Cook v Housing New Zealand Corporation

[2014] NZCA 504

IN THE COURT OF APPEAL OF NEW ZEALAND

CA325/2014
[2014] NZCA 504

BETWEEN	DESMOND WILLIAM COOK Applicant
AND	HOUSING NEW ZEALAND CORPORATION Respondent

Hearing:	6 October 2014
Court:	Harrison, Wild and Goddard JJ
Counsel:	Applicant in person C P Paterson for Respondent
Judgment:	15 October 2014 at 10 am

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

1. Mr Cook applied pursuant to s 120 of the Residential Tenancies Act 1986 (RTA) for special leave to appeal to this Court against a judgment of Whata J given on 4 April 2014.[1]  Whata J refused Mr Cook leave to appeal on 6 June 2014.[2]

   [1]Cook v Housing New Zealand Corp [2014] NZHC 683.

   [2]Cook v Housing New Zealand Corp [2014] NZHC 1261.

2. 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.

3. The test therefore has a high threshold, requiring a question of law that is of such general or public importance that it deserves the benefit of a further decision, from this Court.  As has been emphasised on many occasions, it is not the function of this Court on a second or third tier appeal (such as this), to make any general correction of error.[3]

Appeal

[3]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

1. The specific grounds advanced by Mr Cook in support of his application for special leave to appeal are stated as:

   … a question of law in the respect that the Tenancy Tribunal judge followed by then the District Court Judge then the High Court Judge did not fully consider the evidence that I presented to the Court and therefore, made a decision based on hearsay rather than on actual evidence that had been provided by myself and then by my one and only witness …

2. As is immediately clear from the grounds as stated, the application is not founded on any question of law but is focused on decisions made on the facts. 

3. Mr Cook submitted that leave to appeal should nevertheless be granted on the grounds that a miscarriage of justice had occurred because the Tenancy Tribunal Adjudicator had not taken into account the evidence presented by him, or taken into account Mr Cook’s instructions to read all of the police reports, but instead had preferred the evidence provided by Housing New Zealand.  Mr Cook further submitted that the District Court Judge, Judge Cunningham, had not read the transcript of evidence from the Tenancy Tribunal hearing but had simply considered the decision of the Adjudicator.  He further submitted that Whata J in the High Court had followed suit in reaching his findings and that none of the Courts below had taken his evidence into consideration, or the evidence of his witness, Mr Kuki. 

4. Mr Cook also made reference to the fact that, prior to the Tenancy Tribunal hearing, Housing New Zealand had offered him $5,000 in full and final settlement of his claims, an offer he had declined to accept.  He adverted to this in his submissions to this Court, as an indication that Housing New Zealand had acknowledged that his claims were meritorious.  The issue of a pre‑trial “without prejudice” offer is not, however, a matter of any relevance to or impact on subsequent Court proceedings, or on the present application for special leave to appeal to this Court.

The Tenancy Tribunal decision

1. The claim before the Tenancy Tribunal was for lawn mowing costs, breach of quiet enjoyment, harassment, damage to Mr Cook’s car, and reimbursement of electricity costs.[4]  The Adjudicator found that Housing New Zealand had not breached its obligations, but that it did have to reimburse Mr Cook in the sum of $1200 for payments he had made to have an area of lawn mown, which the landlord was obliged to maintain.  In this regard, Mr Cook had paid his neighbour Mr Harry Kuki $1820 (at a rate of $30 per fortnight) for lawn mowing services he provided and which should have been provided by Housing New Zealand.  However, the Tenancy Tribunal Adjudicator found, based on a quote obtained by Housing New Zealand, that $20 fortnightly was a reasonable price to have paid for the necessary services, and ordered therefore that $1200 be paid. 

   [4]Cook v Housing New Zealand Corp NZTT Auckland 12/03115/AK, 7 May 2013.

2. In relation to the quiet enjoyment claim, Mr Cook claimed $40,000, plus $2000 exemplary damages, for breach of Housing New Zealand’s responsibility as landlord not to permit a breach of his right to quiet enjoyment.  This related to the behaviour of other tenants and their guests, and included complaints of noise and threatening and abusive behaviour.  Mr Cook provided police reports as evidence of these issues, some of which he included in the information he submitted in support of his application for special leave to this Court.  The Adjudicator traversed the evidence relevant to this claim, including evidence of a resolution of the issue by the Tenancy Manager at an earlier stage and evidence that later concerns had not in fact been reported.  The Adjudicator found that Housing New Zealand had not overall breached its responsibilities in this area.

3. The other claims, for harassment, damage to Mr Cook’s car, and for reimbursement of electricity costs were also dealt with comprehensively by the Adjudicator but have not been pursued in the present application for special leave.

Appeal to the District Court

1. Before Judge Cunningham  Mr Cook advanced a number of points on appeal, all relating to the alleged breaches of obligations by Housing New Zealand that had been argued before the Tenancy Tribunal.[5]  Judge Cunningham noted that Mr Cook was essentially challenging all of the findings of the Tribunal.  She further noted that, as appeals to the District Court are by way of re-hearing pursuant to s 117 of the RTA, Mr Cook was able to re-litigate all of the issues he had argued before the Tribunal.

   [5]Cook v Housing New Zealand Corp DC Auckland CIV-2013-004-803, 19 December 2013.

2. Judge Cunningham approached the issues accordingly and embarked upon a separate examination of each of the claims made by Mr Cook, including whether he should have been awarded full compensation for the cost of the lawn mowing at $30 per fortnight, rather than at $20 per fortnight.  In relation to that claim, Mr Cook had obtained a quote from Jim’s Mowing, which he said supported his claim of $30 per mow.  However, Judge Cunningham was unable to find the quote on the Court file. 

3. After carefully analysing each of Mr Cook’s claims and the findings of the Adjudicator in relation to them, Judge Cunningham reached the conclusion that:[6]

   … the Tribunal took into account all of the evidence presented by Mr Cook and other witnesses.  I was not persuaded by Mr Cook that the evidence supports any other outcome … than that reached by the Tribunal. 

The High Court judgment

[6]At [30].

1. The key points raised by Mr Cook before Whata J on appeal to the High Court were recorded by the Judge as:[7]

   (a)The Adjudicator and … Judge [Cunningham] failed to have regard to evidence, including police reports, supporting his claims of harassment by a [Housing New Zealand] tenant;

   (b)The Adjudicator and the Judge failed to have regard to evidence of complaints from other tenants and corroborating evidence from a neighbour;

   (c)The Judge failed to have regard to a quote supporting Mr Cook’s contention that the cost of the mowing was $30 per fortnight, not $20 per fortnight as found by the Adjudicator;

   (d)The Adjudicator and Judge were prejudiced towards him as a Maori with facial tattoos and thereby failed to properly take into account evidence in support of his concerns, including the above evidence;

   (e)Overall, the conclusions reached by the Judge were not available to the Judge on the evidence.

   [7]Cook v Housing New Zealand, above n 1, at [5].

2. Before embarking on the analytical exercise, Whata J noted that the appeal before him was on questions of law only.  He recorded Mr Cook’s essential concern as key evidence not being taken into account by either the Adjudicator or Judge Cunningham, and that the conclusions reached by those judicial officers were simply not available on the evidence.  While acknowledging that these concerns could be said to constitute errors of law, Judge Whata found there was in fact no proper foundation for the concerns, which he then dealt with on an individual basis as follows.

3. In dismissing the first point on appeal Whata J found that, while complaints by other tenants and Mr Kuki’s evidence provided some support for Mr Cook’s claim of harassment by the occupier and visitors to Unit 2, the Adjudicator had paid regard to their evidence and to Mr Kuki’s evidence, which was neutral on the point.  He said:[8]

   … Quite plainly [the Adjudicator] had regard to the police reports but dismissed them for the purposes of her findings.

   …

   … the Adjudicator had regard to all relevant evidence concerning the tenants.  ... Mr Kuki in fact noted at the hearing that the actions of Mr Cook’s nemesis did not bother him.

   [8]At [12] and [14].

4. Whata J also rejected the ground of appeal alleging failure by Judge Cunningham to have regard to relevant evidence about the cost of lawn mowing and held the Judge had paid regard to that evidence but nevertheless formed a view, as part of her evaluative exercise, that $20 remained a reasonable sum for payment for the lawn mowing. 

5. A further ground of implicit bias against Mr Cook on the part of both the Adjudicator and Judge Cunningham was also dismissed by Whata J. 

Application for special leave to appeal to this Court

1. The application for special leave to appeal to this Court was opposed by Housing New Zealand. 

2. All of the matters raised before this Court by Mr Cook as questions of law are in reality no more than attempts to have the factual issues already adjudicated upon by the Tenancy Tribunal, the District Court and the High Court revisited.  All of the matters are evidence-based and required findings of fact in the Tenancy Tribunal and the District Court.  The decisions in the lower jurisdictions were reviewed by Whata J in the High Court on appeal and, whilst conceding there has lately been some latitude in terms of what constitutes a point of law of general and public importance, Whata J found that Mr Cook was simply seeking to appeal merits-based decisions in each instance and rejected the assertion that either the Adjudicator or Judge Cunningham had failed to consider relevant evidence favourable to Mr Cook.  On the contrary, Whata J noted, the decisions of both the Tenancy Tribunal and the District Court established that the relevant information was considered and that the decisions in both jurisdictions were supported by the evidence.  There being no clear point of law arising, Whata J was satisfied there was no proper basis for granting leave to appeal to this Court.

3. In the hearing before us, Mr Cook did not raise any question of law, let alone one of sufficient importance to be submitted to this Court for decision.  Each of the matters of complaint is specific to Mr Cook’s situation and has been the subject of merit-based decision making.  No question of general or public importance arises.  Nor is there any other reason of any significance to indicate that special leave ought to be granted.

Conclusion

1. The application for special leave to appeal is dismissed.

Solicitors:
Meredith Connell, Auckland for Respondent