FRANICEVIC v KGH TRUST [2016] NZHC 2075
Leave to appeal the High Court's interlocutory decision was not required because such a High Court decision on appeal from the District Court is an original decision and is appealable as of right; accordingly leave is declined. The earlier refusal to grant a stay was appropriate because the substantive appeal lacked...
Source-derived case information.
- Citation
- [2016] NZHC 2075
- Parties
- Appellant: Jennifer Anne Franicevic; Respondent: KGH Trust
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 2 September 2016
- Procedural Posture
- Appeal Against Determination of the Tenancy Tribunal / Interlocutory Appeal Concerning Stay of District Court Decision and Application for Leave to Appeal to the Court of Appeal
- Outcome
- Application for leave to appeal to the Court of Appeal declined; prior refusal to grant stay maintained; substantive appeal assessed as having slim merits
- Legal Topics
- Stay Pending Appeal, Leave to Appeal, Right to Cross Examine in Tribunal, Question of Law, Interlocutory Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jennifer Anne Franicevic
Appellant
KGH Trust
Respondent
Procedural Posture
Appeal Against Determination of the Tenancy Tribunal / Interlocutory Appeal Concerning Stay of District Court Decision and Application for Leave to Appeal to the Court of Appeal
Legal Issues
- 1 Whether a stay of the District Court decision should be granted pending appeal
- 2 Whether High Court leave was required to appeal an interlocutory decision made by the High Court on appeal from the District Court
- 3 Whether the Tenancy Tribunal provides a right to cross-examination and whether failure to seek it affects appeal merits
Ratio Decidendi
Leave to appeal the High Court's interlocutory decision was not required because such a High Court decision on appeal from the District Court is an original decision and is appealable as of right; accordingly leave is declined. The earlier refusal to grant a stay was appropriate because the substantive appeal lacked a question of law and had slim merits.
Court Disposition
Application for leave to appeal to the Court of Appeal declined; prior refusal to grant stay maintained; substantive appeal assessed as having slim merits
Orders
- Application for leave to appeal to the Court of Appeal declined
- Earlier application for stay refused (decision of 28 June 2016)
Full Case Text
Judgment text and source record
1 paragraphs
FRANICEVIC v KGH TRUST [2016] NZHC 2075 [2 September 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2016-485-449[2016] NZHC 2075IN THE MATTER of an appeal against a determination of theTenancy TribunalBETWEEN JENNIFER ANNE FRANICEVICAppellantAND KGH TRUSTRespondentHearing: 24 August 2016Appearances: Appellant in personP J Kennedy and A J Green for RespondentJudgment: 2 September 2016JUDGMENT OF WILLIAMS J[1] Ms Franicevic has an appeal to this Court against the decision of the District Court upholding the decision of the Tenancy Tribunal. Pending the appeal, she applied for a stay of the District Court decision.[2] On 28 June, I heard the application and declined to grant the stay. She then applied for leave to appeal the stay decision to the Court of Appeal. I heard the application on 24 August. An interlocutory decision made by the High Court on appeal from a District Court decision is an original decision, and accordingly, is appealable as of right.1 Accordingly, the High Court's leave is not required, andmust be declined accordingly.[3] One other point to note is that in my earlier judgment, I found that the merits of the substantive appeal were slim because no question of law was disclosed. I1 Siemer v Heron [2011] NZSC 133, [2012] NZLR 309 at [31] and [34].incorrectly stated that there is no right of cross-examination in the Tenancy Tribunal. As it transpires, s 93 of the Residential Tenancies Act 1993 does provide such a right. However, Ms Franicevic did not ask to cross-examine in the Tribunal. Accordingly, this does not change my earlier analysis that the merits of the appeal are slim, and that, accordingly, the merits of the stay application are not strong. And none of the other grounds raises a question of law.Williams J