Yang v Ichinen Autos (NZ) Limited [2023] NZHC 2487 (5 September 2023)

Last Updated: 11 October 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1353 [2023] NZHC 2487

BETWEEN	ZHANPING YANG Appellant
AND	ICHINEN AUTOS (NZ) LIMITED Respondent

Hearing:	8 August 2023
Appearances: Further submissions completed:	Appellant in Person (Assisted by Interpreter) D Bullock for the Respondent 29 August 2023
Judgment:	5 September 2023

JUDGMENT OF POWELL J

[Jurisdiction for Appeal]

This judgment was delivered by me on 05 September 2023 at 4.30 pm pursuant to r 11.5 of the High Court Rules

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Registrar/Deputy Registrar

ZHANPING YANG v ICHINEN AUTOS (NZ) LIMITED [2023] NZHC 2487 [5 September 2023]

• [1] Mr Yang seeks to appeal in this Court a decision of the District Court that resulted in his appeal against a decision of the Motor Vehicle Disputes Tribunal being struck out.¹

• [2] Mr Bullock, on behalf of the respondent has submitted that there is no jurisdiction for Mr Yang to bring a second appeal to the High Court.

• [3] At the first call of the appeal there was difficulty in trying to discuss the issue of jurisdiction given Mr Yang’s language difficulties even with the assistance of an interpreter. Given this position, I set a timetable to enable Mr Yang to further consider the issues raised by the respondent, including giving him the opportunity to seek legal advice, and file further submissions, following which I confirmed I would determine the jurisdiction issue on the papers.

• [4] Both parties have filed additional submissions and my determination of the jurisdiction issue now follows.

Appeals of decisions of the Motor Vehicle Disputes Tribunal

• [5] As Mr Bullock pointed out the right to appeal a decision of the Motor Vehicle Disputes Tribunal (“Disputes Tribunal”) is restricted. Clause 16 of sch 1 of the Motor Vehicle Sales Act 2003 (“the Act”) provides:

16 Appeals from decision of Disputes Tribunal

(1) Any party who is dissatisfied with a decision given by a Disputes Tribunal may, within 10 working days after notice of the decision is given to that party, appeal to a District Court Judge.

(2) If the amount of the claim exceeds $12,500, the appeal may be brought on either of the following grounds:

(a) that the Disputes Tribunal’s decision was wrong in fact or law, or in both fact and law; or

1. Yang v Ichinen Autos (NZ) Ltd CIV-2022-004-002081, 16 March 2023 (Minute of Judge AA Sinclair). This was a procedural direction that if no steps were taken by Mr Yang to file and serve an application to extend time for service of his appeal (together with any supporting affidavit). By 31 March 2023 the appeal would be struck out. No steps were taken and therefore Mr Yang’s appeal to the District Court was struck out from 31 March 2023: Yang v Ichinen Autos (NZ) Ltd CIV-2022-004-002081, 1 May 2023.

(b) that the proceedings were conducted by the Disputes Tribunal in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings.

(3) If the amount of the claim does not exceed $12,500, the appeal may be brought on the ground that the proceedings were conducted by the Disputes Tribunal in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings.

(4) For the purposes of this section, the Disputes Tribunal is taken to have conducted the proceedings in a manner that was unfair to the appellant and prejudicially affected the result if—

(a) the Disputes Tribunal fails to have regard to any provision of any enactment that is brought to the attention of the Disputes Tribunal at the hearing; and

(b) as a result of that failure, the result of the proceedings is unfair to the appellant.

(5) The District Court’s decision given under this clause is final.

(6) To avoid doubt, nothing in this clause affects the right of any person to apply, in accordance with law, for judicial review.

• [6] As can be seen not only does cl 16 provide only a limited right of appeal to the District Court, with the decision of the District Court being final, but also no further right of appeal is provided for.

• [7] No other legislation provides any right of appeal. While a general right of appeal from the District Court to the High Court is contained in s 124 of the District Court Act 2016, this does not apply if another Act:

(a) expressly confers a right of appeal; or

(b) expressly provides that there is no right of appeal.

• [8] Clause 16(5) of sch 1 to the Act falls into the latter category. By confirming that decisions of the District Court are final, cl 16(5) is expressly providing that there is no further right of appeal. As Mr Bullock pointed out, previous decisions of this Court are consistent with a lack of jurisdiction for further appeals. In Joden Finance Ltd v Dorairaj,² Joden purported to appeal to the High Court a costs decision of the District Court made in an appeal to that Court from a decision of the Disputes Tribunal. After cl 16 of sch 1 was raised by the respondent, Joden discontinued its appeal.

² Joden Finance Ltd v Dorairaj [2012] NZHC 1228.

Determining costs on the abandoned appeal Wylie J held that, given cl 16(5) of sch 1, the appeal lacked merit and increased costs were warranted, uplifting costs from scale by 50 per cent.³ In Joden Finance Ltd v Auckland District Court Katz J likewise confirmed that the effect of cl 16 of sch 1 is that there is “no further right of appeal” against a decision of the District Court.⁴

• [9] Mr Yang made no submissions in answer to these points. The focus of his submissions was on the injustice he feels with regard to the process in both the Disputes Tribunal and in the District Court and on his arguments on the merits of his dispute with the respondent. None of those matters are in any way relevant to the question of jurisdiction. Mr Yang did note cl 16(6) which preserves the right to apply for judicial review but this too has no application given that he has clearly attempted to file an appeal against the decisions of the Disputes Tribunal and District Court. Given that position, I agree with Mr Bullock that cl 16(5) makes clear there is no jurisdiction to entertain an appeal of Judge Sinclair’s decision in the High Court. As a result, Mr Yang’s appeal must be dismissed for want of jurisdiction.

Decision

• [10] The appeal is dismissed for want of jurisdiction.

• [11] As the respondent has succeeded in striking out the appeal I agree that costs on the strike out are appropriate. The respondent sought costs on an indemnity basis as a result of Mr Yang failing to engage with the jurisdiction issue despite being given the opportunity to seek legal advice and nonetheless persisting with the merits of the appeal. Having concluded the issue I agree that increased costs are warranted but that indemnity costs go too far; given Mr Yang’s language issues and taking into account he is self-represented on what is a technical legal issue. As is the result I conclude that costs on a 2B basis uplifted by 25 per cent are appropriate. Mr Bullock will have until 12 September 2023 to file a calculation of the amounts claimed and Mr Yang will then have until 19 September 2023 to advise any issue with the calculation. Both

³ At [30].

⁴ Joden Finance Ltd v Auckland District Court [2020] NZHC 823 at [3].

memoranda are limited to three pages in length. I will then determine the issue on the papers.

Powell J