LAWES v HSIEH [2018] NZCA 544

LAWES v HSIEH [2018] NZCA 544 [3 December 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA N/A[2018] NZCA 544BETWEEN SPENCER LAWESApplicantAND MEI-LAN HSIEHRespondentJudgment:(On the papers)3 December 2018 at 9.30 amJUDGMENT OF GILBERT JThe application for review of the Registrar's decision is declined.____________________________________________________________________REASONS[1] Mr Lawes occupies a residential property at Whenuapai, Auckland owned bythe respondent. The respondent claims that Mr Lawes occupied the property under adeed of lease dated 6 April 2009 which provided for a two-year term expiring on7 April 2011. The respondent claims that Mr Lawes continued to occupy the propertyfollowing expiry of the lease but did not pay any rent in 2015, 2016 or 2017.The respondent gave notice in November 2016 terminating the lease. She then soughtan order from the High Court for possession of the property.[2] On 7 February 2018, Downs J made an order cancelling the lease and orderedthat the respondent was entitled to possession of the property (the possession order).[3] Mr Lawes then applied to the High Court for a stay of the possession order.That application was declined by Downs J on 8 May 2018 (the stay decision).[4] On 31 May 2018, Mr Lawes attempted to file in this Court an application for astay of the possession order and a separate application for a stay of the stay decision.Mr Lawes contends that there is an error in the possession order because it refers to alease dated 6 May 2009 whereas the correct date is 6 April 2009. Mr Lawes says thereis no lease dated 6 May 2009 and no order can be made on a non-existent document.Mr Lawes also argues that the 6 April 2009 lease was superseded by a lease signed"around June 2010/11" although he has not produced a copy of any such lease andthe respondent denies that it exists.[5] The Registrar declined to accept these documents for filing. This was onthe basis that Mr Lawes was seeking to appeal against the stay decision.Because the stay decision was made on an interlocutory application, leave to appealagainst it must first be sought from the High Court under s 56(3) of the Senior CourtsAct 2016. Only if leave is declined by the High Court, can leave to appeal be soughtfrom this Court under s 56(5) of the Act. Mr Lawes also used an incorrect form.The Registrar advised Mr Lawes of these matters in a letter dated 31 May 2018,the date Mr Lawes' documents were received.[6] This advice prompted Mr Lawes to re-send the documents using the correctform but otherwise ignoring the Registrar's advice that leave to appeal against an ordermade by the High Court on an interlocutory application must first be sought fromthe High Court. These documents were received by the Court on 19 June 2018 butreturned to Mr Lawes on 25 June 2018 for the reasons previously advised.[7] Mr Lawes has now attempted to file in this Court a notice of application forleave to appeal against the stay decision. As this is the third time Mr Lawes hasattempted to apply to this Court for leave to appeal against the stay decision,the Registrar has referred the matter to me and invited me to deal with it as anapplication to review the Registrar's decision.[8] The present application for leave to appeal is specifically directed tothe decision of Downs J made on 8 May 2018, namely the stay decision. Mr Laweshas not sought to file a notice of appeal against the possession order and the time forappeal against that decision has expired. The stay decision against which Mr Lawesnow seeks leave to appeal was made on an interlocutory application. Section 56(3) ofthe Senior Courts Act states:56 Jurisdiction(3) No appeal, except an appeal under subsection (4), lies from any orderor decision of the High Court made on an interlocutory application inrespect of any civil proceeding unless leave to appeal to the Court ofAppeal is given by the High Court on application made within20 working days after the date of that order or decision nor within anyfurther rime that the High Court may allow.[9] Accordingly, Mr Lawes cannot seek leave to appeal against the stay decisionwithout first seeking leave from the High Court. This Court has no jurisdiction togrant leave until that step has been taken as is clear from s 56(5):(5) If the High Court refuses leave to appeal under subsection (3),the Court of Appeal may grant that leave on application made tothe Court of Appeal within 20 working days after the date ofthe refusal of leave by the High Court.[10] In these circumstances, the Registrar was correct to decline to accept thepresent application for filing. I direct that the documents be returned to Mr Lawes.________________________M A Gilbert J