Clements v Parktrust Limited - [2018] NZHC 133

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002512 [2018] NZHC 133

BETWEEN
MIRIAM CLEMENTS

Appellant

AND

PARKTRUST LIMITED Respondent

CIV-2017-404-002823

BETWEEN MIRIAM CLEMENTS Plaintiff
ANDPARKTRUST LIMITED Respondent

CIV-2018-404-000196

BETWEEN MIRIAM CLEMENTS Appellant
ANDPARKTRUST LIMITED Respondent

Hearing: 13 February 2018

Appearances:

Appellant in Person
M Singh for Respondent

Judgment:

14 February 2018

JUDGMENT OF VENNING J

This judgment was delivered by me on 14 February 2018 at 11.30 am, pursuant to Rule 11.5 of the
High Court Rules. Registrar/Deputy Registrar Date……………
Solicitors: Glaister Ennor, Auckland
Copy to: Appellant

CLEMENTS v PARKTRUST LIMITED [2018] NZHC 133 [14 February 2018]

[1] Ms Clements has filed three appeals with this Court. The first, CIV-2017-404-

002512, is an appeal against a decision of Judge G M Harrison in the District Court at

Auckland on 13 October 2017.1

[2] The second, CIV-2017-404-002823, is an appeal against a decision of

Judge G M Harrison in the District Court at Auckland on 2 November 2017.2

[3] The third, CIV-2018-404-000196, is an appeal against a decision of Judge

B Gibson in the District Court at Auckland dated 9 February 2018.3

Background

[4] The background can be shortly stated. At material times a Ms Karen Merrett was the tenant occupying the property known as 27A Park Avenue, Takapuna. The property was managed by Griffiths Holdings Limited on behalf of the landlord Parktrust Limited (Parktrust).

[5] On about 27 April 2017 Ms Merrett agreed that Ms Clements could occupy part of the premises comprising a bedroom, bathroom and balcony.

[6] On 23 May 2017 Parktrust gave a 90 day notice pursuant to s 51 of the

Residential Tenancies Act 1986 (the Act) to terminate the tenancy as at 24 August

2017.

[7] By the time the 90 day notice was issued unhappy differences had arisen between Ms Merrett and Ms Clements. Ms Clements filed an application with the Tenancy Tribunal claiming the 90 day notice was retaliatory. She also sought compensation and exemplary damages.

[8] Both Ms Merrett and Parktrust queried the jurisdiction of the Tribunal to hear

Ms Clements’ claim, on the basis she was a flatmate of Ms Merrett and not a tenant of

Ms Merrett.

1      Clements v Parktrust Limited [2017] NZDC 23241.
2      Clements v Griffiths DC Auckland CIV-2017-044-001460, 2 November 2017, Minute of Judge
Harrison.
3      Clements v Parktrust Limited [2018] NZDC 2208.

[9] In a decision delivered on 5 July 2017 the Tenancy Tribunal Adjudicator determined that the agreement between Ms Clements and Ms Merrett was a residential tenancy creating a sub-tenancy of part of the subject premises with Ms Merrett as landlord and Ms Clements as tenant.

[10] In a subsequent decision of 18 September 2017 a Tenancy Tribunal Adjudicator determined the termination notice was valid and granted Parktrust possession as of midnight 21 September 2017.

[11] Although Ms Merrett appealed the 5 July decision she subsequently discontinued her appeal on 21 September 2017. She also accepted the validity of the termination…

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.

Continue reading Clements v Parktrust Limited

Details

AGLC: Clements v Parktrust Limited [2018] NZHC 133
Case: [2018] NZHC 133
Decision Date: 14 February 2018

CaseChat Overview and Summary

Ms Miriam Clements has filed three appeals against decisions of Judge G M Harrison in the District Court at Auckland. The first appeal, CIV-2017-404-002512, was against a decision of the District Court on 13 October 2017. The second appeal, CIV-2017-404-002823, was against a decision of the District Court on 2 November 2017. The third appeal, CIV-2018-404-000196, was against a decision of the District Court on 9 February 2018. The issues arising from these appeals involved the interpretation of the Residential Tenancies Act 1986 and the timeliness of the appeals filed by Ms Clements.

Judge G M Harrison dismissed the appeal against the decision of the Tenancy Tribunal Adjudicator dated 18 September 2017 determining that the 90 day notice issued by Parktrust was valid and that it was entitled to a possession order of the premises as of 21 September 2017. Judge Harrison also dismissed Ms Clements’ application for a stay of proceedings pending the appeal, considering it an abuse of process as Ms Clements had already unsuccessfully applied to this High Court for a stay which had been declined. In the third decision, Judge B Gibson struck out Ms Clements’ appeal against the finding of the Tenancy Tribunal of 5 July 2017 that she was a sub-tenant of Ms Merrett, on the basis that the appeal was lodged outside the time provided for appeal by s 117(6) of the Act. The Court determined that the time period for bringing the appeal was mandatory and had expired.

The Court dismissed the appeal against the decision of Judge Harrison of 2 November 2017 as an abuse of process and also dismissed the appeal against the decision of Judge Gibson of 9 February 2018 on the basis that it was lodged outside the statutory time limit. The Court noted that Ms Clements was an undischarged bankrupt, which could impact her ability to pursue the proceeding. The Court adjourned the remaining appeal to allow Ms Clements to address the issue of her bankruptcy.

The Court reserved costs.

Orders