Cook v Housing New Zealand Corporation

[2014] NZHC 683

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND  REGISTRY

CIV 2014-404-000453 [2014] NZHC 683

BETWEEN  DESMOND COOK Applicant

ANDHOUSING NEW ZEALAND CORPORATION

Respondent

Hearing:                   1 April 2014

Appearances:           D Cook (In Person)

C P Paterson for Respondent

Judgment:                4 April 2014

JUDGMENT OF WHATA J

This judgment was delivered by me on 4 April 2014 March 2014 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date………………………………….

COOK v HOUSING NEW ZEALAND CORPORATION [2014] NZHC 683 [4 April 2014]

[1]      Desmond Cook is a tenant in a housing complex owned by Housing New

Zealand Corporation (“HNZ”).  He complains that HNZ allowed another tenant to interfere with the quiet enjoyment of his tenancy.  He took this complaint, together

with other complaints, to the Tenancy Tribunal.1

The Tribunal found that HNZ had

not breached its obligations to Mr Cook, though it did require HNZ to reimburse him for monies he had spent on mowing the lawns.

[2]      Mr Cook appealed to the District Court on the basis, among other things, that the Adjudicator did not have regard to evidence which he says supported his position

and got it wrong in terms of the amount payable for the lawn mowing.

[3]      The District Court rejected Mr Cook’s appeal, concluding that the Tribunal properly had regard to all available evidence.

[4]      Mr Cook now seeks leave to appeal to this Court.  His application for leave was out of time, but sensibly, HNZ does not now oppose leave to appeal on that basis. I have also decided to assess and resolve the merits of the appeal.

Grounds for appeal

[5]      I understand that Mr Cook raises the following key points for the purposes of his appeal:

(a)      The Adjudicator and the Judge failed to have regard to  evidence, including police reports, supporting his claims of harassment by a HNZ tenant;

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

neighbour;

1      Report of Tenancy Tribunal, Auckland, Application Number: 12/03115/AK, 7 May 2013.

(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.

Jurisdiction

[6]      Section 119 of the Residential Tenancies Act 1986 provides for appeals to this Court on questions of law only.  If a valid question of law arises, then it may grant leave to appeal out of time if it is in the interests of justice to do so.2

[7]      Mr Cook’s essential concern is that key evidence was not taken into account either by the Adjudicator and then by the Judge.  There is then the related point that the conclusions reached by the Adjudicator and then the Judge were simply not available to them on the evidence.

[8]      While these concerns could be said to constitute errors of law, I have reached the view that there is no proper foundation for them.

[9]      I propose to deal in turn with each of the key concerns raised.

Failure to have regard to police reports

[10]     Mr Cook believes that HNZ did not properly respond to his concerns about another HNZ tenant. Problematically for Mr Cook, the Adjudicator did not accept that the conduct of the HNZ tenant was as bad as Mr Cook said it was, and that in any event found that HNZ took reasonable steps to respond to his complaints.  Mr

Cook contends however that the Adjudicator must have failed to have regard to the

2      My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518,

police reports referred to by him in his evidence, and that this error was repeated by the Judge.

[11]     As Ms Paterson has pointed out, Mr Cook’s contentions are not consistent with the record of the Adjudicator’s decision. The Adjudicator’s decision records:

The  trespass  notices  and  police  complaints:

Mr  Cook  contends  that  the

trespass notices he has issued and his complaints to Police prove a problem. That is not the case.   One does not have to prove a problem to issue a trespass notice, and the issuing of a trespass notice does not prove that someone else has done something wrong.

Likewise the police complaints do not prove that the person complained about has done something wrong.  Importantly the police were not able to proceed with the complaints for lack of evidence.

[12]     There  is  nothing  obviously  wrong  with  the  observation  made  by  the Adjudicator.  Quite plainly she had regard to the police reports but dismissed them for the purposes of her findings.  To the extent that the Judge on appeal did not have regard to the police reports, which is not accepted, the point is really moot.   The Adjudicator plainly turned her mind to them.

Complaints by other tenants and neighbours evidence

[13]     Mr  Cook  submitted  to  the  District  Court  that  the  Adjudicator  wrongly observed that there were no complaints from other tenants and disregarded evidence from a neighbour Mr Kuki, that supported his claims about the tenant’s behaviour.  I accept that parts of the Adjudicator’s decision suggest that there were no complaints from other tenants, while there are other parts of the same decision that suggest that there were comments made by tenants that supported Mr Cook’s claims.  There was also evidence from the neighbour, Mr Kuki, which supported Mr Cook’s complaints about the tenant.   Mr Cook also says that a representative of HNZ confirmed that there had been other complaints, especially from the tenants at Units 3 and 4.

[14]     I reject Mr Cook’s concerns.  Mr Cook has focussed on isolated passages in the Adjudicator’s decision rather than reading the decision as a whole.  The decision records that interviews were undertaken with other tenants in the complex and that these interviews revealed some support for Mr Cook’s contention.  Other parts of the

decision, however, record that there were no complaints made by these tenants. The statements are not mutually exclusive and when the decision is read as a whole it is clear that the Adjudicator had regard to all relevant evidence concerning the tenants. As to Mr Kuki’s evidence, Ms Paterson helpfully highlighted to me that Mr Kuki in fact noted at the hearing that the actions of Mr Cook’s nemesis did not bother him. That provides important colour or context to Mr Kuki’s otherwise corroborative evidence.

Failure to have regard to evidence about cost of mowing

[15]     Mr Cook took it upon himself to attend to the mowing of the lawns at the complex.   It is common ground that HNZ was required to mow the lawns.   The Adjudicator accepted that Mr Cook should be reimbursed for the reasonable cost incurred by him for the mowing of the lawns.  The Adjudicator fixed that at $20 per two weeks and awarded him a sum of $1,200.

[16]     Mr Cook was not satisfied with this on the basis in fact that he had paid $30 to his neighbour, Mr Kuki, to undertake the mowing.  He took this aspect on appeal to the District Court and he says he put in front of the District Court Judge a quote from a Tony’s Lawn Mowers to the effect that the cost of mowing the lawns was $30 per fortnight.

[17]     It is not entirely clear from the decision that Tony’s quote was either placed before the Court and/or considered by the Court.  However, the judgment notes the following:3

[8]       Mr  Cook  wanted  the  full  payment  of  $1,820.00  for  the  lawn mowing.  He had obtained a quote from Jim’s Mowing although I could not find that on the Court file.

[18]     The Court then concludes in relation to the lawn mowing issue:

[19]      The Tribunal came to the $1,200.00 figure by reasoning that the 60 mows paid for by Mr Cook saved the Corporation the cost of having the lawns mowed over the period of time.  Although the neighbour said he was happy to do the work for free, the Adjudicator accepted that it was not

3      Cook v Housing New Zealand Corporation DC Auckland CIV-2013-004-000803, 19 December

appropriate or reasonable for Mr Cook to expect the neighbour to mow the lawn for nothing.   Mr Cook offered $30.00 per fortnight which the Adjudicator found was high for the area which was mowed.  The $20.00 per mow amount was an appropriate sum.

[20]      Given the circumstances whereby the neighbour was prepared to do the mowing for nothing, it was reasonable for the Adjudicator to reach a sum that fitted the task. This aspect of the Tribunal’s decision is upheld.

[19]     It is unclear why the Judge rejected the evidence from “Jim’s Mowing” and it is unfortunate that a copy of the relevant quote could not be located on the Court file. Nevertheless, I think that the Judge did have regard to evidence of a quote but nevertheless formed a view, available to her as part of her evaluative exercise, that

$20 remained a reasonable sum for the payment of the lawn mowing.

[20]     Ms Paterson also supplemented this Court’s record of what occurred with a summary of the evidence offered to the Adjudicator on the costs of mowing the lawn.  It appears that a representative of HNZ obtained an on-line quote from Green Acres to the effect that the cost for mowing the lawns was $20.  I have to say that

this evidence is hardly compelling on its face, but nevertheless, given the latitude

afforded  to  litigants  before  the  Tenancy  Tribunal,4

it  was  evidence  that  the

Adjudicator could take into account in forming an assessment as to the reasonable cost.

[21]     I therefore reject this ground for appeal as having a proper basis.

Implicit bias

[22]     Mr Cook complains that the Adjudicator and then the Judge were prejudiced towards him because he was a Maori with facial tattoos.  He says this explains why the police reports,  the evidence of complaints from other tenants, corroborating evidence from a neighbour, and the quote, were not sufficient to prove his claims.

[23]     There is  nothing on  the record  to  suggest  actual  or apparent  bias.   The allegation really is one of implicit bias.  I am not sanguine about the potential effects of implicit bias, whether rooted in gender, ethnicity, culture, age or some other personal characteristic.   But having reviewed both the record of the Adjudicator’s

decision and the judgment of the District Court, and in light of the evidence highlighted to me by the parties, I am satisfied that the conclusions reached were fairly made.  Indeed, it is evident to me that the Adjudicator and then the Judge took into account a range of matters in assessing Mr Cook’s credibility.  For example, the Adjudicator had this to say:

During this period January 2012 – September 2012 Mr Cook’s behaviour towards Housing New Zealand staff was at times rude, abusive, and intimidating, all the things Mr Cook has complained about Mr Smith and his visitors.  During this period Mr Cook has also made exaggerated complaints about other issues and expected urgency about relatively minor matters.  For instance he contacted the Housing New Zealand Call Centre 5-10 times per day for a time about his carpet issues:  he claimed that there was dampness and rot. There is no rot in the carpet, and at the time he complained Housing New Zealand investigated and could not locate any dampness.

Mr Cook seems unaware of the unreasonableness of some of his behaviour. For instance at the hearing he explained an event where he was “not shouting merely talking at the top of my voice.” … the resulting impact for the staff member is that the staff member is being yelled at.

I raise Mr Cook’s behaviour during this time because it is understandable that Mr Cook’s unreasonable and exaggerated complaints, and his behaviour about other issues would impact on the credibility of his complaints about Unit 2, particularly when no other tenants were complaining about unit 2.

[24]     It can be seen therefore that the Adjudicator’s concerns with Mr Cook are transparently expressed and based on observable behaviour which has nothing to do with his ethnicity or facial tattoos.

[25]     As to the suggestion that the Judge may also have been harbouring some implicit bias, the judgment reveals a thorough consideration of the evidence before her and a careful review of the decision of the Adjudicator.   Ultimately the Judge observed that:5

The evidence supported that the respondent investigated Mr Cook’s concerns and concluded that the respondent had not failed to take all reasonable steps to ensure that other tenants not interfere with Mr Cook’s reasonable peace and privacy.

[26]     I accept that a different Judge might through the balancing exercise arrive at a different conclusion. But I am not at all satisfied that the conclusion reached was unreasonable or unfair.

[27]     I am bound to record that Mr Cook’s case was not helped by his grossly inappropriate reference to the Judge as “being a bit senile and old”.

Conclusion not available on the evidence

[28]     Mr Cook was particularly critical of the following concluding observation made by the Judge in her Honour’s decision:

[36]      The Tribunal’s decision is thorough and well reasoned.  It runs to 10 pages.  Under each of Mr Cook’s heads of claim there is a summary of the evidence  both  for  and  against  Mr  Cook’s  arguments  and  there  are appropriate reasoning processes leading to a decision on each.  Mr Cook was not able to point me to any evidence that was not properly considered, rather it was that he did not agree with the Adjudicator’s assessment.  At the outset of the hearing before me Mr Cook said that the Adjudicator did not listen to him and made wrong opinions and did not consider police reports.  I can find no evidence of any of those allegations raised by Mr Cook in the Tribunal’s decision.

[29]     Mr Cook submits that this conclusion must be wrong in light of the police reports including the fact that a tenant’s friend was arrested for trespass, the independent  evidence  that  supported  his  complaints  and  the  evidence  about  the quote.   He also noted, for example that the Tribunal could not possibly have considered the quote because it was only produced after the hearing before the Adjudicator.

[30]     Ms Paterson responded to this claim by observing that the police reports were plainly referred to (as recorded by the Adjudicator) and that the evidence of Mr Kuki was equivocal noting, for example, the transcript evidence that Mr Kuki observed that the neighbours subject to the complaint “did not bother him” and that there was evidence contradicting the quote.  Ms Paterson therefore submitted that rather than failing to take into account any relevant evidence and/or not having a proper basis for the conclusions reached, the conclusion was available to the Judge.

[31]     While I can appreciate Mr Cook’s sense of frustration about the fact that all key credibility findings appeared to be against him, I do not consider that he has established a proper basis for his contention that key and relevant evidence was not taken into account.

[32]     For the foregoing reasons therefore I reject the key concerns and grounds for appeal raised by Mr Cook.

Result

[33]     Application  for  leave  to  appeal  is  granted,  but  the  appeal  is  declined accordingly.

Costs

[34]     I do not encourage an application for costs.

Solicitors:

Meredith Connell, Auckland