MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT v BELL [2018] NZHC 1662

MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT v BELL [2018] NZHC 1662 [6 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-3031[2018] NZHC 1662UNDER the Building Act 2004 and the CriminalProcedure Act 2011IN THE MATTER of an appeal pursuant to s 340 of theBuilding Act 2004 and s 296 of the CriminalProcedure Act 2011BETWEEN MINISTRY OF BUSINESS INNOVATIONAND EMPLOYMENTApellantAND JEFFREY BELLRespondentHearing: 14 June 2018Appearances: M Bryant and EGR Dowse for the PlaintiffM R Taylor for the Respondent (leave to withdraw)Respondent in person as observer onlyJudgment: 6 July 2018JUDGMENT OF MUIR JThis judgment was delivered by me on Friday 6 July 2018 at 3.30 pmPursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:Counsel/Solicitors:M J Bryant, Crown Law, WellingtonEGR Dowse, Crown Law, WellingtonM R Taylor, Barrister, AucklandIntroduction[1] This is an appeal (and associated leave application pursuant to s 34 of theBuilding Act 2004) by the Ministry of Business, Innovation and Employment (MBIE)against a decision of Judge Gibson in the District Court 1. That decision was, in turn,on appeal from a decision of the Building Practitioners Board (the Board). Theunderlying issue concerns whether the respondent Mr Bell, a licensed buildingpractitioner, was required under s 88(1) to file a "record of work" with the relevant"territorial authority" when he ceased working on renovations to a house owned by aMr Lu, being (arguably) restricted work. Mr Lu was the original complainant, but isnot a party to this appeal.[2] On 27 February 2018, Hinton J directed that the application for leave and thesubstantive appeal were to be determined together.2 For the reasons I set out below Iconsider both the application for leave and substantive appeal are both appropriatelyallowed.Factual Background[3] Mr Bell was engaged by Mr Lu to renovate a garage by transforming it into aliving room and bedrooms in late 2014. A building consent was applied for and wasgranted.[4] Mr Lu dismissed Mr Bell in May 2015 before the work was completed,engaged a new builder to finish the work, and submitted a complaint to the Board.The complaint was received on 12 June 2015. It alleged that Mr Bell carried out thework in a negligent or incompetent manner, and that the work did not comply with thebuilding consent. These are among the grounds on which the Board may disciplinebuilding practitioners.3[5] The Registrar of the Building Practitioners Board prepared a report for theBoard to assist in its assessment. The purpose of such report is to provide a neutral1 Bell v Lu [2017] NZDC 23847.2 Ministry of Business, Innovation and Employment HC Auckland CIV-2017-404-003031, 27February 2018 (Minute) at [4].3 Building Act 2004, s 317(1).summary of the facts that are agreed and those that are in dispute as per thesubmissions of the parties, which were likewise provided to the Board.4 The unusualfeature of the Registrar's report in this case was that it included an additional groundof complaint to those identified by Mr Lu. That ground was that Mr Bell had notprovided a "record of work" to Mr Lu and the relevant "territorial authority" as theRegistrar stated he was required to do under s 88(1) of the Act in respect of "restrictedbuilding work". This was the only ground the Board found was made out. It orderedMr Bell to pay a penalty of $500 and a further $500 towards the costs of and incidentalto the Board's enquiry.District Court decision[6] Mr Bell appealed to the District Court against the ruling of the Board. He didso on the following bases:(a) the Board did not have jurisdiction to penalise him for not filing arecord of work because it was not a ground raised in the originalcomplaint;(b) the plain meaning of s 88(1) only required Mr Bell to provide a recordof work when the restricted work in question had been completed, andthat "completed" meant when the work was finished and did not includea situation where a builder's contract had been terminated beforecompletion;(c) the work carried out did not require a building consent—although onewas issued that covered the work—so the work was not "restrictedbuilding work" and s 88 did not apply.[7] Judge Gibson found the Board did have jurisdiction to consider other breachesof discipline discovered in the course of its investigation, and not raised in the initialcomplaint. There is no cross-appeal for that finding.4 Building Practitioners (Complaints and Disciplinary Procedures) Regulations 2008, reg 8. Seealso the comments of Judge McElrea in Beattie v Far North District Council DC Whangarei CIV-2011-088-313 14 November 2012 at [28].[8] In respect of the second ground, the Judge considered that the obligation ofeach licensed building practitioner to file a record of work under s 88(1) accrues whenthey cease to work on the project, regardless of the overall state of completion of suchproject. He noted that to construe the obligation otherwise would mean only the lastlicensed building practitioner would be obliged to file a record of work. He found thatthis could not have been what Parliament intended as the purpose of the provision wasto ensure the extent of any consented work was made known to the owner and theterritorial authority.[9] However, the Judge further considered that the obligations in s 88 must be readin the context of s 87, which requires that an owner inform the building consentauthority (which can be a different body from a territorial authority) of the names ofany licensed building practitioners who are engaged to carry out or supervise restrictedbuilding work under a building consent. It further requires that when a licensedbuilding practitioner ceases to do or supervise restricted building work under abuilding consent, the owner must give notice to the building consent authority of thatfact.[10] The Judge regarded the decision of the District Court in Ali v Kumar as helpfulin assessing the combined effect of these sections and, in particular, the followingparagraphs:5[44] The board noted at [65] that there may be situations where apractitioner will not be involved in the work at its completion. It then said:The board has consistently held that in such circumstances,regardless of the reasons why the work cannot be completed, thelicensed building practitioners restricted building work under thebuilding consent will, in effect, have been completed as they willnot be able to carry out any further restricted building work. Torequire otherwise would mean that a record of work would neverbe due and this would defeat the reason why records of workwere brought into being.[45] However, this analysis seems to overlook completely the provisionsof s 87. That provides firstly that before restrictive work commences theowner must give the building consent authority the name of every licensedbuilding practitioner who will be engaged in carrying out or supervising therestricted building work.5 Ali v Kumar [2017] NZDC 23582 at [44]-[48].[48] The time frame is governed by s 87 which requires the owner to notifythe building consent authority if the practitioner ceases to be engaged inrespect of the work. The owner is obliged to notify the name of ay newpractitioner engaged. The building consent authority will then be in a positionto demand, if necessary, a record of work to the point his engagement ceasedin the event that the practitioner has not already done that of his own volition.[11] The Judge considered that the obligation in s 88 of the Act could not be seenin isolation from s 87 for the reasons set out in Ali v Kumar. Applying that decision,he held that the requirement to file a record of work only accrued when the owner hadfulfilled his or her obligations under s 87. Applying this framework, the Judge heldthat as Mr Lu had not given notice to the territorial authority (by which, I assume, hemeant the building consent authority, being the authority to whom the obligation unders 87 is owed), the obligation on Mr Bell to file a record of work never crystalised. Heheld, therefore, that Mr Bell was not in breach of the requirement to file a record ofwork.6[12] As to the final point on appeal—whether the work was restricted work—theJudge held that, had it been necessary to decide that point (which based on his decisionit was not), he would have referred the matter back to the Board to determine whetherthe work was restricted work.7Application for leave to appeal[13] MBIE appeals only the finding that the fulfilment of an owner's obligationunder s 87 is a precondition to a licensed building practitioner's obligation to providea record of work under s 88.[14] It does so under s 340 of the Act, which permits appeals from the District Courtto the High Court against "any determination of law arising in the appeal".8Subsection (3) in turn provides "Subpart 8 of Part 6 of the Criminal Procedure Act2011 (CPA) applies as far as applicable with the necessary modifications to everyappeal under this section". Subpart 8 concerns appeals on questions of law. However,6 Bell v Lu [2017] NZDC 23847 at [28]–[30].7 Pursuant to s 337 of the Act.8 Building Act 2004 s 340(1).Subpart 8 contains two procedures for two different types of appeal: a first appeal anda second appeal, and it is not immediately apparent which applies in this case.[15] A first appeal is an appeal against the decision of the "trial court", and is to the"first appeal court". Section 297 defines which Court is the "first appeal court":297 First appeal courtsThe first appeal court for an appeal under this subpart is—(a) the District Court presided over by a District Court Judge, if the appealis against a ruling by the District Court presided over by 1 or moreCommunity Magistrates or 1 or more Justices of the Peace; or(b) the High Court, if the appeal is against a ruling by the District Courtpresided over by a District Court Judge, other than a ruling–(i) made in proceedings for a category 3 offence after the personcharged elected a jury trial; or(ii) made in proceedings for a category 4 offence; or(c) either the Court of Appeal or the Supreme Court, in any other case.[16] Leave is required to commence a first appeal,9 but there are no explicitstatutory criteria that an appeal must meet in order for the Court to grant leave.[17] A second appeal is an appeal against the determination of the first appealcourt.10 When the first appeal court is the District Court, the second appeal court isthe High Court.11 Leave is also required for a second appeal. However, s 303(2)provides that the second appeal court must not grant leave unless satisfied that theappeal involves a matter of general or public importance or that there is a possibilityof a miscarriage of justice.[18] There is sparse case law on point. Indeed, the only appeal under s 340 whichappears to have come before the Court is that in Beattie v Licensed BuildingPractitioners' Board. Mr Beattie had appealed a decision of the Board to the DistrictCourt, and the District Court had made an order for security for costs against him.12 It9 Criminal Procedure Act 2011, s 296(2).10 Section 303.11 Section 304.12 Beattie v Licensed Building Practitioners' Board [2015] NZHC 1903.was his procedural decision that was appealed to this Court. There is no discussion inthe case about the application of Subpart 8 Part 6 of the CPA. It appears the partiesdid not turn their mind to it or the case was for some other reason considered to falloutside the s 340 framework. In any event it is not helpful on the procedural point thatarises in the present case.[19] MBIE submits that this is a first appeal. Since I would grant leave irrespectiveof whether that categorisation is correct it is not essential that I decide the point but,to the extent it may be relevant to any future appeal, I discuss it below. The questionis what procedure under Subpart 8 best applies, and what modifications are necessary,to best facilitate it governing appeals under s 340.[20] MBIE says that the scheme of Subpart 8 envisages a process by which there isa first appeal on a question of law, and then a procedure for challenging thatdetermination through a second appeal. They say that as the appeal against thedetermination of the Board was not a first appeal on a question of law, this appealwould be the first such appeal; therefore, it should be treated as a first appeal for thepurposes of Subpart 8. They also argue that, as the right of appeal to the District Courtis governed by ss 330-339 of the Building Act, and not Subpart 8, the appeal to theDistrict Court could not be characterised as a first appeal for the purposes of Subpart 8.[21] If I were to adopt this approach, the "necessary modification" to Subpart 8 isto treat the District Court as the trial court for the purpose of s 296. "Trial Court" ishelpfully defined in s 5 as "the court before which the defendant is to be tried". Inthe circumstances of the Building Act, the body before which the defendant is "tried"is the Board. It is the body that has original jurisdiction to receive, investigate anddetermine the substance of a complaint, and then impose a range of penalties.13Although the District Court hears appeals by way of rehearing,14 it does not do so ona de novo basis. It acts in a wholly appellate capacity. If the choice is between theDistrict Court being described as a "trial court" or "first appeal court", the latter is avery much more comfortable fit.13 Building Act 2004, ss 316-317.14 Section 335(2).[22] Moreover, if applications under s 340 are considered first appeals then theycould potentially proceed to the Court of Appeal as a second appellate court and thenon to the Supreme Court.15 This would be an unexpected result as s 340 contemplatesan appeal to the High Court only. Normally, appeals from appellate decisions of theDistrict Court are finally determined by the High Court.16[23] By contrast, if the District Court is treated as the first appeal court, itsrelationship to the Board would be analogous to that between the District Court and acommunity magistrate, for the purpose of s 297. The only necessary modification toSubpart 8 would be to s 297, to the effect that the District Court is the court of firstappeal against a ruling of the Building Practitioners' Board. Were that the case, leavewould only be granted were it in the public interest or if there was the likelihood of amiscarriage of justice. Further, the High Court's decision would be final, and couldnot be appealed against.17[24] Overall, I consider this approach better fits the Building Act context. AlthoughI accept MBIE's submission that this is, in a literal sense, the first appeal against "anydetermination of law", a question of law on a first appeal is one that in terms of s 296of the Criminal Procedure Act is against a "ruling by the trial court", in the"determination of the charge", on "proceedings which relate to or follow thedetermination".18 For the reasons I have indicated, classification of the District Courtas "the trial court" is uncomfortable to the point of awkwardness.[25] MBIE further submits that a District Court appeal is not under Subpart 8. Thisis, of course, true. But the issue here is how best to adapt Subpart 8 to fit the BuildingAct context. In my view, categorisation as a second appeal requires fewermodifications and does less violence to the wording of s 296.[26] For these reasons, I consider that an appeal from the District Court under s 340of the Building Act is governed by ss 303–308 of the Criminal Procedure Act; i.e. the"further appeal" provisions of Subpart 8. In the result, the threshold that must be met15 Criminal Procedure Act 2011, s 309.16 Section 308.17 Section 308.18 Section 296(2).for leave to be granted is that the appeal raises a matter of general or public importance(or there is a possibility of a miscarriage of justice, which is not argued here).19[27] Although MBIE initially submitted on the basis that leave simplicter wasrequired, it relied on similar arguments whether that was the case or it was obliged toestablish a matter of general or public importance. It says that there is no decision ofthe senior courts on the interrelationship of ss 87 and 88; there is a conflict ofinterpretation between the Board (as a specialist Body) and the District Court; and thatthe appeal relates to an identified and specific error of law, and not one of fact.[28] It further says that it has been its longstanding view (supported by the Board)that the obligation under s 88 is an independent one that arises when a licensedbuilding practitioner ceases to work on restricted work. It says that the obligation toprovide a record of work is widely understood, that such record is important for thepurposes of the Building Act as it identifies restricted work done on a building, andthat were the decision of the District Court left to stand, it would undermine the effortsof the Ministry to combat non-compliance.[29] The leading decision on the general or public importance threshold is thedecision of the Court of Appeal in McAllister v R.20 It held that an important questionof law having broad application beyond the circumstances of the particular case willsatisfy the test.21 For the reasons advanced by MBIE I consider this thresholdestablished. I therefore grant leave to appeal. Self-evidently, I would have come tothe same conclusion had I considered this a first appeal, although slightly differentconsiderations could have applied.MBIE's submissions on the substantive appeal[30] MBIE submits that the District Court erred in finding that a licensed buildingpractitioner does not have to provide a record of work under s 88 until the buildingowner has fulfilled his or her obligations under s 87. It says that on a plain reading ofs 88 the obligations are not "triggered" by the fulfilment of the separate obligation in19 Section 303.20 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.21 At [36].s 87, and that the only precondition to the obligation is that the work be "completed".Further, it says this interpretation is more consistent with the statutory purpose of theprovisions, which it submits is to promote public safety, compliance andaccountability—there being demonstrable public benefit in provision of acomprehensive history of the work done to houses. It says the District Court'sapproach undermines these goals by creating a significant potential lacuna inperformance of the s 88 obligation.Relevant statutory provisions[31] The Building Act 2004 superseded the earlier Building Act 1991. It wasenacted against the background of the leaky building crisis, and addressed concernsover the activities of unqualified and inexperienced builders. It introduced a licensingregime for builders and created the Building Practitioners' Board to monitorcompliance on the part of builders with the statutory regime. It is an important pieceof legislation.22 It provides a regime that creates "licensed building practitioners".23Only licensed building practitioners are able to do, or supervise, "restricted buildingwork", which includes that done under a building consent.[32] Section 88 creates an obligation on licensed building practitioners to file withthe building owner and the territorial authority (usually a city or district council) a"record of work" (which states what restricted building work the licensed buildingpractitioner carried out or supervised), "on completion of the restricted buildingwork".24[33] Section 87 requires building owners to give notice of the name of everylicensed building practitioner who is engaged to carry out or supervise restrictedbuilding work on their property to the "building consent authority"—which is often,but not necessarily, the same body as the territorial authority.25 They must also givenotice if a licensed building practitioner ceases to work on restricted work after the22 I have gratefully borrowed much of this description from Judge Gibson's judgment in Bell v Lu[2017] NZDC 23847 at [5].23 Means a building practitioner whose name is, for the time being, entered in the register establishedand maintained under s 298(1).24 Building Act 2004, s 7.25 Section 212. Private organisations or persons may also be Building Consent Authorities.work has begun, or if another licensed building practitioner is engaged to do therestricted work.Discussion[34] The essence of this appeal is how s 88 is to be interpreted; and, in particular,whether the obligation in s 88 is dependent on discharge of the owner's obligationsunder s 87.[35] The meaning of an enactment is ascertained from its text and in light of itspurpose.26 The leading case on the interpretation of a statutory provision is CommerceCommission v Fonterra Co-Operative Group Ltd.27 It establishes the followingprinciples:(a) The statutory test must be considered in isolation of purpose todetermine its plain and ordinary meaning(s).(b) The meaning(s) of the test must then be cross-checked against thepurpose of the legislation.(c) In determining the purpose, regard must be had to both the immediateand general legislative context; it may also be relevant to consider thesocial, commercial or other objective of the legislation.[36] In R v Pora, the majority of a Full Bench of Court of Appeal accepted thatmaterials such as select committee reports and parliamentary debates may be relevantto the interpretative exercise.28[37] MBIE submits that, on a plain reading of the provision, the only preconditionto the obligation to file a record of work is the "completion" of the restricted work.The Ministry acknowledges that the word "completion" is ambiguous: it could referto the completion of the entirety of the restricted work—i.e. all of the work under a26 Interpretation Act 1999, s 5.27 Commerce Commission v Fonterra Co-Operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767.28 R v Pora [2001] 2 NZLR 37 (CA).building consent—or the point at which a licensed building practitioner ceases to workunder the building consent, either because he has completed his/her portion of thework or, for example, is removed from the project before doing so. Judge Gibsonadopted the latter interpretation, applying the decision of Judge Harrison in AliKumar.29 This finding is not challenged on appeal. In any event, I consider it correctfor the reasons identified by Judge Gibson.[38] His Honour went on to find, however, that fulfilment of the owner's obligationsunder s 87 was a precondition to the builder's obligations under s 88. MBIEchallenges that conclusion. It says the two obligations are entirely separate, evidencedby the fact that one is owed to the building consent authority and the other to theterritorial authority. It submits that there is no statutory requirement on the buildingconsent authority to notify the territorial authority. Further, it says that it is not aprecondition to the s 88 obligation that the territorial authority call for a record ofwork.[39] I agree with the MBIE that, on its plain meaning, "completion" is the onlyprerequisite to the accrual of the statutory obligation under s 88. In line with theFonterra framework, that meaning then needs to be cross-checked against the purposeof the legislation.[40] Section 3 of the Act lists such purposes:3 PurposesThis Act has the following purposes:(a) to provide for the regulation of building work, the establishment of alicensing regime for building practitioners, and the setting ofperformance standards for buildings to ensure that—(i) people who use buildings can do so safely and withoutendangering their health; and(ii) buildings have attributes that contribute appropriately to thehealth, physical independence, and well-being of the peoplewho use them; and(iii) people who use a building can escape from the building if itis on fire; and29 Ali v Kumar [2017] NZDC 23582.(iv) buildings are designed, constructed, and able to be used inways that promote sustainable development:(b) to promote the accountability of owners, designers, builders, andbuilding consent authorities who have responsibilities for ensuringthat building work complies with the building code.[41] Of these, the purpose of promoting the accountability of builders is clearly themost relevant to this appeal.[42] Section 4 is titled "Principles to be applied in performing functions or duties,or exercising powers, under this Act". Subsection (2)(q)(i) relevantly provides:(2) In achieving the purpose of this Act, a person to whom this sectionapplies must take into account the following principles that arerelevant to the performance of functions or duties imposed, or theexercise of powers conferred, on that person by this Act:(q) the need to ensure that owners, designers, builders, andbuilding consent authorities are each accountable fortheir role in ensuring that–(i) the necessary building consents and otherapprovals are obtained for proposed buildingwork;[43] While the Court is not a "person to whom this section applies", the sectionreinforces the importance the Act places on the accountability of those involved inbuilding work. In Tan v Auckland Council, Brewer J noted that ss 3 and 4 together:30 make it clear that the purpose of the [Building Act] is to ensure that buildingwork meets certain standards in order to achieve the goals of public health,safety and wellbeing, and sustainable development. The [Building Act] makesowners, designers, builders and authorities responsible for ensuring that thispurpose is met.[44] Brewer J also noted that the corresponding disciplinary regime;31 address the purposes of the [Building Act] by imposing liability forinadequate supervision and therefore helps ensure that the most importantparts of a building meet the relevant building standards.30 Tan v Auckland Council [2015] NZHC 3299 at [34].31 At [51].[45] Similar considerations apply by analogy to the imposition of liability for failingto provide a record of work.[46] Further support for the proposition that a purpose of the Act is to increaseprotection for consumers through higher regulatory compliance can be discerned fromthe parliamentary debates. In introducing the Building Bill, the Hon Lianne DalzielMP stated that the Bill was designed to minimise the risk of regulatory failure andaddress consumer protection.32[47] I accept, therefore, MBIE's submission that one of the central purposes of theAct was to increase regulation on building work so as to provide local authorities andpresent and future owners with assurance that the building work was completed torequired standards. As MBIE submits, if the s 88 obligation is conditional on adischarge of that under s 87, the result will be fewer records of work being filed. Thiswould not be consistent with the purpose of the Act. As Judge Gibson himselfrecognised, the record of work "is useful historical knowledge for owners both presentand future, and for other parties who may come to be involved in cases allegingdefective building practice".33 And it could indeed be even more important if theowner has not complied with their obligations under s 87. Further it serves asprotection for the innocent licenced building practitioner if a dispute arises over whodid what work on a site where sequential builders have been employed.[48] For these reasons, I consider the purposes of the legislation consistent with theplain meaning I have adopted.[49] I accept that the "territorial authority" (for the purposes of s 88) will, inpractice, often also be the "building consent authority" (for the purposes of s 87). Andnotification by the owner to such combined body would put it on notice that a licencedbuilding practitioner ought to file a record of work. However, under the legislation,the two entities are separate and the position I have described will not always be thecase. Further, as the MBIE submits, there is no mechanism in the legislation for onebody to notify the other of the relevant filing and the ability of the licenced building32 (4 September 2003) NZPD 8425.33 Bell v Lu [2017] NZDC 23847 at [26].practitioner to file a record of work is not in any way prejudiced by failure of the ownerto fulfil his/her obligation under s 87. This is of course simply another way of sayingthe two obligations are independent.[50] For the foregoing reasons, I respectfully disagree with the conclusions of theDistrict Court in Ali v Kumar and in the decision under appeal insofar as they engagethe issued I have discussed.34 In my view the only relevant precondition to theobligations of a licenced building practitioner under s 88 is that he/she has completedtheir work.Result[51] For the foregoing reasons, I allow the appeal.Consequential orders[52] Sections 300 and 307 of the CPA set out the powers available to the Court ifan appeal is allowed. These too must be adapted as required for the Building Actcontext. Relevantly, the Court must determine the appeal by:35(a) confirming the ruling appealed against; or(c) varying or substituting the sentence or remitting the sentence to thesentencing court with directions, if the decision relates to sentence andthe court thinks the decision is erroneous; or(d) remitting the matter to the trial court in accordance with the opinionof the appeal court; or(e) making any other order that the court considers justice requires.[53] As indicated, one of the issues raised on appeal to the District Court was notdetermined—namely whether the work fell within Schedule 1 to the Building Act,(which defines building work for which a building consent is not required). If it did,then Judge Gibson held that a record of work was itself not required.36 Had it been34 Ali v Kumar [2017] NZDC 23582.35 Criminal Procedure Act 2011 ss 300(1)(a), (c)–(e).36 Bell v Lu [2017] NZDC 23847 at [31]–[32].necessary he would have remitted that matter to the Board. The question is whether Ishould do likewise.[54] Given the fact that Mr Bell was exonerated of negligence, the very smallpenalty imposed by the Board for the breach of s 88 and the extent to which he hassince been caught up in something of an arcane legal debate, I have givenconsideration to whether I should exercise my reserve powers under s 300(e) to "makeany other order that the Court considers justice requires", by staying the proceedingsand remitting the penalty.[55] Regrettably, I do not consider relevant Court of Appeal authority would supportsuch a course. Although the power in s 300(e) does include a power to stay and hasbeen invoked in circumstances where the relevant sentence has already been servedand there would accordingly be no useful purpose in a retrial,37 the Court of Appealhas on another occasion noted that a stay will only be appropriate in "rare andexceptional circumstances".38 These are not such circumstances. Rather the highest Ican put it is that Mr Bell has had to endure the significant inconvenience of a protracteddispute and appeal process, at least part of which is not of his making.[56] Somewhat reluctantly, therefore, I remit the issue, identified in [53] above, tothe Building Practitioners' Board.Costs[57] Responsibly, MBIE does not seek costs on the appeal. No order is thereforemade.__________________________Muir J37 R v Yorsten [2008] NZCA 285. This was a case under s 233, which is the equivalent to s 300 forappeals on conviction. Both provisions contain a power to make any order that justice requires.38 R v Vaihu [2010] NZCA 145 at [55].