Sax v McMurtrie

[2025] NZHC 331

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV 2024-470-0092

[2025] NZHC 331

UNDER

Section 124 District Court Act 2016; Disputes Tribunal Act 1988

BETWEEN

JANINE SAX

Appellant

AND

ANDREW MCMURTRIE

Respondent

Hearing:

19 February 2025

Appearances:

The appellant in person

No appearance for the respondent

Judgment:

27 February 2025

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on 27 February 2025 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

SAX v MCMURTRIE [2025] NZHC 331 [27 February 2025]

[1]                 Ms Sax appeals against two decisions of Judge W Lawson in the District Court at Tauranga made on 7 May and 31 May 2024.1 The first was a decision to strike out her appeal against a decision of the Disputes Tribunal dated 16 May 2022 when she failed to appear at a call on 7 May 2024. The second was a decision to decline her application to “rescind” the 7 May 2024 decision.

[2]                 Mr McMurtrie took no part in the District Court proceeding and similarly took no part in this appeal.

Claim in the Disputes Tribunal

[3]                 Ms Sax breeds and sells rabbits.   Her rabbits are supplied in trade as pets.    In January 2020  Ms Sax contracted  Mr McMurtrie, trading  as Nailed  It Fencing,  to construct an enclosure for her rabbits.

[4]                 Ms Sax was unhappy with the performance of the enclosure. She filed a claim in the Disputes Tribunal on 7 January 2022 seeking a full refund of $7,268 she paid Mr McMurtrie for the enclosure.

[5]                 The issues in the case were whether Mr McMurtrie completed the contract, whether Ms Sax had a claim for misrepresentation under s 35 of the Contract and Commercial Law Act 2017, whether Mr McMurtrie breached ss 9 and  13 of the  Fair Trading Act 1986, and whether there was a breach of  the  Consumer Guarantees Act 1993.

[6]                 The  Tribunal  found  in  favour  of  Mr   McMurtrie.   It   concluded  that   Mr McMurtrie had completed the contract, there was no misrepresentation or breach of the Fair Trading Act, and the Consumer Guarantees Act did not apply to the contract.

Appeal to the District Court

[7]Ms Sax filed an appeal to the District Court on 14 June 2022.

1. Sax v McMurtrie DC Tauranga CIV-2022-070-985, 10 May 2024 (Minute of Judge Lawson);

Sax v McMurtrie DC Tauranga CIV-2022-070-985, 31 May 2024 (Minute of Judge Lawson).

[8]                 Due to medical issues faced by Ms Sax, the appeal did not progress for roughly two years. Ms Sax repeatedly provided medical certificates to the Court stating that she was not able to participate in legal proceedings. This resulted in the proceeding being adjourned on multiple occasions.

[9]                 When the appeal was called on 7 May 2024, Ms Sax did not appear. Nor did she, prior to the call, provide a further medical certificate and seek a further adjournment. As a result, the Judge minuted the file “No appearance of Appellant. Appeal Struck out.”

[10]              Ms Sax then applied to “rescind” the decision striking out her appeal. She applied by an  application  made  on  24  May  2024.  In  response,  the  Judge,  on 31 May 2024 and recorded in a letter from a Deputy Registrar dated 5 June 2024, minuted the file:

There was no  application  for  an  adjournment  filed  on  or  prior  to  the  7th May 2024 when the matter was struck out.

The appeal was originally filed on 26 January 2023.

The appeal has not been pursued and the matter was correctly struck out because of the lack of pursuit of the appeal.

No second right of appeal

[11]              There is a short answer to Ms Sax’s appeal. There is no second right of appeal in relation to decisions of the Tribunal. A decision of the Tribunal can only be appealed once, to the District Court. There is no right of appeal beyond the District Court, to the High Court or any other court.2

[12]For this reason, I must dismiss Ms Sax’s appeal to this Court.

[13]              I expect it will be no consolation to Ms Sax but my impression is that, in any event, her appeal to the District Court had a low prospect of success. It  is difficult  to appeal a decision of the Tribunal because the permitted grounds of appeal are very limited. To succeed with her appeal, Ms Sax needed to show that the proceedings

2      Seymour v Spark New Zealand Trading Ltd [2023] NZHC 3193 at [4]–[9].

were conducted in a manner that was unfair to her and prejudicially affected the result.3 Having reviewed  Ms Sax’s  notice of appeal and  discussed her proposed  grounds  of appeal with her, my impression is that, had her appeal not been struck out before  it reached a hearing, it is most unlikely it would have succeeded.

Result

[14]The appeal is dismissed.

Blanchard J

3      Disputes Tribunal Act, s 50.