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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 382
Decision Date: 6 March 2014

CaseChat Overview and Summary

In the case of Anderson v FM Custodians Limited, the respondents sought leave to appeal from an interim judgment delivered by Justice Duffy on 17 September 2013, in which the appeal of the Andersons against a decision of the District Court was allowed. The District Court decision had been made in respect of an appeal against a decision of the Residential Tenancies Tribunal. The respondents, FM Custodians Limited and Ghuznee Holdings Limited, sought leave to appeal to the Court of Appeal, which was opposed by the Andersons. The application for leave to appeal was based on section 120 of the Residential Tenancies Act 1986.

The court considered whether there was an identifiable question of law that was 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. The proposed questions of law focused on the interpretation of the term “residential premises” in the Act, specifically whether the term meant “residential premises being used lawfully as residential premises” and whether the premises were being used unlawfully if being used in contravention of the terms of the resource consent.

The Andersons opposed the leave to appeal, arguing that the appeal did not raise a question of general or public importance, there was no error of law in the judgment, and the appeal did not involve a public or private interest of sufficient importance to outweigh the cost and delay of further appeal. They also argued that the appeal had no broad application or precedent value and that the respondents had other remedies available to them.

Justice Duffy considered that the proposed questions of law raised issues of general and public importance and involved a question of law that was capable of serious and bona fide argument. Although the respondents had another remedy in the form of section 105 of the Land Transfer Act and the law of trespass, the availability of another remedy was not a barrier to granting leave to appeal in this case. The court concluded that having the proposed questions of law determined on appeal had the potential to provide a final solution, depending on the outcome.

The court granted leave to appeal to the Court of Appeal on the proposed questions of law.

Orders