MEMELINK AS TRUSTEE OF LINK TRUST NO.1 v BODY CORPORATE 378945 [2020] NZCA 575 [18 November 2020]

MEMELINK AS TRUSTEE OF LINK TRUST NO.1 v BODY CORPORATE 378945 [2020] NZCA 575[18 November 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA518/2020[2020] NZCA 575BETWEEN HARRY MEMELINK AS TRUSTEE OFLINK TRUST NO.1ApplicantAND BODY CORPORATE 378945RespondentCourt: Gilbert and Collins JJCounsel: D G O Livingston for ApplicantD G Dewar for RespondentJudgment:(On the papers)18 November 2020 at 3 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay costs to the respondent for a standard application ona band A basis and any usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] This is an application for special leave to appeal against a decision ofthe High Court dismissing an appeal against a decision of the District Court strikingout an appeal from an order made by the Tenancy Tribunal (the Tribunal). The appealwas struck out on the basis that the notice of appeal was filed outside the statutorytime limit and there was no power to extend the time limit.[2] The applicant, Harry Memelink, is one of the trustees of Link Trust No.1 whichowns a unit in the Grand Theatre Apartments in Lower Hutt. In July 2018,the respondent body corporate lodged a claim in the Tenancy Tribunal for unpaidoperating expenses, interest and costs. The operating expenses were paid prior tothe claim being determined. On 7 August 2019, the Tribunal ordered Mr Memelinkand the other trustee, Lynx Trustees Ltd (now in liquidation), to pay the sum of$9,694.35 comprising interest and costs.1[3] In the meantime, on 28 August 2018, Mr Memelink was adjudicated bankrupt.The respondent filed a proof of debt in Mr Memelink's bankruptcy for the amountawarded. The Official Assignee admitted the proof in the sum of $7,210.35 but notfor the balance of $2,484 which related to costs incurred after the date ofthe bankruptcy. Mr Memelink filed proceedings in the High Court challenging variousdecisions of the Official Assignee, including the decision to admit the respondent'sproof in part. However, he abandoned this aspect of his challenge prior to the hearing.2The amount remaining in dispute is therefore only $2,484.[4] Mr Memelink wished to appeal against the Tribunal decision, but he failed todo so within the time limit prescribed in s 117(6) of the Residential Tenancies Act1986 (the Act) which requires that any notice of appeal be filed within 10 workingdays after the date of the decision to which the appeal relates. Mr Memelink claimsthat the registry staff at the District Court did not provide correct guidance onthe required form until after the appeal period had expired. Mr Memelink's appealwas subsequently struck out by the District Court on 28 February 2020 on the basis itwas not brought within time and there was no power to extend the time limit.3[5] Mr Memelink appealed to the High Court. Notwithstanding the clear terms ofs 117(6), he contended that the time for appeal could be extended by the Tribunal unders 96(2) of the Act:1 Body Corporate 378945 v Lynx Trustees Ltd [2019] NZTT Hutt Valley 9009301 [Tribunaldecision].2 Memelink v Official Assignee [2020] NZHC 2709 at [1]–[2] and [80].3 Lynx Trustees Ltd (in liq) v Body Corporate 378945 [2020] NZDC 3293 [District Court judgment].96 Further provisions relating to procedure generally(2) The Tribunal may, on the application of any party to any proceedingsbefore the Tribunal,—(a) extend any time limit; or(b) if it is satisfied that the other party will not be prejudicedthereby, waive compliance by the applicant with any otherprocedural requirement,—prescribed by or under this Act and relating to the proceedings.[6] Cooke J dismissed the appeal for reasons set out in a judgment delivered on25 June 2020.4 The Judge agreed with the District Court that there was no jurisdictionfor it to extend the statutory time limit for bringing an appeal.5 Cooke J subsequentlydeclined Mr Memelink's application for leave to appeal to this Court.6[7] Mr Memelink now applies for special leave to appeal to this Court under s 120of the Act. This Court may only grant such leave if, in its opinion, the appeal involvesa question of law that, because of its general or public importance or for any otherreason, ought to be submitted to the Court for its decision.7 The threshold for the grantof such leave is high.8[8] Mr Memelink accepts there is no provision in the Act empoweringthe District Court to extend the 10 working day time limit for filing any notice ofappeal prescribed by s 117(6) of the Act. However, he contends that the Tribunal canextend this time limit in exercise of its powers under s 96. If such an extension isgranted, an appeal to the District Court could then be brought. Mr Memelink states inhis application for leave to appeal that, if leave is granted, he would seek a judgmentfrom this Court in the form of a declaration that the Tribunal may extend the time limitfor appeals to the District Court if a party to Tribunal proceedings makes such anapplication to the Tribunal.4 Memelink v Body Corporate 378945 [2020] NZHC 1461 [High Court judgment].5 At [17].6 Memelink v Body Corporate 378945 [2020] NZHC 2152 [Leave judgment].7 Residential Tenancies Act 1986, s 120(3).8 Cook v Housing New Zealand Corporation [2014] NZCA 504 at [3]; and Waller v Hider [1998] 1NZLR 412 (CA) at [413].[9] The application does not meet the criteria for special leave for a further appealto this Court. The point Mr Memelink seeks to raise on the proposed appeal is notseriously arguable. The time limit prescribed by Parliament in s 117 of the Act forthe filing of any notice of appeal in the District Court cannot be overcome by recourseto the Tribunal under s 96. The latter provision applies only to time limits prescribedunder the Act and relating to proceedings before the Tribunal. The proposed appealhas insufficient prospect of success to justify the cost and delay of a further appeal.Moreover, even if we were persuaded that the proposed appeal raised a question oflaw capable of bona fide and serious argument, this would not be an appropriate caseto consider it given the extremely modest sum in issue and the lack of any identifieddefence to the Tribunal's substantive order.[10] The respondent seeks indemnity costs but does not set out the basis for suchan award or provide any details of the amount sought. In the circumstances, weconsider it is appropriate to award scale costs, as was awarded in the High Court onboth the substantive appeal and the leave application.9Result[11] The application for leave to appeal is declined.[12] The applicant must pay costs to the respondent for a standard application on aband A basis and any usual disbursements.Solicitors:Livingston & Livingston, Wellington for ApplicantThomas Dewar Sziranyi Letts, Lower Hutt for Respondent9 High Court judgment, above n 4, at [18]; and Leave judgment, above n 6, at [11].