Anderson v FM Custodians Limited

[2014] NZHC 382

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-001985 [2014] NZHC 382

UNDER  Section 119 of the Residential Tenancies

Act 1986

IN THE MATTER OF       an appeal from the decision of the

District Court on 9 April 2013 in CIV-
2012-092-0214

BETWEEN  IAN ANDERSON and NORMA ANDERSON Appellants

ANDFM CUSTODIANS LIMITED First Respondent

ANDGHUZNEE HOLDINGS LIMITED Second Respondent

Hearing:                   7 February 2014

Counsel:                  D R Bigio for the Appellants

H P Holland for the Respondents

Judgment:                6 March 2014

JUDGMENT OF DUFFY J

[Re Application for Leave to Appeal]

This judgment was delivered by Justice Duffy on 6 March 2014 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     D R Bigio, Auckland

H P Holland, Auckland

Copies To:   Pidgeon Law (L J Fry-Irvine), Auckland

Bramwell Grossman (S C Cowan), Hastings

ANDERSON and ANDERSON v FM CUSTODIANS LTD and Anor [2014] NZHC 382 [6 March 2014]

[1]      On  17  September  2013  I  delivered  an  interim  judgment  (Anderson  v FM Custodians Ltd [2013] NZHC 2423) allowing the appellants’ (the Andersons) appeal against a decision of the District Court, which in turn had been made in respect of an appeal against a decision of the Residential Tenancies Tribunal (the Tribunal). The first and second respondents now seek leave to appeal this judgment to the Court of Appeal. The application for leave to appeal is opposed by the Andersons.

[2]      The right to make this application is provided in s 120 of the Residential Tenancies Act 1986 (the RT Act).  This Court can only grant leave under s 120 if in its opinion the appeal involves a question of law that because of its general or public importance or for any other reasons ought to be submitted to the Court of Appeal for decision.

[3]      The Court must first consider whether there is an identifiable question of law that is capable of serious and bona fide argument in a case involving some interest of sufficient importance to outweigh the cost and delay of a further appeal: Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee (1999) 13 PRNZ 609 (CA); and Cooper v Symes (2001) 15 PRNZ 166.

The proposed questions of law

[4]      The respondents originally advanced a number of proposed questions of law for  appeal.    However,  during  the  course  of  the  hearing  they  drew  back  from advancing some of these questions and focused instead on the following questions of law:

(a)       The decision is wrong in law;

(b)The decision is wrong in that the interpretation of the term “residential premises” in the Act is wrong:

(i)In determining that the term means “residential premises being used lawfully as residential premises”; or

(ii)In determining that the premises were being used unlawfully if being used in contravention of the terms of the resource consent.

[5]      The abandoned proposed questions involved requesting the Court of Appeal to make some assessment of whether this Court had made errors of fact in determining whether the resource consent affecting the subject premises restricted the age of the occupants.  Before this Court, the matter had proceeded on the basis that the parties accepted that the resource consent imposed an age restriction on the occupants of the premises: see [53] of Anderson v FM Custodians Ltd.  Nonetheless, because the resource consent had not been the “subject of careful examination” either before the Tribunal or the District Court, at [81] of the judgment I allowed for the possibility that the factual position of the resource consent might not be “as presented to me”.  Thus, the parties were given the opportunity to make submissions on whether the matter should be referred back to the Tribunal for re-hearing so that the Tribunal  could  determine  if  the  resource  consent  was  “as  restrictive  as  the available evidence shows it to be”: see [83] of the judgment.

[6]      At the hearing of the application for leave to appeal, the respondents accepted that whether the resource consent restricted the age of the occupants of the premises was a question that was ultimately left open for determination should the matter be referred back to the Tribunal. Accordingly, the respondents abandoned the questions of law relating to this issue.

[7]      The Andersons oppose leave to appeal being granted, as they contend that: (a)         The appeal does not raise a question of general or public importance; (b)  There is no error of law in the judgment;

(c)      The  appeal  does  not  involve  some  public  or  private  interest  of sufficient importance to outweigh the cost, both to the Court system and to the parties, and the delay of further appeal;

(d)      The appeal has no broad application or precedent value; and

(e)       The respondents have other remedies available to them.

[8]      The Andersons submit that in light of the above, it is not in the interests of justice that there be a third appeal.   Their remaining grounds of opposition were addressed to questions of law that were abandoned.

[9]      The parties accept that the RT Act and, therefore, the Tribunal’s jurisdiction are confined to residential premises.   The outcome in this Court hinged on the interpretation of the term “residential premises” in the RT Act.   The Andersons submit that this Court’s analysis and approach to the interpretation of “residential premises” is robust and that the respondents do not have a good argument that the resulting interpretation of a residential tenancy is incorrect.

[10]     The Andersons argue that the legal questions dealt with in the judgment have no broad application or precedent value.  In this regard, the Andersons argue that the dispute between the parties occurs in the context of a unique fact scenario being a historical system of occupancy for retirement villages, which has been superseded by the Retirement Villages Act 2003.

[11]     The Andersons also refer to the interim nature of the decision and argue that if it were allowed to remain, further enquiries are needed, including a re-hearing before the Tribunal, to enquire into the nature of the resource consent for the subject property.

[12]     The Andersons contend that the issue in this case only arises in circumstances where the occupant in an application before the Tribunal in proceedings alleges the property is not a residential property and the premises are being unlawfully used as a residential property.

[13]     The Andersons also point to other remedies available to the respondents, including the right to bring proceedings in the High Court for possession of the subject premises pursuant to s 105 of the Land Transfer Act 1952.

[14]     The  Andersons  advanced  carefully  crafted  arguments  that  attempted  to confine the reasoning of the judgment to the peculiar factual circumstances of their occupancy of the premises.   However,  I do  not think that the reasoning of the judgment can be confined in that way.

[15]     Whether the RT Act only applies to premises that can lawfully be used as residential premises is central to the reasoning in the judgment.  I found that to be the case.   The legal interpretation of the jurisdictional basis of the RT Act is why the Andersons’ appeal was successful.   Further, I rejected the notion that all that was required for the RT Act to take effect was for there to be an actual residential use of premises.  On this latter view, it would not matter if the premises in question were a defunct retirement village or an abandoned commercial building.   In either case, persons living there could be the subject of eviction under s 65 of the RT Act, whereas on the view that I took of this Act they could not.  Instead, those who were entitled to lawful possession of such premises would have to rely on the law of trespass to remove squatters.

[16]     The respondents’ proposed questions for appeal reflect the legal point on which the judgment hinges.   I consider that the proposed questions raise issues of general and public importance.  I also consider that they involve a question of law that is capable of serious and bona fide argument.

[17]     The sole factor in my view that is against granting leave to appeal is the fact that the respondents have available to them another remedy in the form of s 105 of the Land Transfer Act and the law of trespass.   However, that would entail them commencing fresh proceedings for the Andersons removal.  If the appeal proceeds and the respondents are successful they will be able to effect the orders they obtained from the Tribunal under s 65 of the RT Act.  This will avoid further hearings.  On the other hand if the Andersons are successful further steps will be required before the matter can be finally resolved.   There would remain the need to be sure that the resource consent had the effect that to date everyone has accepted.   However this matter is approached, there may be no quick easy solution.   Having the proposed questions of law determined on appeal has, depending on the outcome, the potential

to provide a final solution.  Accordingly, the availability of another remedy is not a barrier to granting leave to appeal in this case.

[18]     It follows that the respondents are granted leave to appeal on the proposed questions set out at [4] herein.

Result

[19]     The respondents are granted leave to appeal to the Court of Appeal.

Duffy J