Anderson v FM Custodians Ltd - [2013] NZHC 2423

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-001985 [2013] NZHC 2423

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: 11 June 2013
[Final Submissions Received on 9 July 2013]

Counsel: D R Bigio and N Taefi for the Appellants
H P Holland for the Respondents

Judgment: 17 September 2013

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 17 September 2013 at 1.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: D R Bigio, Auckland
N Taefi, Auckland
H P Holland, Auckland

ANDERSON v FM CUSTODIANS LTD and ANOR [2013] NZHC 2423 [17 September 2013]

[1] The appellants, Mr and Mrs Anderson, who are occupiers of the subject property, are appealing against a District Court decision to uphold a Tenancy Tribunal order for possession that deprives the appellants of their occupancy of the property.

Background

[2] The subject property is a townhouse known as Unit Q of 40 Linnet Place, Mangere (“Unit Q”). Unit Q was the manager’s unit in a retirement housing facility that was known as Culverden Retirement Village (“the village”). This village was run by Culverden Retirement Village Limited (“the company”), of which Mr and Mrs Anderson were the directors.

[3] Planning consent for the village was granted by the Manukau City Council under ss 67 and 72 of the Town and Country Planning Act 1977 on 29 May 1989. According to ss 365(a) and 383 of the Resource Management Act 1991 (the RMA), consents granted under Part 4 of the Town and Country Planning Act are deemed to be a resource consent (in particular, a land use consent) granted under the RMA on the same conditions. Accordingly, the consent can be enforced under s 14 of the RMA. I shall therefore refer to this consent as a resource consent.

[4] On 11 May 1992, the company granted a first registered mortgage over Unit Q to Halliwells Securities Ltd (Halliwells), who transferred the mortgage to FM Custodians Ltd on 5 January 2005. This mortgage was discharged and the company granted a new first mortgage, with FM Custodians Ltd being registered as mortgagee.

[5] On 1 April 2011, the company defaulted under the mortgage and, on

8 November 2011, FM Custodians Ltd requested that Mr and Mrs Anderson pay rent on Unit Q. On 21 June 2012, Unit Q was sold under mortgagee sale by FM Custodians Ltd to Ghuznee Holdings Ltd. Ghuznee Holdings Ltd sought a possession order. However, Mr and Mrs Anderson refused to vacate Unit Q on the basis that they have a deed of life interest dated 30 October 2002 that they entered into with the company. This deed was not registered against the certificate of title,

nor was there a caveat indicating…

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: [2013] NZHC 2423
Decision Date: 17 September 2013

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Mr and Mrs Anderson against the decision of the District Court that upheld a Tenancy Tribunal order for possession of Unit Q, a townhouse that was part of a defunct retirement village. The appeal was based on five grounds, focusing on the jurisdiction of the Tribunal and the interpretation of the Residential Tenancies Act 1986 (RT Act). The court considered whether Unit Q could be considered as residential premises under the RT Act and whether the Tribunal had jurisdiction to determine the appellants' life interest in Unit Q.

The court held that the Tribunal had jurisdiction to determine if the appellants' interest amounted to a fixed term tenancy, as a life interest could be characterized as such under the RT Act. The court found no error in this regard. However, it ruled that Unit Q could not be characterized as residential premises under the RT Act because its use as a residence would breach the resource consent and the Human Rights Act 1993. This led the court to conclude that the Tribunal and District Court erred in finding that Unit Q was residential premises and that the resource consent was irrelevant. The court also found that the mortgagee and purchaser were not bound by the appellants' life interest, as the appellants could not show they held an interest with priority over the mortgage or by reason of the mortgagee's consent.

The court set aside the orders of the Tribunal and District Court and directed the appellants to file submissions on whether the matter should be sent back to the Tribunal for rehearing. The respondents would then have the opportunity to respond, followed by any reply from the appellants. The court granted the parties leave to file memoranda on costs.

Orders