Douglas v Sutter Limited
[2018] NZHC 137
•14 February 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-000790 [2018] NZHC 137
BETWEEN PAUL DOUGLAS
Appellant
AND
SUTTER LIMITED Respondent
Hearing: 8 February 2018 Appearances:
Appellant in Person
J Canty (representing company) for RespondentJudgment:
14 February 2018
JUDGMENT OF VENNING J
This judgment was delivered by me on 14 February 2018 at 2.30 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Copy to: Appellant
Respondent
DOUGLAS v SUTTER LIMITED [2018] NZHC 137 [14 February 2018]
Introduction
[1] Paul Douglas appeals to this Court from a decision of the District Court.1
[2] In a judgment delivered on 28 August 2017 Judge A I M Tompkins dismissed Mr Douglas’ appeal from an earlier determination of the Tenancy Tribunal delivered on 15 March 2017. In its decision the Tenancy Tribunal:
(a) granted Sutter Limited (the Landlord) immediate possession of the premises at Flat 2, 82 Warwick Street, Wilton, Wellington 6012;
(b)dismissed Mr Douglas’ application to set aside the 90 day notice issued by the Landlord as retaliatory; and
(c) dismissed all other applications.
[3] The appeal to this Court is under s 119 of the Residential Tenancies Act 1986 (the Act). As such the appeal is restricted to an appeal on questions of law.
[4] Mr Douglas represents himself. A number of the issues Mr Douglas sought to raise on the appeal were factual issues, rather than questions of law.
Background
[5] To put the appeal in context I summarise the factual and procedural background. In part I rely on the helpful summary by Judge Tompkins.
[6] The dispute relates to a residential tenancy at Flat 2, 82 Warwick Street, Wilton, Wellington. The flat is one of a number in a block owned by the Landlord. The tenancy had commenced in mid-2014, as a fixed-term tenancy which was apparently renewed from time to time. In evidence there is a tenancy agreement for a fixed term
ending on 10 May 2016. But eventually the tenancy became a periodic tenancy. Mr
1 Douglas v Canty [2017] NZDC 17519.
Douglas was the tenant and Sutter Limited, trading as Sutter Holdings (which has been represented throughout by Mr Canty, a director of the company), was the Landlord.2
[7] A number of issues arose between Mr Douglas and the Landlord during the course of Mr Douglas’ tenancy of the property. At the conclusion of a Tenancy Tribunal hearing on 8 November 2016 the Adjudicator recorded that Mr Douglas had agreed to withdraw various applications he had made to the Tribunal and that the Landlord had agreed to arrange treatment of the exterior mould on the building. The Adjudicator also recorded that the parties had agreed that the Tenancy was to continue and the parties were to “make a fresh start”. At the same time the Landlord withdrew trespass notices relating to the remainder of the Landlord’s property associated with the other flats in the block.
[8] However, unfortunately further issues arose between the parties very shortly thereafter. On 29 November 2016 the Landlord served a 90 day notice under s 51(1)(d) of the Act on Mr Douglas. Mr Douglas challenged that notice and applied to the Tribunal for a declaration that it was a retaliatory notice under s 54 of the Act.
[9] The matter came before the Tribunal on 15 March 2017.3 The transcript of that particular hearing runs for some 93 pages. By the conclusion of the hearing the position was reached that Mr Douglas agreed to immediately move out of the property. The Adjudicator recorded:
(a) Sutter Limited, trading as Sutter Holdings, was granted possession of the premises immediately under s 64(1) of the Act;
(b)The application by Mr Douglas for a declaration that the 90 day notice should be set aside on the basis it was retaliatory was dismissed; and
(c) All other applications were dismissed.
2 In the District Court the respondent was noted as Mr Canty. It should have been Sutter Limited as the landlord and property owner.
3 Douglas v Canty TT-2017-407-1430-WN, 15 March 2017.
District Court decision
[10] In dismissing the appeal from that decision Judge Tompkins noted that the Tenancy Tribunal Adjudicator was correct in proceeding upon the basis that, given the initial fixed term tenancy had become a periodic tenancy, the Landlord could give a
90 day notice for a variety of reasons. There was ample evidentiary foundation for the Tenancy Tribunal Adjudicator’s conclusion that the 90 day notice was appropriately served and was not retaliatory.
[11] The Judge noted that towards the end of the hearing before the Tribunal Mr Douglas had voluntarily agreed the tenancy should terminate immediately and had handed over the key and made various arrangements to uplift a small amount of chattels remaining at the address. The Judge noted that while Mr Douglas might regret having made that concession the regret did not affect the substantive validity of what he chose to do. There was no basis or ground upon which his voluntary and immediate termination of the period of tenancy accepted by the landlord could be disturbed on appeal. The appeal was dismissed.
Further evidence
[12] Mr Douglas seeks to adduce further evidence on this appeal. The further evidence sought to be adduced is material that Mr Douglas has collated on a USB stick, including several video clips of what he says was evidence of one of the other tenants in the units harassing him in 2016 by repeatedly banging on his door. There are a number of other photographs and other documents on the USB stick. I declined Mr Douglas’ application to adduce further evidence on this appeal. Appeals under s 119 are to be dealt with in accordance with the High Court Rules. Rule 20.16 applies. Further evidence is only admitted on appeals to this Court if the evidence could not have been reasonably provided to the first Court and is cogent and likely to be material.4
[13] Where an appeal is on a question of law, as the present appeal is, the Court of
Appeal has said that there is no power to admit further evidence.5 In some limited
4 Telecom Corporation of New Zealand Ltd v Commerce Commission [1991] 2 NZLR 557 (CA).
5 Schier v Removal Review Authority [1999] 1 NZLR 703 (CA).
instances this Court has exercised its inherent jurisdiction to receive further evidence in such appeals but it will only do so in exceptional circumstances.6 There are no very special or exceptional reasons in the present case to permit the admission of the evidence which Mr Douglas seeks to admit. The proposed further evidence does not meet the cogency and materiality test. For those reasons I declined to accept and consider the further evidence.
[14] Mr Douglas also sought to attack Mr Canty’s credibility. He did so by reference to the transcript of the Tribunal and District Court hearings. He sought to give further evidence orally during the course of his submissions. That is not permissible on an appeal of this nature.
Scope of the appeal
[15] There is a further preliminary point relating to the jurisdiction of this Court on appeal. Mr Douglas referred to s 85 of the Act which provides:
85 Manner in which jurisdiction is to be exercised
(1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.
(2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
[16] He then referred to s 117(4) of the Act which confirms that:
(4) The provisions of section 85, with any necessary modifications, shall apply in respect of the hearing and determination by the District Court of an appeal brought under this section.
[17] On the basis of those provisions Mr Douglas submitted that on appeal from the District Court this Court had the powers of the District Court and could and should apply the broad approach as mandated by s 85 that was available to that Court under
s 117(4). With respect to that submission however, it ignores the clear statutory
6 Terrace Tower (NZ) Pty Ltd v Queenstown Lakes District Council [2001] 2 NZLR 388.
provision in s 119 which confirms that an appeal to this Court is on a question of law to be dealt with in accordance with the High Court Rules. While the powers of the Court on appeal under HCR 20.19 are broad, they do not in this case incorporate the provisions of s 85 of the Act given the direction under s 119 as to the form of the appeal.
Basis of the appeal
[18] As best as I can understand Mr Douglas’ appeal, he wishes to argue that the 90 day notice given by the landlord under s 51(1)(d) of the Act was invalid. First he argues s 51 did not apply because of the application of s 7. He argues both the Tribunal and the District Court Judge erred in considering that the Landlord could issue a notice to quit under s 51 of the Act.
[19] Mr Douglas’ argument relies on s 7 of the Act. Section 7 provides:
7 Short fixed-term tenancies
(1) Subject to subsection (2), nothing in sections 25 to 28 and 51 shall apply to a fixed-term tenancy of not more than 90 days if, before the commencement of the tenancy, the parties agree in writing that the tenancy will not be extended or renewed to give a total length of the term in excess of 90 days.
(2) Where such a tenancy is extended or renewed, whether once or more than once, with the result that the total length of the term exceeds 90 days, on the expiry of that period of 90 days the tenancy shall become subject to sections 25 to 28 and 51 (as well as all the other provisions).
(2A) The parties may not enter into a fixed-term tenancy of not more than
90 days for the purpose of using that tenancy as a trial-period for ascertaining the desirability of extending or renewing the tenancy.
(2B) The Tribunal may, on the application of a tenant or former tenant who is or who was a party to a fixed-term tenancy of not more than 90 days, order the extension or renewal of that tenancy on any terms that the Tribunal thinks just if the Tribunal is satisfied that—
(a) the tenancy was granted in breach of subsection (2A); and
(b) the proposed extension or renewal will not prejudice third parties who are not in any way involved in the breach.
(3) For the purposes of this section, the term fixed-term tenancy includes such a tenancy terminable by notice.
[20] Before the District Court Mr Douglas argued that Mr Canty gave a 90 day notice before the expiry of the period provided under s 7 so that, on Mr Douglas’ submission, the notice was not effective. They had reached an agreement on 8
November 2017 hearing that they would start afresh but in breach of that agreement the Landlord issued the 90 day notice on 29 November.
[21] Mr Douglas’ argument is misconceived. Section 7 applies to short fixed-term tenancies which are fixed-term tenancies of not more than 90 days. At the hearing on
8 November the parties acknowledged the tenancy between Mr Douglas and the Landlord was a periodic tenancy. It was not a fixed-term tenancy either short or long. Where s 7(2) refers to “such a tenancy” it is referring to a fixed term tenancy of not more than 90 days. Section 7 has no application to the present case.
[22] The only other issue which could possibly raise an issue of law is whether the notice to quit was a retaliatory notice. The Tenancy Tribunal Adjudicator rejected that submission after hearing from both Mr Douglas and Mr Canty. The District Court Judge dealt with it in his decision and concluded there was ample evidentiary foundation for the Adjudicator’s conclusion that the 90 day notice was appropriately served and was not retaliatory.
[23] To be retaliatory the notice must be given in response to a tenant asserting some right under the tenancy agreement or the Act. Section 54 provides:
54 Tribunal may declare retaliatory notice of no effect
(1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section
51 (or, in the case of a boarding house tenancy, section 66U), the
tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
(2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be
vexatious or frivolous to such an extent that the landlord was justified in giving the notice.
(3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.
[24] In Kerr v Woodman Judge Ongley upheld the Tribunal’s decision the notice was not retaliatory.7 In the course of his decision the Judge noted that the landlord had found the tenant was not a suitable tenant for the flat because he could not tolerate activities by other tenants which the landlord believed were unavoidable. The landlord believed she had to act as she was faced with the alternative of either having continuous disputes among tenants or otherwise bringing the tenancy to an end. In those circumstances the Judge was only required to decide whether the notice was retaliatory or whether it was given for genuine and fair reasons. As the Tribunal noted, in the present case the reasons that Mr Douglas articulated or considered the notice had been given for were:
• Mr Canty did not like Mr Douglas
• Another tenant in an adjacent flat (owned by Mr Canty) has assaulted
Mr Douglas in November 2016
•Mr Douglas had complained about bread being put on the path by another tenant and Mr Canty thought this was petty
• There had been a problem with rent in July 2016
•Mr Canty & his wife were concerned that Mr Douglas did not have power connected and used butane to cook and this could be a fire risk
• Mr Canty is trying to get him out to satisfy his wife and other tenants
•Mr Douglas says he moved another tenant’s rubbish bin from the other tenant’s door because it was a fire risk – this annoyed the other tenant
– Mr Douglas admits it was not his property and he had no right to move it
• Mr Canty thinks the tenant has mental health problems
•Mr Douglas asked another tenant if he was on drugs and that upset the other tenant.
[25] Even if one or more of those were the basis for the issue of the notice, it cannot be said that they were in retaliation to the exercise of any right under the tenancy asserted by Mr Douglas.
[26] Mr Douglas also argued that the notice to terminate under s 51 was defective. There is no basis for that submission and it is contrary to his concession before the Tenancy Tribunal. As recorded by the Tenancy Tribunal and the District Court, Mr Douglas had conceded that his tenancy had become a periodic tenancy and that he had received the notice. He accepted before the Court were it not for the retaliatory notice he would have to vacate the premises.
[27] It is now too late for Mr Douglas to withdraw those concessions. In Otago
Station Estates Ltd v Parker the Supreme Court confirmed that:8
… It is only rarely and with extreme caution that a second level appellate Court will allow a point to be raised which has been conceded below and it should not do so if there is any possibility that the outcome might have been affected if the point had been taken earlier.
It is too late for Mr Douglas on this appeal on a question of law to now seek to resile from concessions before the Tribunal and the District Court as to the validity of the notice and whether he had received the notice.
Result
[28] Mr Douglas has not been able to identify any arguable question of law. The
District Court Judge was plainly correct in his findings that there was ample evidence for the Tenancy Tribunal to have made the findings it did. The appeal is dismissed.
Venning J
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