Kumandan v Real Estate Agents Authority [2014] NZCA 227 (5 June 2014)

Last Updated: 10 June 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA508/2013 [2014] NZCA 227
BETWEEN	DELAWER HOOSAIN KUMANDAN Appellant
AND	REAL ESTATE AGENTS AUTHORITY Respondent

Court:	Randerson, White and French JJ
Counsel:	Appellant in Person J MacGibbon for Respondent
Judgment: (On the papers)	5 June 2014 at 2:30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 is dismissed.
2. The appeal is deemed to be abandoned.

100. The appellant must pay costs to the respondent as for a standard application on a Band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] On 17 April 2013 the Real Estate Agents Disciplinary Tribunal suspended the appellant’s licence for a period of 12 months from that date.^[1] The appellant then appealed to the High Court but his appeal was dismissed by Woolford J on 28 June 2013.^[2]
[2] The appellant filed an appeal against the High Court’s decision on 26 July 2013. Any appeal to this Court is confined to errors of law.^[3]
[3] By letter of 31 July 2013 the appellant was advised of the requirements of r 43 of the Court of Appeal (Civil) Rules 2005 in relation to the filing of a case on appeal and applying for a hearing date. He was also advised on the same date that security for costs had been fixed by the Registrar in the sum of $5,880.
[4] It is unnecessary to detail the communications between the Registry and the appellant thereafter. It is sufficient to state that the appellant was informed that the appeal was deemed to be abandoned as at 29 October 2013. However, due to an error made by the Registry the appellant was wrongly informed about the date by which he must file any application for an extension of time under r 43(2). Accordingly, Randerson J directed by minute of 25 February 2014 that the date by which the appellant’s application for an extension of time must be filed be extended until the date it was actually filed, that is on 21 February 2014.
[5] Submissions have now been received by both parties who are agreed that the application for an extension of time may be dealt with on the papers.

Submissions by the appellant

[6] The appellant essentially submits that he is unable to pay the amount required for security for costs and seeks an extension of 90 days to enable that sum to be paid; he is not responsible for the delay up and until his application for an extension of time was filed; there are important questions of law which ought to be determined on appeal not only for his own benefit but also for the benefit of others involved in the real estate industry; and he wishes to pursue his appeal as soon as he is in a financial position to do so. In that respect, he says the suspension of his licence has made it difficult to raise the necessary funds.

Discussion

[7] The principles upon which applications for an extension of time under r 43 are well established.^[4] Rule 43 requires an appellant to proceed expeditiously or forfeit the right to pursue the appeal. The length of the delay and any explanations for it are relevant. The Court will not generally extend time if the appeal lacks merit.
[8] In this case, we are not prepared to grant an extension of time for these reasons:

(a) Although we put to one side the delay until 21 February 2014, the case on appeal which the appellant has lodged with the court does not comply with the rules and the appellant has still not sought a date of hearing.

(b) Despite the lapse of over three months since this application for an extension of time was filed, the appellant has still not paid the security for costs. In that respect, we note that the suspension of his licence would have expired on 17 April 2014. The appeal is therefore susceptible to strike out under r 37.

(c) The appellant has not identified any question of law upon which his appeal must be founded. The judgment of the High Court was essentially factual in nature involving a review of the Tribunal’s assessment of the matters prescribed by s 99(1)(b) of the Real Estate Agents Act 1976, namely an inquiry into the appellant’s character and whether his licence ought to be cancelled or suspended in the public interest. That was an essentially discretionary exercise involving the application of well established principles.^[5]

Result

[9] The application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 is dismissed.
[10] The appeal is deemed to be abandoned.
[11] The appellant must pay costs to the respondent as for a standard application on a Band A basis with usual disbursements.

Solicitors:
Meredith Connell, Auckland for Respondent

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^[1] Real Estate Agents Authority v Kumandan [2012] NZ READT 32.

^[2] Kumandan v Real Estate Agents Authority [2013] NZHC 1528.

^[3] Section 120 of the Real Estate Agents Act 2008.

^[4] See Reid v Cottle [2014] NZCA 154 at [15], citing Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29 (CA) at 30.

^[5] Sime v Real Estate Institute of New Zealand (Incorporated) HC Auckland M 73/86, 19 August 1986.