DORBU V DISTRICT COURT AUCKLAND (TENANCY TRIBUNAL DIVISION) AND ANOR HC AK CIV 2008-404-7398 [2009] NZHC 356 (25 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                CIV 2008-404-7398



                BETWEEN                   JOHN EVANS DORBU
                                          Plaintiff

             
  AND                       DISTRICT COURT AUCKLAND
                                          (TENANCY TRIBUNAL DIVISION)
      
                                   First Defendant

                AND                       VIKASHNI SHIROMAN, VINCE
         
                                EVERITT, ANTON N FERNANDO,
                                          BENJAMIN CRISAN, ANTHONY
  
                                       LAIKA, TECLA MASHURE, JAN
                                          GRANT AND GILLIAN KING
                                          Second Defendants


Hearing:        25 March 2009

Appearances: No appearance by or on
behalf of Plaintiff
             No appearance by or on behalf of First Defendant
             S R Anderson for Second Defendants

Judgment:       25 March 2009


                               JUDGMENT OF KEANE J




Solicitors:

T M Saseve, Auckland
Crown Law
Office, Wellington (J Oliver)
S R Anderson, Auckland


DORBU V DISTRICT COURT AUCKLAND (TENANCY TRIBUNAL DIVISION) AND ANOR HC AK
CIV
2008-404-7398 25 March 2009

[1]      John Dorbu owns an eight room dormitory at level 7/126 Vincent Street,
Auckland. He is
embroiled in a dispute with the Body Corporate and with his
tenants, who have now vacated.


[2]      The issue with the Body Corporate
has been the subject of a proceeding in
this Court, CIV 2008-404-5222 Dorbu v Cooke, Hegman and Crockers Strata
Management Limited.
Its present state is unknown to me. His dispute with his
tenants resulted in proceedings before the Residential Tenancy Tribunal,
which has
made two decisions adverse to Mr Dorbu, which he challenges, and more recently a
third.


[3]      On this application
for review Mr Dorbu seeks to have quashed the two initial
decisions of the Tribunal, those dated 8 August and 10 October 2008. He
has also
sought interim relief under s 8 of the Judicature Act, and that is the subject of the
fixture today. One order he seeks
is that his tenants vacate. The second is that they
pay any rent accrued until 8 August 2008 and any owing since.


[4]      On 17
November 2008 John Hansen J directed that this interim application be
set down for a half day fixture at the earliest possible date.
On 19 November 2008
the Registrar sent a notice of date of hearing to the parties, to Mr Dorbu himself and
to the solicitor whom
he had instructed, Tua Saseve. That fixture was for today at
11.45 am. Mr Anderson appears for the second defendants. There is no
need for any
on behalf of the Tribunal. I have a letter from Crown Counsel, dated 3 December
2008, confirming that it abides the
decision of the Court. The difficulty with which I
am confronted is that Mr Dorbu, who represents himself, has not appeared.


[5]
     The Registrar has attempted to contact Mr Dorbu and been told that he is in
the United Kingdom and had no notice of the fixture
today. On any view that cannot
be entirely accurate. Mr Anderson attempted to speak to him two days ago. He was
told by the person
to whom he spoke that, if Mr Dorbu was not going to appear,
somebody else would. Unfortunately nobody else has.


[6]      Mr Anderson
seeks to have the application dismissed. And, though it is
conceivable, I put it no higher, that the Registrar's letter never reached
either Mr

Dorbu or his solicitor, I see a need to bring finality to this present phase of the case.
The orders Mr Dorbu seeks cannot
be given under s 8 and the purpose of the first has
already been effected. His tenants have vacated. All that he has left is a claim
for any
rent outstanding. That is not a claim which can be brought on an application for
review, let alone be the subject of any
interim order.


[7]    Section 8 of the Judicature Amendment Act 1972 enables this Court, before
the final determination of an application for review, to make interim orders to
preserve the applicant's
position. Those in s 8(1) lie in three categories and they are
exhaustive. The first two are prohibitory in character. The third
is declaratory. There
is no warrant given for any form of mandatory order, like an order to vacate. Nor is
there any warrant to give
a judgment in debt.


[8]    This application, I consider, is and has always been self evidently futile and I
dismiss it for want
of jurisdiction. The Tribunal abides the decision of this Court and
may have incurred no costs. The second defendants may well have.
They will have
costs at scale 2B and any disbursements as fixed by the Registrar.


[9]    This decision does not touch the application
for review itself, which Mr
Dorbu has still to prosecute. Whether he will choose to do so is another thing. Now
that the tenants
have vacated, it may well be that he will find little point in seeking to
quash the decisions of the Tribunal. That is for him. The
action in debt is for some
other forum.



                                                               _____________
        
                                                      P.J. Keane J