation is merely to obstruct the respondents’ right to recover the exemplary damages they have been awarded in condemnation of YYD Group’s behaviour towards them. In these circumstances, it would not be a proper use of this Court’s processes and antithetical to the interests of justice to exempt YYD Group from the usual rule relating to company representation.
Is a stay appropriate?
[43] For the same reasons I gave in my 12 August 2024 minute, I do not consider that it is necessary or appropriate to order a stay of the proceeding, originating in the Tenancy Tribunal, under which YYD Group has been ordered to pay damages to its tenants. There is no particular need to preserve YYD Group’s position against the event of the appeal succeeding. Nor will the lack of a stay render the appeal nugatory. Rather, the successful parties in the Tribunal’s proceeding are likely to be adversely impacted by the stay. I am concerned that their interests would not be sufficiently protected if a stay were to be ordered. Moreover, my initial impression of the underlying appeal from the District Court judgment is that it lacks merit.
Greendrake criteria
[44] Returning to the criteria identified above at [29], I do not consider that YYD Group’s application meets the high threshold for leave to appeal to the Court of Appeal. No arguable error of law, let alone one of general or public importance, has been identified in the High Court judgment. YYD Group is still able to appeal to this
Court from the District Court judgment on a question of law, but it will be required to instruct a lawyer to represent it.
Conclusion
[45] For these reasons, I do not consider that the interests of justice would be served by granting leave to appeal from the High Court judgment.
Result
[46] I allow YYD Group an extension of time to apply for leave to appeal from the High Court judgment. However, leave to appeal from that judgment is declined.
McHerron J
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