Angelo v Lehr
[2022] NZHC 3033
•18 November 2022
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2022-44-13
[2022] NZHC 3033
UNDER Section 119 of the Residential Tenancies Act IN THE MATTER
of an appeal from a decision of the District Court
BETWEEN
JOSEPH ANGELO
Appellant
AND
HANS-WERNER LEHR, SILVAIN SCHAEFFER, DOMINIS SINUE GARBEN, HANNE GARBEN & PETER
JENKINS as trustees of THE BIODIVERSITY SONNOS TRUST
Respondents
Hearing: 19 September 2022 Appearances:
Appellant in Person
J Maslin-Caradus for Respondents (via AVL)
Judgment:
18 November 2022
JUDGMENT OF McQUEEN J
[1] Mr Angelo appeals against a decision of the District Court dated 25 February 2022.1 This decision dismissed Mr Angelo’s appeal against the decision of the Tenancy Tribunal (the Tribunal) declining to rehear the respondents’ successful application for a possession order of 1891 Takaka-Collingwood Highway, Parapara R D 2, Collingwood (the Property) made under s 65 of the Residential Tenancies Act 1986 (the Act).2
1 Angelo v Lehr [2022] NZDC 3185.
2 The respondents are the trustees of the Biodiversity Sonnos Trust. In their submissions, the respondents refer to themselves as “the Trust”. I therefore refer to the respondents as “the Trust”.
ANGELO v HANS-WERNER LEHR & ORS [2022] NZHC 3033 [18 November 2022]
Conduct of the hearing
[2] It was anticipated that the hearing of this appeal would be conducted remotely, with Mr Angelo appearing from the Nelson High Court and counsel for the Trust, Ms Maslin-Caradus, appearing by VMR. In the event, Mr Angelo appeared in person at the Wellington High Court. He was accompanied by a Mr Ó’Coileáin. Mr Ó’Coileáin expressed his preference to be referred to as G, with no honorific.3 Accordingly, this is how he is referred to throughout the remainder of the judgment.
[3] G was present at Court for two reasons. First, because of Mr Angelo’s wish that G be available to give evidence during the hearing, as discussed further below. Secondly, Mr Angelo advised me that G was present to act as Mr Angelo’s “McKenzie friend”, in order to provide him with advice and support.
[4] Fairly early in the hearing, although after Mr Angelo had addressed the preliminary evidence issues (discussed below), Mr Angelo asked the Court if G could speak on his behalf as he was finding it difficult to explain his case. I explained that it was only in exceptional circumstances that a McKenzie friend would be permitted to speak for a self-represented litigant.4 I asked Ms Maslin-Caradus whether the Trust had any objection to G taking on this role. The Trust did not object, and accordingly I permitted G to make submissions on behalf of Mr Angelo. Over the course of the hearing, both G and Mr Angelo presented submissions.
Preliminary evidence issue
[5] Mr Angelo had indicated in several documents filed with the Court that he wished to adduce further evidence at the hearing of the appeal. In the affidavit he filed on 13 September 2022, Mr Angelo stated that he wanted to call G as a witness and that he wished to play electronic recordings of conversations as evidence.
[6] I indicated to the parties that I would address the question of further evidence as a preliminary matter.
3 I note that in the District Court judgment under appeal, G was referred to as Mr Amber.
4 See Craig v Slater [2017] NZHC 874, (2017) 23 PRNZ 524 at [2].
[7] Mr Angelo then informed me that he was no longer seeking to play the electronic evidence but that he wished to call evidence from G, who was present. He expressed concern about not having been able to call all evidence he thought relevant at an earlier Tribunal hearing.
[8] The Trust opposed any further evidence being adduced by Mr Angelo, in the circumstances. The Trust submitted that G’s statement of 14 February 2022 was before the District Court and that G had given oral evidence at the Tribunal hearing of Mr Angelo’s application for a rehearing of his application for confirmation of a residential tenancy.5 The Trust stated that the main alleged relevance of G’s statement is his discussion of the written Tenancy Agreement dated 31 March 2015 (the 2015 Tenancy Agreement).6 The Trust said that this was considered by both the Tribunal and the District Court and was found to have been superseded or varied. Accordingly, the Trust submitted that any evidence relating to the 2015 Tenancy Agreement was not fresh evidence.
[9] I invited Mr Angelo to respond to the points made by the Trust. Mr Angelo referred to s 85 of the Residential Tenancies Act 1986 (the Act). He submitted that the miscarriage of justice asserted is that the Tribunal adjudicator ignored evidence of the 2015 Tenancy Agreement.
[10] I informed the parties that I would not grant Mr Angelo leave to adduce any further evidence. I indicated that I would provide written reasons for this decision when I issued this judgment. The reasons follow.
[11]The appeal to this Court relies on s 119 of the Act:
119 Appeal on questions of law to High Court
(1)Any party to an appeal under section 117 of this Act who is dissatisfied with the decision of the District Court Judge as being erroneous in point of law may appeal to the High Court on that question of law.
(2)Every appeal under this section shall be dealt with in accordance with the High Court Rules 2016.
5 Discussed at [21] below. See also Angelo v Lehr, above n 1, at [65]–[66].
6 Further discussed at [19]–[23].
[12] As noted by the learned authors of McGechan on Procedure, generally an appeal proceeds on the evidence that was presented to the decision-maker, and the parties do not have an opportunity to bolster their case with new evidence on appeal. Rule 20.16 of the High Court Rules 2016 states that a party to an appeal may adduce further evidence only with the leave of the court. The court may grant leave only if there are special reasons for hearing the evidence.7 The law is clear on the general test for granting leave: the evidence must cogent and likely to be material, and not reasonably discoverable at an earlier stage.8
[13] Adducing further evidence on appeal when the appeal is on a question of law only, is even more difficult. While the Court may exercise its inherent jurisdiction to receive further evidence in exceptional circumstances, there must be “very special reasons” to allow further evidence in an appeal on a question of law.9 The fact that new evidence demonstrates factual error in the Court below does not constitute special reason to admit it in an appeal limited to a question of law.10
[14] I am not satisfied that these are exceptional circumstances. Evidence from G was available to the Tribunal and the District Court. I understand Mr Angelo’s concern to be how the Tribunal regarded the 2015 Tenancy Agreement, and I do not consider that this is a matter to be resolved through the provision of further evidence.
Background
[15] Mr Angelo’s presence and legal entitlement to be at the Property have been contested between Mr Angelo and the Trust for some time.
[16] The Property is the location of the “Spirit of Nature” community founded by the late Ursus Schwarz, who was also the settlor of the Trust. Mr Lehr, a trustee of the
7 High Court Rules 2016, r 20.16(3). An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
8 Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR20.16.02] and [HR20.16.03].
9 CH and DL Properties Ltd v Christchurch District Licensing Agency (2010) 20 PRNZ 680 (HC) at [34].
10 Chamberlain v Scott [2012] NZHC 2596, (2012) 21 PRNZ 176 (HC).
Trust, describes the purpose of the Trust as being, broadly speaking, to promote a community which fosters spiritual growth and Planet Earth awareness.
Mr Angelo’s application for confirmation of residential tenancy
[17] On 28 February 2021, Mr Angelo applied to the Tribunal, seeking an order confirming that he had a residential tenancy at the Property.11 On 4 April 2021, the Trust lodged a cross-application for a declaration that there is no residential tenancy, to otherwise terminate the tenancy and to make an order for possession. The District Court judgment records that both parties lodged substantial documentation in support.12
[18] On 13 May 2021, the Tribunal held that the caravan on the Property was Mr Angelo’s principal place of occupancy, that it was not a “residential premises”, and there was therefore no jurisdiction for the Tribunal to make the orders sought by either party (the Caravan decision).13 The Tribunal considered s 8 of the Act (where parties to excluded tenancies may agree that the Act applies) and concluded that there was no such opting-in by the parties.14 The Tribunal recorded Mr Angelo’s view that he had seen a brochure about the Spirit of Nature commune which referred to the ability to “stay forever” and that he had been told the philosophy was “to contribute what one is ethically able to do, whether it be work, money, or some other expertise”.15 The Tribunal went on to acknowledge Mr Angelo’s issues with the current and historic operation of the Spirit of Nature but recorded that these were more akin to concerns of a member than a tenant and not for the Tribunal’s consideration.16
[19] Mr Angelo applied for a rehearing of the Caravan decision. He raised several grounds, including that he did not have sufficient time to present his application and call witnesses at the original hearing. He argued this meant that relevant evidence was not considered by the adjudicator, specifically, a prior tenancy agreement between the
11 The application sought to have a 90-day notice to terminate deemed of no effect or, if deemed valid, to be deemed retaliatory, and sought a written tenancy agreement on terms Mr Angelo considered were settled.
12 Angelo v Lehr, above n 1, at [4] and [6].
13 Angelo v Lehr [2021] NZTT Nelson 4293884, 4297003, 13 May 2021 [the Caravan decision].
14 At [24]–[25].
15 At [10]–[11].
16 At [28].
parties, the 2015 Tenancy Agreement, and evidence regarding a new tenancy he claimed was formed on 26 April 2016.
[20] The Tribunal dismissed the application for a rehearing in a decision dated 7 July 2021 (the Caravan rehearing decision).17
[21] The Tribunal adjudicator permitted Mr Angelo to call evidence from G at the hearing of the application for a rehearing. G gave evidence that a few days prior to the first Tribunal hearing, he had found a copy of the 2015 Tenancy Agreement.18 Mr Lehr, a trustee of the Trust, expressed concern about the validity of this agreement.19 The adjudicator noted that it was curious that the 2015 Tenancy Agreement was neither raised nor presented at the first hearing and was ultimately not convinced that it was unavailable at the time of that hearing.20 He concluded that given Mr Angelo was aware of it but never raised its existence at that time, this diminished the argument that subsequent production of the 2015 Tenancy Agreement should be considered grounds for a rehearing.21
[22] The adjudicator went on to consider whether this prior tenancy, if it existed, would bind the parties, given the tenancy Mr Angelo claimed commenced on 26 April 2016. He noted that for a tenancy to commence, any prior tenancy must conclude and that there was no evidence of either party terminating the 2015 Tenancy Agreement.22 The adjudicator considered whether the 2015 Tenancy Agreement established an inclusion under s 8 of the Act. He noted that any such consideration would pertain to the 2015 Tenancy Agreement only and that no written agreement between the parties had been provided to the Tribunal for the period starting 26 April 2016.23 He noted that the lack of any agreement had been problematic, and that Mr Angelo appeared to be confusing his membership or involvement in the Spirit of Nature with a tenancy at the Property.24
17 Angelo v Lehr [2021] NZTT Nelson 4293884, 42970003, 7 July 2021 [the Caravan rehearing decision]. An application for suppression of names and identifying details was made but declined.
18 At [21].
19 At [22].
20 At [22]–[23].
21 At [23].
22 At [24].
23 At [25].
24 At [25].
[23] The adjudicator concluded that the subsequently claimed existence of a written tenancy agreement from 1 March 2015 contradicted the description by Mr Angelo of that period as a “trial period”, prior to what Mr Angelo said was the current tenancy, formed in April 2016.25 The adjudicator considered that it would appear reasonable, if the intention of both parties was to be bound by the Act, that this exercise would have been repeated in April 2016 when this claimed tenancy was said to commence.26
[24] The adjudicator recorded that while Mr Angelo maintained that he did not have sufficient time and the opportunity to call all witnesses at the original hearing as he desired, the adjudicator believed that he had heard sufficient submissions in evidence prior to making his determination that the jurisdiction did not exist to continue to a substantive hearing and that striking out the application for a rehearing was appropriate. He repeated that two witnesses were called at the original hearing and a third (who was G) at the hearing to consider the application for a rehearing. The tabling of a prior tenancy agreement at the second hearing, when it was reasonably available at the time of the first hearing, was not considered grounds for a rehearing from both the timing and material consideration.27 The adjudicator also referred to s 85 of the Act, noting the manner in which the Tribunal’s jurisdiction is to be exercised.28 Finally, the adjudicator recorded that, as he had noted in the initial decision, many of the concerns raised by Mr Angelo were outside of the Tribunal’s jurisdiction.29
Trust’s application for order for possession of Property
[25] On 30 August 2021, the Trust lodged an application with the Tribunal for a declaration that the Trust was entitled to possession of the Property under s 65 of the Act. This application was heard on 14 October 2021.
[26] On 20 October 2021, the Tribunal issued its decision, finding that Mr Angelo had no right of occupation granted by any person having lawful authority to grant that
25 At [26].
26 At [26].
27 At [27].
28 At [28]–[29].
29 At [31].
right, and that as required by s 65(1) of the Act, the Tribunal must make a possession order granting possession to the Trust (the Possession decision).30
[27] The Possession decision shows that, once again, the 2015 Tenancy Agreement was relied on by Mr Angelo as according him his current right of occupation. The Tribunal did not accept that the 2015 Agreement afforded Mr Angelo that right:31
… Events and variations in whatever arrangements were made since any 1 March 2015 agreement are considered to have superseded it. If I accept Mr Angelo’s position that the tenancy formed later in April 2016 that is further grounds to put aside the 1 March 2015 agreement as presented. I do not consider a lack of any written termination of that 1 March agreement gives it standing today. Regardless, even if I am wrong, any such right has been revoked.
[28] The Possession decision also records that at the 14 October 2021 hearing, Mr Angelo claimed he was unprepared for the hearing and that he wanted to call two witnesses. The hearing had been adjourned from its first scheduled date for the benefit of Mr Angelo, due to his then pregnant partner being very close to giving birth.32 The Tribunal concluded that the failure to have witnesses or any witness statements available at the hearing was Mr Angelo’s. The Tribunal observed that it had not been provided with any compelling information of what those two witnesses may have spoken to, with regard to the narrow focus of the consideration of the application for possession. The Tribunal declined to adjourn the matter further, noting that it must equally consider the Trust’s right to an expeditious hearing under s 85 of the Act.33
[29] On 2 November 2021, Mr Angelo applied for a rehearing of the Possession decision, out of time. Mr Angelo filed detailed material in support of the application.
[30] On 8 November 2021, the Tribunal agreed to hear Mr Angelo’s rehearing application, despite it being lodged out of time. The Tribunal advised that the application would be heard on the papers and made timetabling directions for written submissions by each party. The Trust filed submissions and supporting documentation, but Mr Angelo did not file any further submissions.
30 Lehr v Angelo [2021] NZTT Nelson, 4313365, 20 October 2021 [the Possession decision].
31 At [34].
32 At [38].
33 At [40].
[31] The Tribunal issued its decision on 16 November 2021, dismissing the application for a rehearing (the Possession rehearing decision).34
[32] The Tribunal noted that Mr Angelo had sought a rehearing on the grounds that his “authentic residential tenancy contract”, consistent rent payments and electricity payments had been set aside as irrelevant by the Tribunal and that to call him a squatter with the resulting possession order in favour of the Trust was a substantial miscarriage of justice.35 It observed that Mr Angelo sought the opportunity to bring further evidence before the Tribunal.36
[33] The Tribunal referred to s 105 of the Act, which provides that the Tribunal has the power to order a rehearing where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.37
[34] The Tribunal observed that usually the party applying for the rehearing must show that something went wrong with the Tribunal’s procedure, for example that they did not receive notice of the hearing or they were not able to properly present their case. A rehearing may also be granted where there is new evidence that was not reasonably available at the first hearing, if it could have affected the outcome.38
[35] The Tribunal, referring to the considerations set out in Rae v International Insurance Brokers (Nelson Marlborough) Ltd,39 concluded that any further evidence or witness Mr Angelo sought to introduce via a rehearing would not constitute fresh evidence that could not have been available at the hearing or that would have direct relevance to the factual determination of a s 65 application for possession.40
34 Lehr v Angelo [2021] NZTT Nelson, 4313365, 16 November 2021 [the Possession rehearing decision].
35 At [4].
36 At [19].
37 At [5].
38 At [6].
39 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA).
40 The Possession rehearing decision, above n 33, at [20]–[21].
[36] The Tribunal found that Mr Angelo’s application blurred matters relevant to a rehearing of the Possession decision with other matters heard by the Tribunal as part of another application or matters that were outside of the Tribunal’s jurisdiction.41
The District Court decision
[37] Mr Angelo appealed to the District Court against the Tribunal’s refusal to grant a rehearing in relation to the Trust’s s 65 application for possession. The appeal was heard on 18 February 2022.
[38] The District Court decision sets out the background to the matter, the relevant legal principles and the parties’ submissions, before reaching a conclusion.
[39]The District Court Judge found:42
I am left with concluding that there is no fresh evidence which would have altered the Tribunal’s decision, there is no procedural unfairness and that Mr Angelo is unhappy with the various Tribunal decisions, including the Rehearing Decision and that he is simply wanting to reargue his case.
[40]He went on to say:43
I am content to conclude that the Tribunal in the Rehearing Decision carefully considered Mr Angelo’s application for a rehearing, and that the Tribunal approached it having regard to the correct legal principles. Accordingly, Mr Angelo’s appeal is dismissed.
[41] The District Court dismissed Mr Angelo’s appeal. Mr Angelo has appealed to the High Court against the District Court’s decision.
Approach to this appeal
[42] Section 105(1) of the Act provides the Tribunal with the power to order a rehearing of the whole or any part of the proceedings on the ground that “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
41 At [11].
42 Angelo v Lehr, above n 1, at [71].
43 At [73].
[43] The District Court in Wellington City Council v McMillan confirmed that s 105 uses strong words which set a high standard and has a procedural focus, stating:44
[18] They most obviously apply… to cases of procedural error eg a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available.
[19] In my view, however, the words do not cover a complaint that the Tribunal was merely mistaken or wrong in its findings of fact or in its application of the law. There are two reasons for this. First the strength of the language in s 105 is such that something more than a mere wrong decision must be shown. The section does not speak of a decision being wrong, but of a substantial wrong or miscarriage of justice occurring. This implies obvious injustice, not merely an erroneous decision.
[44] Section 117(1)(A) of the Act states that a party who is dissatisfied with a Tribunal decision not to grant a rehearing may appeal to the District Court.
[45] Section 119 of the Act provides that a party dissatisfied with a District Court Judge’s decision as erroneous in point of law, may apply to the High Court on that question of law.
[46] The law is settled as to the approach to an appeal to the High Court. As concluded in Anderson v FM Custodians Ltd45 and approved in Smith v Accessible Properties New Zealand Ltd,46 the Court is not to substitute is own view for that of the lower court. Instead, the Court must consider whether the decisions under appeal reveal a misinterpretation and/or misapplication of the statutory powers in the Act, and if not, whether what has been decided is so misconceived that it is an unlawful decision. The Court has no jurisdiction to review findings of fact unless it can be shown that the Judge misunderstood the statutory language, the proper construction of the statute being a matter of law, or the Judge made a finding for which there was no evidence, or which was inconsistent with the evidence and contradictory to it.47
44 Wellington City Council v McMillan [2003] DCR 50 at [18] and [19].
45 Anderson v FM Custodians Ltd [2013] NZHC 2423 at [32].
46 Smith v Accessible Properties New Zealand Ltd [2018] NZHC 1010 at [31].
47 Kelly v Portfolio Property NZ Ltd [2017] NZHC 915 at [22].
[47] Accordingly, what is contemplated by s 119 is a limited task and not an opportunity for Mr Angelo to reargue why he thinks the Tribunal made the wrong decision on the facts in the Possession decision. The task is particularly limited in the present case because the issue is focused on whether a rehearing should have been granted.
Mr Angelo’s submissions
[48] Mr Angelo filed a notice of appeal, various memoranda and an affidavit in anticipation of the hearing of this appeal. Various points on appeal were identified in these documents.
[49] Before I set out the submissions made for Mr Angelo, I note that several factual statements were made in submissions that were not supported in the evidence available to me. Given my decision not to allow further evidence to be adduced, this material is inadmissible. I nonetheless repeat some of the factual material here for the purpose of articulating Mr Angelo’s position but note that I do not take that material into account in my decision on the appeal.
[50] In his initial oral submissions, Mr Angelo confirmed that he was seeking a rehearing of the Possession decision. He also said he was seeking the right to appeal the Tribunal’s Possession decision as there is no evidence that his 2015 Tenancy Agreement has been cancelled. Finally, he submitted that he was not given his full rights as contemplated under s 93 of the Act at the Tribunal hearing of his application for confirmation of a residential tenancy (the Caravan hearing), arguing that if the Tribunal had heard evidence from G at that hearing, a series of bad decisions would not have followed.48
[51] G further addressed Mr Angelo’s points of appeal. He submitted that there were eight errors of law so egregious that no Tribunal adjudicator properly directed could behave as he did. G referred to Mr Angelo’s recordings of speaking with Tenancy Tribunal administrative staff where he advised them that he had 13 witnesses
48 Section 93(1) of the Act provides that at any hearing before the Tribunal, every party shall be entitled to attend and be heard, to call evidence, and to examine, cross-examine, and re-examine witnesses.
to call at the hearing and that one to two days would be required for the hearing. G said it appeared that this request was not passed onto the adjudicator. G said that the Caravan hearing in fact started at 1.30 pm and was completed at 5 pm. G submitted that Mr Angelo’s documentation had been corrupted as Mr Angelo had applied for an order for name suppression and had raised the issue of the Trust’s legal status, yet these matters were not before the adjudicator. I note that G did not refer me to any supporting evidence in the bundle of documents available to the Court in relation to these matters.
[52] G then indicated that he wished to focus on three key errors of law. He submitted that the first error of law is based on the following grounds:
(a)Mr Angelo’s application to the Tribunal for confirmation of a residential tenancy (the application dealt with in the Caravan Decision) was corrupted;
(b)the Tribunal adjudicator was confused as to the status of the landlord; and
(c)the adjudicator had said in the Caravan hearing that the board of a charitable trust was a different animal from the trustees of a charitable trust.49
[53] G submitted that the second error of law was that the most important evidence for Mr Angelo (being the 2015 Tenancy Agreement) was not called at the Caravan hearing. G acknowledged that it was Mr Angelo’s fault that other irrelevant, or less relevant, evidence was called first. G said that at the Caravan hearing, he was signalling to Mr Angelo from the back of the room that he should have been calling G as a witness and that G was waving the 2015 Tenancy Agreement, which the Tribunal adjudicator would have been able to see.
[54] G submitted that this failure to allow Mr Angelo to call G and his remaining witnesses was in breach of s 93 of the Act. G submitted that s 93 does not use the word
49 These grounds of appeal were not pursued in argument at the hearing although the points identified are addressed in Mr Angelo’s various memoranda and affidavits filed in the High Court. G submitted that the second and third errors of law were the main points of Mr Angelo’s case.
“may” but rather says that a party “shall be entitled to attend and be heard, to call evidence, and to examine, cross-examine, and re-examine witnesses” (emphasis added).50 G stated that Mr Angelo had the impression that stopping at 5 pm was simply an adjournment of the hearing. The adjudicator had asked Mr Angelo for emails providing evidence of Mr Angelo’s allegation that the Trust was taking retaliatory steps. G submitted that this further caused Mr Angelo to believe that the hearing would resume at a later date. G considered that this was the most important error of law.
[55] The third point of law asserted by G relates to the 2015 Tenancy Agreement. G submitted that it is clearly a defective document. G said a similar document had been used by the Trust at least six times for other tenants and it was some of these tenants who were prevented from giving evidence at the Caravan hearing. He also argued that the doctrine of contra proferentem was relevant to understanding the 2015 Tenancy Agreement.51
[56] G submitted that if the 2015 Tenancy Agreement had been in front of the adjudicator, he would have seen that cl 4 says that it is subject to the Act. This would have amounted to the Trust and Mr Angelo opting into the Act in accordance with s 8 of the Act, which contemplates that parties can agree in writing that the Act applies. It would therefore not have been a sufficient answer to Mr Angelo’s application for confirmation of a residential tenancy that the caravan was placed on bare ground. Because the 2015 Tenancy Agreement was not in front of him, the adjudicator was misdirected in the belief that he had no jurisdiction.
[57] G said that Mr Angelo forgot about the 2015 Tenancy Agreement at the time of the Caravan hearing, as he had been living on the Property for years, paying rent into a bank account under the description “donations”.52 G submitted that this meant the 2015 Tenancy Agreement was ambiguous and/or defective but did not mean it was
50 G did accept that on hearing witnesses, the adjudicator is entitled not to accept evidence as repetitious or irrelevant, as contemplated by s 97 of the Act.
51 A doctrine standing for the proposition that where an agreement is ambiguous, the meaning should be construed against the party that has provided the agreement.
52 This is a particular example of new evidence the Trust objected to, which the parties agreed was not already in evidence. I reminded G that he was speaking in his capacity as a McKenzie friend for Mr Angelo and not as a witness and that I had earlier declined Mr Angelo’s informal application for further evidence to be adduced.
a nullity, rather, because Mr Angelo was paying money into the bank account, something must have been intended by the document.
[58] G then referred to aspects of Mr Angelo’s application for rehearing in relation to the Caravan matter. While counsel for the Trust was able to locate a copy of the application, I was advised that this document is not in the bundle of documents and it was not otherwise provided to the Court. G relied on this application to reiterate his earlier points, emphasising that the fundamental error of law was Mr Angelo being precluded from calling all the witnesses he considered relevant at the Caravan hearing.53 G submitted that no rehearing would have been required if the first hearing had been properly conducted.
[59] G submitted that s 13B of the Act required that any variation to the Tenancy Agreement had to be in writing and that this was the obligation of the landlord and that the Tribunal was wrong to assess the 2015 Tenancy Agreement as “superseded”.54
[60] In conclusion, G submitted that Mr Angelo has suffered a miscarriage of justice and, in reliance on s 85 of the Act, a rehearing is therefore required.
Trust submissions
[61] Counsel for the Trust relied on its written submissions dated 7 June 2022. In essence, the Trust submitted that Mr Angelo has not identified any error of law in the District Court judgment. Rather, the Trust submitted that the District Court correctly applied the high bar set under s 105 of the Act. The Trust emphasised that the Caravan decision is not at issue before this Court. Rather, it is a question of whether the District Court’s decision to dismiss Mr Angelo’s appeal against the Tribunal’s refusal to grant him a rehearing of the Trust’s application for a possession order gives rise to an error of law.
53 I record that the Trust’s position was that Mr Angelo’s application for a rehearing of the Caravan Decision is completely irrelevant to the matter before the Court, it was not before the Court, and the Court should not consider anything from this application.
54 I note this must be a reference to a finding in the Possession decision as the Caravan decision simply found that the Tribunal had no jurisdiction.
[62] The Trust summarised Mr Angelo’s grounds of appeal in its written submissions. The Trust submitted that the first ground, that Mr Angelo had a lawful written tenancy that has not been terminated (the 2015 Tenancy Agreement), was a factual matter already determined by the Tribunal in its Possession decision, and the 10-day statutory timeframe for an appeal of the substantive decision has long passed. The Trust said that if Mr Angelo disagreed with that conclusion, he should have appealed that decision and relied on the 2015 Tenancy Agreement together with any other evidence he had. But instead, Mr Angelo sought a rehearing, which requires there to be something procedurally wrong with the Tribunal process. The Trust said the remaining grounds of appeal do not relate to the availability of a rehearing or the legal principles relating to that.55 As a result, it submitted that this Court has no jurisdiction to consider those matters.
[63] The Trust submitted that the matters referred to by G on Mr Angelo’s behalf are not fresh evidence. The Trust says that the 2015 Tenancy Agreement is only one part of the story and it does not accept G’s suggestion that if he had been able to provide evidence at the Caravan hearing that anything would have changed. The Trust says that in any event, the adjudicator did consider the 2015 Tenancy Agreement at the hearing of the application for a rehearing of the Caravan application, where G was permitted to give evidence.
[64] The Trust relies on the context to explain why the adjudicator thought he had heard enough evidence at the Caravan hearing. No mention was made of the 2015 Tenancy Agreement at the Caravan hearing. While Mr Angelo filed substantial material in relation to the Caravan hearing, he did not include the 2015 Tenancy Agreement at that time. The Trust noted that the adjudicator at the Caravan hearing considered that he could determine the question of jurisdiction without hearing from all the witnesses proposed by Mr Angelo and that this would result in an expedited hearing.
55 These grounds relate to (1) being entitled to appeal the Possession decision in reliance on s 85 of the Act, (2) the Trust acted contrary to the Charities Act 2005 by harassing and evicting him, (3) the Trust acted contrary to the Trust Act 2019 by placing charitable land in trustee Mr Lehr’s own personal ownership, (4) Mr Angelo was unable to appeal the Possession decision because the statutory ten day period has passed and (5) the Trustees of the Trust are trying to hold and deal with the Property for their own personal benefit and in breach of the charitable purposes of the Trust.
[65] The Trust submitted that the argument that the parties had opted into the Act under the 2015 Tenancy Agreement is a new one and does not constitute a ground for rehearing. The Trust does not accept the relevance of the principle of contra proferentem in these circumstances and submits that there must be clear agreement between the parties to opt into the Act, which does not exist on the facts of this case.
[66] In response to G’s submission that the use of word “shall” in s 93 of the Act means Mr Angelo was entitled to bring all the evidence he wished before the Tribunal, the Trust submitted that s 85 and its emphasis on “fair and expeditious resolution” is important. It submitted that the Tribunal is a jurisdiction where tenants and landlords have disputes and are looking for swift, fair outcomes.
[67]As a result, the Trust sought orders that:
(a)the appeal be dismissed;
(b)the stay of enforcement of the District Court’s orders be lifted;
(c)the order for possession in favour of the Trust be affirmed; and
(d)indemnity costs be paid in respect of this appeal.
[68] The Trust submitted that Mr Angelo has crossed over into being a vexatious litigant. It pointed out that the Trust has few resources and has spent considerable money, time and energy on Mr Angelo’s concerns. The Trust has been deprived of possession of the Property for some time now.
Discussion
[69] It is undoubtedly the case that Mr Angelo is unhappy at the prospect of having to leave the Property and wishes to revisit many aspects of what has occurred between him and the Trust and what has and has not been addressed in the Tribunal and District Court hearings. The Trust is also unhappy that Mr Angelo remains on its Property. It wishes to be able to possess the land and enforce the Tribunal’s order granting it possession of the Property.
[70] I reiterate that this appeal is limited to considering whether the decision of the District Court Judge is erroneous in point of law. The decision of the District Court relates to whether the Tribunal erred in declining Mr Angelo a rehearing in relation to the Trust’s application for possession.
[71] As discussed earlier, in an appeal alleging that the District Court Judge’s decision was erroneous in point of law under s 119 of the Act, the test this Court must apply is whether the decision under appeal reveals a misinterpretation and/or misapplication of the statutory powers in the Act, and if not, whether what has been decided is so misconceived that it is an unlawful decision.56 The Court must examine whether the Judge misunderstood the statutory language, the proper construction of the statute being a matter of law or made a finding for which there was no evidence, or which was inconsistent with the evidence and contradictory to it. This test is perhaps more directed to cases where substantive matters are challenged in contrast to this case, where the Tribunal and District Court were dealing with a relatively confined assessment as to whether or not a rehearing should have been granted. Nonetheless, I consider that I can apply the test by asking whether the District Court Judge took the correct approach to the appeal before him.
[72] The Judge in the District Court correctly confirmed that his task on appeal was to “apply [his] fresh judgement to the matter [the Possession rehearing decision], applying the statutory criteria of s 105 of the Act.”57 The Judge recorded that it is well- settled law that the party applying for a rehearing must show that something went wrong with the Tribunal procedure or that there was new evidence that was not reasonably available at the first hearing, if it could have affected the outcome.58 He also noted that it is well settled law that if the Tribunal was simply wrong in its finding of fact, or its application of law, this is not sufficient to establish a miscarriage of
56 See discussion at [45] above.
57 Angelo v Lehr, above n 1, at [57]. This reflects the correct approach that an appeal under s 117 is an appeal by way of rehearing: Housing Corporation v Salt [2008] DCR 696 at [58]–[77]. I note also that the District Court made a direction on 1 December 2021 that in hearing the appeal it would not hear evidence other than that available to the Tribunal.
58 At [59].
justice.59 These statements reflect the Judge’s accurate understanding of Wellington City Council v McMillan.60
[73] The District Court Judge applied the correct approach to the appeal to the District Court. He concluded that there was nothing that suggested procedural unfairness. He carefully considered the new evidence put forward by Mr Angelo and justifiably found that none of it could be described as “new” in the sense that it could not have been provided to the Tribunal at the time of the Possession hearing.61 Rather, he considered that Mr Angelo simply wanted to reargue his case.
[74] While Mr Angelo has made various assertions and arguments in papers that he has filed in this Court, namely his notice of appeal and various memoranda filed in September 2022, I understand the essence of his concerns as conveyed at the hearing to be:
(a)That Mr Angelo was not permitted to call all the evidence he wished to at the Caravan hearing. He says his application was corrupted and so the Tribunal did not know he required a several days long hearing. In particular, Mr Angelo believes that the failure to hear G’s evidence in relation to the 2015 Tenancy Agreement was critical. He asserts that the 2015 Tenancy Agreement has not been cancelled;
(b)The 2015 Tenancy Agreement is defective but not a nullity and if the adjudicator had had it in front of him at the Caravan hearing, he would have applied s 8 of the Act and concluded that the parties had opted into the Act (that is, that the Act would have applied to the 2015 Tenancy Agreement).
(c)As a result, there has been a miscarriage of justice and Mr Angelo seeks a rehearing or an appeal of the issues considered at the Possession hearing.
59 At [60].
60 Wellington City Council v McMillan, above n 44.
61 Angelo v Lehr, above n 1, at [69]–[71].
[75] These points are not directed to any error of law in the District Court’s approach to the appeal. Rather, Mr Angelo’s submissions are focused on factual conclusions by the Tribunal and criticism of the Tribunal’s process, asserting that they constitute a miscarriage of justice.
[76] Of primary significance, as the Trust has submitted, the Caravan hearing is not at issue in this proceeding; rather it is the Possession rehearing decision that is at issue. For this reason, it is not now open to Mr Angelo to argue that there was a miscarriage of justice at the Caravan hearing, such that a rehearing should be ordered in relation to the Possession matter. The Tribunal has already considered and declined Mr Angelo’s application for a rehearing (in the Caravan rehearing decision) and Mr Angelo did not appeal that decision. Mr Angelo’s failure to appeal that decision cannot be remedied through the appeal process he has followed in the matter before me.
[77] Although strictly unnecessary for me to address, I note that the Tribunal is entitled to manage the exercise of its jurisdiction, as contemplated by s 85 of the Act, and must:
… exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants…
[78] Section 96(4) of the Act provides that the Tribunal may regulate its own procedure, and it is well-established that the policy underpinning the Act is that the process should be simple.62 Section 97(6) of the Act provides that the Tribunal has the power to refuse to accept any evidence or submission that is irrelevant or repetitious. I consider that Mr Angelo’s submission that the use of the word “shall” in s 93(1) of the Act permits him to call as much evidence as he wishes is not correct. The Tribunal remains entitled to manage its procedure and must do so to achieve its purpose of providing for the fair and expeditious resolution of disputes. I consider that the Tribunal properly utilised the powers in these sections in its dealings with Mr Angelo. I also observe that to my mind the status of the 2015 Tenancy Agreement, its relevance and potential legal implications have been well ventilated before the Tribunal.
62 David Grinlinton Residential Tenancies—Law and Practice (4th ed, Lexis Nexis, Wellington, 2012) at 280.
[79] I find that Mr Angelo has not established that the District Court Judge’s decision was erroneous in point of law. The District Court Judge took the correct legal approach to determining Mr Angelo’s appeal.
[80] Like the District Court Judge, I conclude that Mr Angelo, unhappy at the prospect of having to move from the Property, wishes to reargue his case.
[81] It may be worth emphasising then, that the Tribunal has found that Mr Angelo has no right to occupy the Property granted by any person having lawful authority to grant that right. To repeat what the Tribunal said:63
I do not find Mr Angelo has proven a right to occupy exists for him. Events and variations in whatever arrangements were made since any 1 March 2015 agreement are considered to have superseded it. If I accept Mr Angelo’s position that the tenancy formed later in April 2016 that is further grounds to put aside the 1 March 2015 agreement as presented. I do not consider a lack [of] any written termination of that 1 March agreement gives it standing today. Regardless, even if I am wrong, any such right has been revoked.
[82] It is this finding that is truly at the heart of Mr Angelo’s concerns. The essential point is that whatever has occurred in the past, the Trust no longer wishes to allow Mr Angelo to occupy the Property. The Tribunal has concluded that the Trust is entitled to hold this view and has made a possession order for the Property in favour of the Trust. As a result, Mr Angelo must leave the Property, as the Trust seeks.
Result
[83]The appeal is dismissed.
[84] At hearing of this appeal, I extended the stay of enforcement of the Tribunal’s Possession decision until this judgment was delivered. The stay of enforcement is now lifted. I direct the Trust to ensure that Mr Angelo receives reasonable time to move from the Property.
63 The Possession decision, above n 30, at [34].
Costs
[85] The Trust seeks indemnity costs in relation to this appeal. This is on the basis that the Trust has previously communicated with Mr Angelo about its intention to seek indemnity costs in its email dated 7 March 2022.
[86] Mr Angelo did not address the Court in relation to costs. In order to ensure Mr Angelo can clearly understand the application for costs, I invite the Trust to file submissions in relation to costs (of no longer than five pages) within 10 working days of the date of this judgment.
[87] I invite Mr Angelo to respond to that application by the Trust, should he wish to do so, within 10 working days of receipt of the Trust’s submissions, with submissions that are no longer than five pages.
[88]There will be no hearing on costs. I will make a decision on the papers.
McQueen J
Solicitors:
Fletcher Vautier Moore, Nelson for Respondents
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