Cook v Housing New Zealand Corporation
[2018] NZCA 270
•24 July 2018 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA151/2018 [2018] NZCA 270 |
| BETWEEN | DESMOND WILLIAM COOK |
| AND | HOUSING NEW ZEALAND CORPORATION |
| Hearing: | 16 July 2018 |
Court: | Brown, Clifford and Gilbert JJ |
Counsel: | Applicant in person |
Judgment: | 24 July 2018 at 3.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time within which to file an application for special leave to appeal is granted.
BThe application for special leave to appeal is declined.
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REASONS OF THE COURT
(Given by Brown J)
Mr Cook is a Housing New Zealand Corp (HNZ) tenant. His claim against HNZ for interference with his peace, comfort and privacy by allowing his neighbours to use more than one carpark was dismissed by the Tenancy Tribunal.[1] His appeal to the District Court under s 117 of the Residential Tenancies Act 1986[2] (the Act) and his subsequent appeal under s 119 of the Act to the High Court[3] were dismissed. Costs were awarded against Mr Cook on both appeals.
[1]Cook v Housing New Zealand Corp TT Auckland 4064734, 9 February 2017.
[2]Cook v Housing New Zealand Corp [2017] NZDC 10420.
[3]Cook v Housing New Zealand Corp [2017] NZHC 2661.
Further appeals to this Court may only be granted with the leave of the High Court or (if that leave is refused) with special leave of this Court.[4] Mr Cook’s application to the High Court for leave to appeal having been dismissed[5] he now seeks special leave to appeal. Although his application was not filed within the 15 working day period specified in s 120(3) the respondent does not oppose an extension. In view of Mr Cook’s explanation for the delay we grant his application for an extension of time to apply for special leave to appeal.
[4]Residential Tenancies Act 1986, s 120.
[5]Cook v Housing New Zealand Corp [2017] NZHC 3202.
Section 120(3) provides that leave for a further appeal to this Court may only be granted if, in the opinion of the Court, the appeal involves a question of law that, because of its general or public importance or for any other reason, ought to be submitted to this Court for decision. This is a high threshold. It has been emphasised on many occasions that on a second appeal (or in this instance a third appeal) this Court is not engaged in the general correction of errors. Its primary function is to clarify the law. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been considered on a number of occasions.[6]
[6]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
Mr Cook’s application identified the following as a relevant question of law:
My Grounds for Appeal are on a question of law in the respect that the District Court Judge did not fully consider the evidence that I had presented to the Court and therefore, made a decision based on hearsay rather than on actual evidence. Had the evidence been regarded the decision would have been in my favour. The law was not applied to my case. A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain given set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted.
As the High Court judgment on the substantive appeal noted[7] Mr Cook’s complaint regarding the evidence in the District Court was two-fold: first that the Judge did not have regard to Mr Cook’s evidence and secondly that he refused to admit various further documents into evidence. However Katz J determined that the District Court Judge clearly took account of Mr Cook’s evidence and his submissions but was not persuaded by them. Moreover, that was a conclusion open to the District Court Judge and there was no error of law in doing so.[8] Nor did the Judge err, Katz J found, in law in declining to exercise his discretion to admit into evidence additional documents that Mr Cook wished to adduce, namely trespass notices which Mr Cook had issued to other tenants, statements made by Mr Cook to the police regarding other tenants, photographs and directions made by or notes of legal discussions before other District Court Judges.[9]
[7]Cook v Housing New Zealand Corp, above n 3, at [15]–[16].
[8]At [15].
[9]At [18].
Like Katz J, we do not consider that Mr Cook has identified any relevant error of law with reference to the evidence which the District Court Judge either considered or declined to admit, let alone one which is of the nature which s 120(3) requires.
It was apparent from Mr Cook’s oral submissions that he is aggrieved by the awards of costs made against him both in the District Court and in the High Court. While we doubt the efficacy or appropriateness of applications for awards of costs by HNZ against a beneficiary in the circumstances of Mr Cook, no error of law has been identified concerning the costs awards and hence this Court does not have jurisdiction under s 120 to revisit them.
HNZ did not seek costs on Mr Cook’s application to this Court. There is no order as to costs.
Result
The application for an extension of time within which to file an application for special leave to appeal is granted.
The application for special leave to appeal is declined.
Solicitors:
Meredith Connell, Auckland for Respondent
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