(17 December 2024)

Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions You are here:   NZLII >> Databases >> High Court of New Zealand Decisions >> 2024 >> [2024] NZHC 3875 Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help Cosmo Holdings Limited v Clark [2024] NZHC 3875 (17 December 2024) Last Updated: 15 January 2025 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE CIV-2024-485-000606 [2024] NZHC 3875 UNDER s 119 of the Residential Tenancies Act 1986, and r 2.5, r 2.11(1) and (5), r 7.19(4), r 7.23 of the High Court Rules and s 34 of the Senior Courts Act 2016 IN THE MATTER OF Appeal against Tenancy Tribunal Decisions dated 9 March 2023 (interim) and dated 6 October 2023 (final) BETWEEN COSMO HOLDINGS LIMITED Applicant AND SAMUEL THOMAS CLARK AND GISELA BEUKES Respondents Hearing: (On the papers) Counsel: S Dai as Director of Cosmo Holdings Ltd Judgment: 17 December 2024 JUDGMENT OF BOLDT J [Application to recall 4 October 2024 judgment, application for leave to appeal] [1] The appellant, which wishes to bring a second appeal against a decision of the Tenancy Tribunal, is a company. Ms Dai is the company’s director. She is not a lawyer. [2] Nonetheless, Ms Dai wishes to appear on the company’s behalf in this Court. The Registrar declined to accept the company’s notice of appeal for filing, COSMO HOLDINGS LIMITED v CLARK AND BEUKES [2024] NZHC 3875 [17 December 2024] and on 4 October 2024 I dismissed Ms Dai’s application to review the Registrar’s decision. 1 [3] The Registrar declined to accept the applicant’s notice of appeal because it was signed in person by Ms Dai, rather than by a lawyer acting for the company. The Registrar noted that a corporate litigant must be represented by counsel, and that a litigant in person, regardless of their role in the company, is not entitled to represent a company in the High Court. [4] In dismissing Ms Dai’s application for review, I noted that McHerron J had recently considered and determined a near-identical application by Ms Dai in other proceedings. In a review judgment dated 3 May 2024, 2 and in a decision dated 1 October 2024 declining Ms Dai’s application for leave to appeal, 3 McHerron J concluded Ms Dai had not advanced any ground which might make it appropriate to depart from the normal rule that a corporate litigant must be represent by counsel. I adopted McHerron J’s analysis and reached the same conclusion. [5] In rejecting Ms Dai’s submission that she is well qualified to represent the company in this Court, McHerron J noted the prolix and unfocused nature of the documents she had filed and the procedural errors which had characterised her interactions with the Court to date. While the Court may in exceptional circumstances permit a layperson to appear on behalf of a company, 4 McHerron J concluded Ms Dai had not demonstrated that her case is one which falls within that narrow exception. [6] Ms Dai has brought two applications arising from my decision. First, she (informally) asked me to recall my judgment because McHerron J’s decisions have been, or will be, challenged. Ms Dai observes that McHerron J’s review decision “is currently in the appeal process and shall not be the legal basis to be relied upon”, while his leave decision “is currently in the process of investigation, and it is unlikely to be valid”. Second, she applies for leave to appeal to the Court of Appeal. 1 Cosmo Holdings Ltd v Clark and Beukes [2024] NZHC 2895. 2 Cosmo Holdings Ltd v Van Dyk [2024] NZHC 1071. 3 YYD Group v Van Dyk [2024] NZHC 2838. 4 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA). Discussion [7] It remains unclear why Ms Dai is so determined to represent her companies in this Court. All the material she has filed, including her current applications, indicate she is unfamiliar with the Court’s processes. If Ms Dai’s company has a good case, she will give it the best possible chance of success by engaging counsel. [8] Lay litigants have no “right” to represent a company in Court. The exception Ms Dai relies on is just that. Applications to depart from the normal rule are determined by the Court in its discretion. [9] Indeed, the present case is particularly ill-suited to lay representation. Second appeals under the Residential Tenancies Act 1986 may only be brought on a question of law. 5 Familiarity with the law, and an ability to isolate and articulate an error of law, is essential. [10] My 4 October decision was an interlocutory ruling. 6 Section 56(3) of the Senior Courts Act 2016 provides that no appeal lies from any interlocutory order or decision in the absence of leave. The principles governing leave applications are well settled: 7 (a) a high threshold exists; (b) the applicant must identify an arguable error of law or fact; (c) the identified error should be of general or public importance warranting determination, or should otherwise be sufficiently important to the applicant to outweigh its lack of general importance; (d) the significance or implications of the error, whether for the particular case, for the applicant or as a matter of precedent must warrant incurring further delay; and 5 Residential Tenancies Act 1986, s 119(1). 6 See the definition of “interlocutory application”: Senior Courts Act 2016, s 4. Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] ; and Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17] . (e) the ultimate question is whether the interests of justice are served by granting leave. [11] Ms Dai has suggested two questions, one of which appears to go to the question of leave, the other to the substantive appeal. The first, “whether the legal basis met the criteria of an exception to the general Mannix Rule”, is not a question of general or public importance. Rather, Ms Dai seeks to challenge a discretionary decision applying settled law to the facts of this case. [12] The second question — “whether the Court is obliged to review the legal errors (occurred at the Tenancy Tribunal), as Questions of Law ... from a technicality perspective ” 8 — appears to capture the question of law Ms Dai’s company wishes to advance in its substantive appeal against the Tenancy Tribunal’s decision. The question is difficult to follow, and takes the Court no closer to identifying errors of law in either the Tribunal or the District Court. The fact Ms Dai wishes to advance that question highlights the need for her to retain counsel if her companies wish to challenge the Tribunal’s decisions further. [13] Ms Dai has not suggested any exceptional circumstances, or a fundamental error of law or procedure, which might justify the very rare step of recalling a final judgment. 9 The fact I followed McHerron J’s very recent decision, which is now itself under appeal, does not alter that analysis. [14] Similarly, Ms Dai has not identified an arguable error of fact or law in my decision, much less a question of general or public importance which might warrant a grant of leave to appeal. My decision does not deprive her company of the right to mount a further challenge to the Tribunal’s decision, but it must, like every other company that wishes to pursue proceedings in this Court, engage a lawyer to do so. Result [15] Ms Dai’s application for recall of my 4 October 2024 decision is declined. 8 Emphasis in original. Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 approved in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122 , [2010] 1 NZLR 76 at [2] . [16] Ms Dai’s application for leave to appeal is declined. Boldt J NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.nzlii.org/nz/cases/NZHC/2024/3875.html