Civil and criminal proceedings arise from tenancy termination and rental arrears payment order
The Court of Appeal declined to hear a residential tenant’s application seeking permission to bring a second appeal upon finding that it lacked jurisdiction under s. 303 of the Criminal Procedure Act 2011 to do so.
In Chen v Sun, [2025] NZCA 139, the applicant was a tenant of the respondents. The Tenancy Tribunal heard the parties’ dispute, terminated the tenancy, and ordered the applicant to pay rental arrears.
The tribunal deducted a sum from the amount owed to refund overpaid electricity charges. On a civil appeal, the applicant challenged the finding regarding the refund. He alleged that the respondents were dishonest or fraudulent in their evidence about the electricity charges.
In October 2023, the District Court dismissed the applicant’s appeal and refused to find fraud on the respondents’ part. The court accepted the respondents’ explanation that there were two versions of the electricity charges due to incomplete records.
The applicant proposed a private prosecution against the respondents in parallel with his civil appeal. He claimed they conspired to defeat justice, fabricated evidence, gave false oaths, and were deliberately dishonest, which led to the discrepancy in the evidence on the electricity charges.
In December 2023, another District Court judge issued a direction refusing to accept the applicant’s charging documents for filing under s. 26(3) of the Criminal Procedure Act upon finding that they effectively amounted to a relitigation of the civil appeal.
The judge also dismissed the charges under s. 147 of the Criminal Procedure Act upon determining that the charges abused the court’s process and had a weak evidential foundation. The applicant appealed this decision.
The High Court set aside the second judge’s direction under s. 26(3) upon holding that the District Court had already accepted the applicant’s charging documents for filing. However, the High Court dismissed the applicant’s appeal of the s. 147 decision based on a lack of jurisdiction.
The High Court explained that the applicant failed to identify a legal issue, challenged a factual finding instead, and abused the process by collaterally attacking the tribunal’s decision and the District Court’s judgment on the civil appeal.
The applicant applied for leave to bring a second appeal under s. 303 of the Criminal Procedure Act. He also applied for leave to bring an untimely application as he had filed his application around three weeks late.
The Court of Appeal ruled it lacked jurisdiction under s .303 to hear the application. The appeal court held that the applicant could not seek leave when the High Court did not determine the first appeal. The appeal court explained that the High Court’s refusal to grant leave did not amount to a determination of the first appeal.
The appeal court then considered whether it could have granted leave if it had jurisdiction. First, regarding the application for leave to bring an untimely application, the appeal court accepted that the applicant’s delay was modest and not prejudicial to the respondents, even though his explanation for the delay was unpersuasive.
Second, regarding the application for leave to bring a second appeal under s. 303, the appeal court decided that the applicant failed to identify a matter of general or public importance in the proposed appeal or a risk of a miscarriage of justice.
The appeal court noted that the tribunal and the District Court on the civil appeal clearly found that the discrepancies in the evidence on the electricity charges had an explanation and did not arise from dishonesty.
The appeal court concluded that the applicant’s proposed private prosecution collaterally attacked the tribunal’s decision and the District Court’s judgment on the civil appeal and thus abused the process.
