Cavanagh v Jackson

[2025] NZHC 1491

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-623

[2025] NZHC 1491

UNDER

Residential Tenancies Act 1986

BETWEEN

MARIA ELENA JEAN CAVANAGH

Appellant

AND

MARGARET CATHERINE JACKSON

Respondent

Hearing:

4 June 2025

Appearances:

Appellant in Person

No appearance by or for the Respondent

Judgment:

9 June 2025

JUDGMENT OF MANDER J

This judgment was delivered by me on 9 June 2025 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

CAVANAGH v JACKSON [2025] NZHC 1491 [9 June 2025]

Introduction

[1]    Ms Cavanagh seeks to appeal a decision of the Christchurch District Court1 declining her appeal from the Tenancy Tribunal’s (the Tribunal) determination that it had no jurisdiction to hear her application.2 The Tribunal held the Residential Tenancies Act 1986 (the Act) did not apply because the premises, a residential dwelling situated in Woolston (the property), was used as Mrs Jackson’s, the landlord’s, place of residence during Ms Cavanagh’s tenancy. This precluded the Tribunal’s jurisdiction.3

Factual background

[2]    Before turning to consider the parties’ positions, it is necessary to set out some background.

[3]    Mrs Jackson, who is now in her 80s, had owned and lived in the property for many years with her husband. On his death, the premises were transferred to a family trust. The trust subsequently sold the property to one of Mrs Jackson’s sons, who subsequently transferred it to some family friends. The premises were transferred on the basis that Mrs Jackson would be permitted to continue to occupy the premises during her life.

[4]    The premises included three bedrooms. Mrs Jackson used one of the bedrooms which had an ensuite. She had let one of the other bedrooms to a male who was seldom at the property. She advertised the third bedroom on TradeMe as “Woolston 1 bedroom $110 pw.”  On 21 November 2019, Ms Cavanagh responded to the advertisement stating: “I could be interested in the room. I am a full-time mature (in my 40s) student at UC”.

[5]    There was email correspondence in early  December  2019,  arranging  for Ms Cavanagh to view the room. On 12 December 2019, Mrs Jackson sent an email to Ms Cavanagh stating she had decided to let “just the big room.” This was a reference

1      Cavanagh v Jackson [2024] NZDC 26207.

2      Cavanagh v Jackson [2024] NZTT 4701869.

3      Residential Tenancies Act 1986, s 5(1)(n).

to the fact the room Mrs Jackson originally intended to let was the smaller of the bedrooms. Mrs Jackson also stated: “Do know if U get [in] a pickle re finding accommodation you are welcome to stay as U get sorted.”

[6]    Ms Cavanagh and the other tenant shared a bathroom and they, together with Mrs Jackson, shared the kitchen and laundry facilities. Ms Cavanagh and the other tenant could use the living room as well, although Ms Cavanagh seldom did so. That said, the District Court accepted that Ms Cavanagh sometimes ate dinner in the living room to keep Mrs Jackson company. The Court found that apart from Mrs Jackson’s bedroom/ensuite, Ms Cavanagh and the other tenant had the use of all the premises.

[7]    Ms Cavanagh’s tenancy started on 29 December 2019 and ended on 29 April 2020. It seems that, in early 2020, Ms Cavanagh went to Timaru for the COVID-19 lockdown to reside in an environment she considered better suited her health needs. In this regard, Ms Cavanagh had concerns that Mrs Jackson was not abiding by the public health measures that were in force at the time.

[8]    Relations between the parties deteriorated when Ms Cavanagh arrived back at the property to collect her belongings. Ultimately, the police became involved, and Ms Cavanagh was arrested and charged with trespass. It appears these charges were later dismissed.

[9]    Ms Cavanagh sought compensation and exemplary damages from Mrs Jackson in the Tribunal.

Tenancy Tribunal proceedings

[10]   The Tribunal, in its decision of 26 February 2024, observed that the Act applies to every tenancy for residential purposes, except as specifically provided.4 One such statutory exception, which is the focus of these proceedings, is s 5(1)(n). It provides:

5        Act excluded in certain cases

(1)       This Act shall not apply in the following cases:

…

4      Section 4.

(n)where the premises, not being a boarding house, continue to  be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family:

The adjudicator noted that the onus was on Mrs Jackson to establish the Act did not apply and identified a number of considerations that were relevant to determining the nature of the arrangement between Mrs Jackson and Ms Cavanagh. These included:

(a)The extent of any shared living facilities (such as cooking, bathroom, living room and laundry);

(b)The extent of any free and unimpeded access by the tenant to premises occupied mainly by the landlord; and

(c)The nature of the tenant’s area and whether it was fully or partly self- contained or exclusive.

[11]   The Tribunal considered the premises were used by Mrs Jackson during the tenancy, principally as her place of residence, and that she simply took in two boarders or flatmates to help with her costs. They all shared facilities, and each had exclusive use of their bedrooms. The bedrooms were not separate self-contained areas.

[12]   The Tribunal held that Mrs Jackson had established on the balance of probabilities that the tenancy between her and Ms Cavanagh was an excluded residential tenancy under s 5(1)(n) of the Act.

District Court appeal

[13]   Judge Kellar identified there to be no issue the premises were “residential premises” and that a tenancy existed between Mrs Jackson and Ms Cavanagh, with the latter having the right to occupy the premises in consideration for rent. Nor was there any issue there was a “tenancy agreement” between Mrs Jackson and Ms Cavanagh. The only issue was whether the Act was excluded by s 5(1)(n) of the Act.

[14]   In determining that question, the Judge observed that the issue focused on whether the premises were principally occupied by Mrs Jackson in her capacity as landlord.5 The Act defines landlord in relation to any residential premises that are the subject of a tenancy agreement as meaning “the grantor of a tenancy of the premises under the agreement”.6

[15]   The Judge held that Mrs Jackson, while a tenant of the property herself, by virtue of her paying rent to the property’s owner under an arrangement which permitted her to continue to occupy the property, was the landlord of the premises vis- a-vis Ms Cavanagh, because she was the “grantor of the tenancy of the premises”. The Judge’s reasoning in respect of that conclusion was summarised as follows:7

The relevant considerations are that Ms Cavanagh paid rent to Mrs Jackson who, in turn, paid rent to the owners of the premises. Further, Ms Cavanagh occupied the premises as from 29 December 2019 pursuant to an arrangement between the two of them. The owner of the premises was not involved in the tenancy agreement between Mrs Jackson and Ms Cavanagh. …

The appeal

Appellant’s argument

[16]   Ms Cavanagh accepts that Mrs Jackson comes within the definition of “landlord” as it is defined in the Act. However, she argues that because she only rented the bedroom, s  5(1)(n)  of  the  Act  does  not  apply.  In  emphasising  this  point, Ms Cavanagh submitted that she did not share her bedroom with Mrs Jackson. She further detailed what spaces and appliances, such as the fridge, were shared by the premises’ occupants, and which were separate. Ms Cavanagh’s argument was best encapsulated in her notice of appeal:

The Tenancy Tribunal and the District Court have relied on s 5(1)(n) as the reason for this tenancy matter to be outside of the Tenancy Tribunal jurisdiction. However, I would argue that the premises in its entirety was rented by [Mrs Jackson]. [Mrs Jackson] subleased the two back bedrooms as separate premises. Each tenant had their own premises and did not share them with the sublease landlord / [Mrs Jackson].

5 At [14].

6      Residential Tenancies Act, s 2, definition of “landlord”.

7 At [17].

[17]   Ms Cavanagh notes that she “did not have an issue” with Mrs Jackson manifesting her authority over rooms other than the bedroom by, she says, “banning” Ms Cavanagh from such rooms, and allowing other people access to the premises when Mrs Jackson herself was not home from time to time.8 Ms Cavanagh submitted that Mrs Jackson exerted dominion over the property by leaving handwritten reprimanding instructions on the bathroom wall regarding the toilet seat, and what she described as “consequences had the tenants been in her ward.”

[18]   It was submitted the lounge area where Mrs Jackson spent time with her grandchild was also “bookmarked” as the landlord's premises, and that arrangements regarding the gas heating of that room was paid for separately by Mrs Jackson and not included in the “shared utilities cost” paid by all the occupants. Ms Cavanagh relies on the separate living arrangements to highlight the degree of independence between the habitants. She also referred to the Human Rights Act 1993 and art 25 of the Universal Declaration of Human Rights 1948 in terms of the right to adequate housing, although those instruments’ application to the confined issue raised on the appeal is not altogether clear.

Respondent’s argument

[19]   Mr Jackson, who was granted dispensation to represent his mother on the appeal,9 submitted in his written submissions that Ms Cavanagh had failed to identify any error of law made by the District Court Judge. He argued that Ms Cavanagh, through the means of the appeal, was seeking to relitigate the merits of her original claim that has already been heard and dealt with by the Tribunal and the District Court. Mr Jackson submitted the relationship between Ms Cavanagh and Mrs Jackson was akin to  a  flat  sharing  arrangement,  whereby  the  premises  were  shared  with  Mrs Jackson, such that s 5(1)(n) of the Act applied, and that no error of law has been made. He submitted that much of the argument made by Ms Cavanagh, namely that

8      I note that Ms Cavanagh’s assertion that Mrs Jackson banned her from certain areas of the premises was not taken as fact in the Tenancy Tribunal’s determination, thus is not accepted for the purposes of this appeal.

9 Associate Judge Paulsen by way of minute ordered, under s 27(1)(b)(ii) of the Lawyers and Conveyancers Act 2006, that Mr Jackson be allowed to represent Mrs Jackson in this appeal— Cavanagh v Jackson HC Christchurch CIV-2024-409-623, 5 February 2025 at [2].

people unknown to her visited the property with Mrs Jackson’s permission, is of no relevance.

Principles on appeal

[20]   A second appeal to this Court is limited to questions of law and Ms Cavanagh may only bring an appeal on that limited basis.10 This is not a general appeal, and it is not this Court’s role to rehear the case or to undertake an “on the merits” consideration of whether the District Court’s decision or factual findings were correct.11 The more limited role of a Court when considering an appeal on a question of law was explained by the Supreme Court in Bryson v Three Foot Six Ltd as follows:12

[24]      Appealable questions of law may nevertheless arise from the reasoning of the Court on the way to its ultimate conclusion. If the Court were, for example, to misinterpret … the section, … that would certainly be an error of law which could be corrected on appeal, …

[25]      An appeal cannot however be said to be on a question of law where the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding court, unless it is clearly insupportable.

[26]      An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”. …

(footnotes omitted)

[21]   This Court’s task is to consider whether the District Court has misinterpreted or misapplied the statutory provisions relied on to reach its decision under the Act and,

10     Residential Tenancies Act, s 119(1).

11     As is the Court’s role on a general appeal—see Austin Nichols & Co Inc v Stitchting Lodestar

[2007] NZSC 103, [2008] 2 NZLR 141.

12     Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.

if not, whether what has been decided is so misconceived that it amounts to an unlawful decision.13

Analysis

[22]   Ms Cavanagh’s appeal tended to focus on the factual circumstances of her tenancy and did not specifically identify how the decision of the District Court was erroneous in point of law. However, I proceed on the basis that it is Ms Cavanagh’s submission that the District Court erred in finding the Tribunal had no jurisdiction by failing to take into account that “the premises” Ms Cavanagh rented was the bedroom, not the property as a whole, and that, in terms of s 5(1)(n), Mrs Jackson, as landlord, was not using the rented premises (the bedroom) as a place of residence, as she did not reside in the room that Ms Cavanagh occupied and rented from Mrs Jackson.

[23]   Ms Cavanagh’s submission can be understood as the District Court having misapplied s 5(1)(n) because of its misapprehension as to the meaning of “premises” set out in s 2 of the Act, or that the Court’s decision is so misconceived that it represents an  unlawful   decision.14   The   essence  of  this  appeal,   therefore,  is   whether   Ms Cavanagh’s bedroom  constitutes  the  “premises”  at  issue for the  purposes  of  s 5(1)(n), or is to be interpreted as including the wider dwelling.15

[24]“Premises” is defined in the Act as follows:

2        Interpretation

(1)In this Act, unless the context otherwise requires,—

premises includes (other than in relation to a boarding house tenancy, in which case the definition in section 66B applies)—

(a)any part of any premises; and

(b)any land and appurtenances, other than facilities; and

13 Huffman v Cotter [2025] NZHC 232 at [34].

14 See Anderson v FM Custodians Ltd [2013] NZHC 2423, (2013) 15 NZCPR 123 at [32].

15 My sense is that Ms Cavanagh’s submission, which takes on a meaning of “premises” that suggests her use of the other rooms in the house was minimal, was not pursued with the same vigour in the Tenancy Tribunal and District Court.

(c)any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land.16

[25]   The operation of s 5(1)(n) of the Act generally involves a mixed question of law and fact.17 In Harding v Schellevis, a case that also concerned the interpretation of s 5(1)(n), the appellant and her family owned a two-level house. They generally occupied the upper level, which comprised four bedrooms, a kitchen, bathrooms and living area. The lower level had a living room, laundry and garage. There was also a “granny flat” on the lower level, comprising two bedrooms, a kitchenette, bathroom, laundry and living room that was, at various times, occupied by the respondents. The question for the Court was the extent of the premises that were subject to the tenancy— whether it was limited to the granny flat or extended to the family home (including the granny flat).

[26]   This Court upheld the decision of the Tenancy Tribunal and District Court, that the relevant premises were the self-contained granny flat. Walker J held:18

… the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.

[27]   Harding v Schellevis stands in contradistinction to the circumstances of the present case. Notwithstanding the controversy between the parties regarding the degree of separation and independence from the wider property that Ms Cavanagh maintains confined her tenancy to the bedroom, the living arrangements were almost the converse of those that weighed strongly on this Court in Harding v Schellevis to conclude the granny flat represented a distinct unit within the property. In contrast, I do not consider Ms Cavanagh’s bedroom could be described as self-contained.

16     See also Kahi v Lucas HC Auckland HC 81/96, 23 September 1996 at 8.

17     Harding v Schellevis [2021] NZHC 1265 at [5].

18 At [40].

[28]   Based on the District Court’s accepted findings of fact, I am unable to discern any error in the Judge’s analysis regarding the nature of the rented premises:19

Each of Mrs Jackson, Ms Cavanagh and the male tenant were able to share the living facilities such as cooking, bathroom (except Mrs Jackson’s ensuite) living room and laundry. Aside from Mrs Jackson’s bedroom Ms Cavanagh and the other tenant had free and unimpeded access to premises occupied by Mrs Jackson. Further, Ms Cavanagh’s bedroom and the bedrooms of the male tenant were not self-contained. The three of them, Mrs Jackson, Ms Cavanagh and the male tenant were in a cooperative arrangement in which they were on the same footing in that they had exclusive occupation of their own room and shared use and occupation of common areas such as a kitchen.

(emphasis added)

[29]   As discussed in the Tribunal’s determination, the arrangement between Ms Cavanagh and Mrs Jackson was for all practical purposes akin to a flatting situation. Mrs Jackson (by some arrangement the details of which are not before this Court) leased the Woolston property from its owner. There was no prohibition on Mrs Jackson renting out spare rooms to earn some income. Mrs Jackson let a room to Ms Cavanagh. In so doing, as is accepted on the appeal, Mrs Jackson became a “landlord”, as that term is defined under the Act.

[30]   Ms Cavanagh had free and unimpeded access to the common areas of the property. While her tenancy granted her exclusive use of her allocated room, it also provided her with a licence to access and use other parts of the premises, including the kitchen, living room, bathroom, and it would appear generally the whole property save for the other tenant’s room and Mrs Jackson’s bedroom and ensuite which, like Ms Cavanagh’s own room, was her private preserve.

[31]   I cannot accept Ms Cavanagh’s submission that the term “premises” can be construed as being limited to her own room which provided few facilities for habitation beyond sleeping, storage and privacy. In oral submissions, Ms Cavanagh advised that she had her own television set in her bedroom and a rice cooker and slow cooker that she also used there. However, while she chose to spend most of her time in her bedroom, she accepted she had access to the kitchen, bathroom and laundry areas, and parked her vehicle on the property. Access to those facilities reflect that the

19 At [17].

tenancy included shared or common areas that enabled the parties to live together in the same residence.

[32]   Ms Cavanagh sought to place some reliance on a decision of the District Court, in Musson v Dobrisek, where the dwelling comprised nine bedrooms, one of which was occupied by the landlord.20 However, that determination, which was not focused on the definition of the term “premises”, tends to detract rather than assist her argument. In that case it was held that s 5(1)(n) did not apply because the premises were not used principally as a the landlord’s place of residence. Judge Broadmore highlighted that the word “principally” refers to the main use of the premises. That begs the question raised in the present case as to what constitutes the “premises”? However, as observed by the Judge in Musson v Dobrisek, the intention of s 5(1)(n) appears to be to cover the situation of an owner or tenant of a house letting out a bedroom or a bedsitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord.21 On Ms Cavanagh’s own argument that was the situation that prevailed at the Woolston property.

Conclusion

[33]   I consider the premises rented by Ms Cavanagh extended to other parts of the dwelling that continued to be used during Ms Cavanagh’s tenancy principally as a place of residence by Mrs Jackson. It follows that the Judge’s conclusion that s 5(1)(n) applied to exclude the application of the Act, which in large part rested on factual findings that are not amenable to a further appeal, must remain undisturbed. No other potential error of law emerges from Ms Cavanagh’s appeal regarding the District Court’s decision.

Result

[34]The appeal is dismissed.

20     Musson v Dobrisek DC Lower Hutt CIV-2006-032-36, 5 May 2006.

21 At [41].