Charan v Harkness

[2012] NZHC 482

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1339 [2012] NZHC 482

BETWEEN  SURESH CHARAN Appellant

ANDAARON ROBERTS HARKNESS Respondent

Hearing:         (on the papers) Appearances: Appellant in person

Respondent in person

Judgment:      21 March 2012

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 21 March 2012 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Parties:

Mr S Charan, Auckland

Mr A R Harkness, Auckland

CHARAN V HARKNESS HC AK CIV-2012-404-1339 [21 March 2012]

[1]      Mr Charan has appealed against a decision of Judge Blackie in the District Court at Manukau[1] declining an application by Mr Charan for stay of orders made by the Tenancy Tribunal on 8 March 2012.  In particular, Mr Charan sought stay of an order  terminating  his  tenancy of  Flat  3,  25 Wentworth Avenue,  Papatoetoe  and granting possession to Mr Harkness, the landlord.   Possession was to have been granted on 8 March 2012.

[1] Charan v Harkness DC Manukau, CIV-2012-092-284, 19 March 2012.

[2]      By that decision of the Tenancy Tribunal Mr Charan was also ordered to pay arrears of rent, and a small fee, totalling $1,003.29.  The net amount to be paid is

$403.29 after allowing for a bond of $500.

[3]      Mr Charan appealed to the District Court against the Tenancy Tribunal orders and applied for stay.  The stay application was initially dismissed by Judge Andree Wiltens on 9 March 2012.  There was an appeal to this Court from that decision on

13 March 2012. Wylie J adjourned the hearing of that appeal for reasons noted in his minute of 13 March 2012.

[4]      On 16 March 2012 in the District Court Judge Andree Wiltens granted stay until 10:0 am on 20 March 2012, with a hearing scheduled for 19 March.   As a consequence Mr Charan’s first appeal to this Court was effectively stayed.  See the minute of Allan J of 16 March 2012.

[5]      The matter came back to the District Court on 19 March.  The decision of Judge Blackie, from which Mr Charan now appeals, was delivered on that date. Judge Blackie declined to extend the stay granted by Judge Andree Wiltens.  This was a decision made after hearing from Mr Charan and Mr Harkness.

[6]      In declining to extend the stay the Judge did not address the relative strength or weakness of the appeal against the Tribunal’s substantive decision.  His primary reason was that the tenancy was about to expire in any event because of a notice under s 51(1) of the Residential Tenancies Act served by Mr Harkness on Mr Charan on  22  December  2011.    The  notice  expires  on  22  March  2012;  that  is  to  say,

tomorrow.

[7]      Mr Charan’s current appeal came before me yesterday at about the time that the temporary stay granted in the District Court was about to expire.  Because of the urgency, and the lack of time to address the issues, I issued a minute in which I recorded that there would be a temporary stay expiring at 2:00 pm on Wednesday 28

March 2012.  I also recorded I would issue a further minute later that day recording conditions upon which this temporary stay had been granted.   I directed that all relevant documents, including my minute, be served on Mr Harkness.

[8]      I was unable to deal with the matter yesterday.  In the meantime Mr Harkness forwarded a letter to the Court opposing Mr Charan’s application.  I am willing to treat this as a formal notice of opposition and submission.   The documents now before me are sufficient to enable determination of the appeal on the merits.

[9]      Mr Charan’s appeal is an appeal against exercise of a discretion by Judge Blackie.  The grounds on which the appeal against exercise of a discretion may be allowed are limited to the appellant’s establishing that there has been an error of principle, a failure to take into account relevant facts, taking into account irrelevant facts, or that the decision is plainly wrong.  I am not persuaded that there was any appealable error by Judge Blackie in exercising his discretion.   Accordingly, Mr Charan’s appeal is dismissed.

[10]     I also record that, even if I was persuaded that there was an appealable error in exercise of the discretion, and that there were grounds for stay, I would have granted stay on conditions.   This was noted in the minute I issued yesterday.   In particular,  I would have made the order for stay conditional upon Mr Charan’s immediately paying into Court the total arrears of $1,003.29 established by the Tribunal, together with any further arrears of rent accrued following that decision to be paid to Mr Harkness (which would appear at this date to be a sum of $600 if there has been no payment since the decision).  It would have been a further condition of continuing stay that Mr Charan pay Mr Harkness, on due date, the weekly sum due

for rent pending determination of the appeal in the District Court.

Woodhouse J