Emet v New Zealand Transport Agency
[2025] NZHC 1842
•7 July 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-028
[2025] NZHC 1842
IN THE MATTER OF the Human Rights Act 1993 BETWEEN
ATOM EMET
Appellant
AND
NEW ZEALAND TRANSPORT AGENCY
Respondent
Hearing: 16 May 2025 Appearances:
Appellant in Person
J P Papps and S V McMullan for Respondent
Judgment
7 July 2025
JUDGMENT OF CHURCHMAN J AND PANEL MEMBERS D HART AND S ISAACS
Introduction
[1] The appellant appeals a decision by the Human Rights Review Tribunal (Tribunal) dismissing his claim under the Human Rights Act 1993 (the Act).1
[2]The appellant seeks the following relief from the Court:
(a)reversal of the Human Rights Review Tribunal’s decision;
(b)a declaration that the respondent engaged in unlawful discrimination under the Act, or in the alternative, an order remitting the case to the
1 Emet v New Zealand Transport Agency [2023] NZHRRT 41.
EMET v NEW ZEALAND TRANSPORT AGENCY [2025] NZHC 1842 [7 July 2025]
Tribunal with instructions to reassess the evidence in light of the correct legal principles;
(c)an order for damages, including but not limited to pecuniary losses, non-pecuniary losses such as emotional harm, and damages where appropriate, or in the alternative, an order for the Tribunal to reassess damages;
(d)costs; and
(e)any other remedies as deemed appropriate by the Court.
Background
[3] In 2014, NZTA negotiated with the appellant and his then wife to acquire their property for a proposed roading project, the Wellington Mount Victoria Tunnel duplication. The parties did not reach an initial agreement as to the terms of sale.
[4] In June 2015, NZTA entered into negotiations with the appellant and his former wife, after a new valuation for the property was obtained. The Property Group (TPG) carried out the negotiations with the appellant, on behalf of NZTA. The appellant requested that the terms of sale allow for him to remain as a tenant in the property after it had been acquired. The proposed sale agreement provided for a tenancy at market rental to be granted to the appellant, subject to any pre-tenancy application forms and relevant checks.
[5] In August 2015, the appellant’s former wife notified NZTA that she agreed to the new price and that she supported any arrangement for the appellant to pay affordable rent. She noted that the appellant was on a benefit and that he was unable to afford a market rental.
[6] The appellant, through his solicitor, acknowledged the price offered for the property was reasonable on the condition that the appellant remained in the property with free or nominal rent on humanitarian grounds due to his financial and personal situation. The appellant noted he was recovering from a serious head injury and a
divorce. The appellant’s lawyer submitted that the appellant would not be able to continue living indefinitely at the property on his current income and that he was unable to find a comparable property suitable for himself and his ten-year-old son.
[7] In September 2015, NZTA refused the appellant’s request for a tenancy. NZTA stated it was “reluctant to offer a tenancy to him due to financial risk and uncertainty over ability to meet payments”. NZTA advised that while it did not formally require the property at that time it was still prepared to purchase it.
[8] The appellant then advised NZTA he accepted the offer, subject to the completion of a relationship property agreement with his former wife. In February 2016, the parties signed the sale and purchase agreement. The agreement required settlement within two months and vacant possession on settlement. The appellant vacated the property in April 2016.
[9] In June 2016, Oxygen Real Estate, a leasing agent on behalf of Colliers (acting for NZTA), advertised the property for rental. The appellant applied for a tenancy at the property. Oxygen Real Estate assessed the appellant as meeting the eligibility criteria and noted the appellant as one of the preferred three tenants. Oxygen Real Estate then sent the details of the three candidates to Colliers. Colliers advised Oxygen
[10] Real Estate that it would not be processing the appellant’s application due to the state he had left the property in when he moved out.
[11] In November 2021, the appellant filed proceedings in the Tribunal against NZTA. The appellant alleged NZTA discriminated against him on the grounds of employment status, disability or family status under the Act on two occasions. The appellant claimed the first instance of discrimination occurred when NZTA refused to allow him to remain on the property as a tenant when it was acquired. The second alleged occasion of discrimination was when NZTA rejected his application to rent the property in June 2016.
[12] The Tribunal dismissed the appellant’s claim on both grounds. The issue we must determine in this judgment is whether we ought to allow the appeal from the Tribunal’s decision.
Issues to be determined on appeal
[13] The appellant has advanced some of 22 grounds of appeal regarding the Tribunal’s decision, namely:
(a)An error of fact by failing to acknowledge NZTA’s revocation of the appellant’s opportunity to apply for a tenancy after the disclosure of protected characteristics on or about 17 August 2015 constituted unlawful discrimination under the Act.
(b)An error of law by failing to acknowledge the NZTA’s revocation of the appellant’s opportunity to apply for tenancy after the disclosure of protected characteristics on or about 17 August 2015 constituted unlawful discrimination under the Act.
(c)An error of fact by conflating the respondent’s revocation of the appellant’s opportunity to apply for a tenancy with a rejection of a tenancy application.
(d)An error of fact by conflating the outcome of the respondent’s decision
— whether the appellant could remain as a tenant — with the decision-making process. The Tribunal presumed the respondent had legitimate reasons for denying tenancy without acknowledging that the respondent’s revocation of consideration of a tenancy application from the appellant was a distinct act of alleged discrimination.
(e)An error of law and fact by failing to address the respondent’s circular reasoning through revoking the appellant’s opportunity to apply for tenancy which prevented the appellant from submitting evidence of his financial ability.
(f)An error of law in failing to apply a before and after comparator to determine if the respondent’s actions in revoking the appellant’s opportunity to apply for tenancy was an act of unlawful discrimination.
(g)An error of law by failing to examine whether the respondent's financial risk rationale was influenced by the appellant’s protected characteristics under the Act.
(h)An error of fact by failing to consider evidence that the respondent’s reason for revoking the appellant’s opportunity to apply for the tenancy lacked an objective basis.
(i)An error of law in failing to assess whether the respondent’s refusal to consider the appellant’s application for tenancy in June 2016, despite a recommendation from an impartial agent acting on behalf of the respondent, breached the statutory protections against unlawful discrimination.
(j)An error of law by applying the incorrect comparator analysis. The Tribunal failed to recognise differential treatment in the respondent’s refusal to consider the appellant’s tenancy application, while accepting applications from others without the appellant’s protected characteristics.
(k)An error of fact by failing to consider evidence that the respondent’s “property condition” rationale for refusing to consider the appellant’s June 2016 tenancy application was inconsistent with its prior knowledge and actions.
(l)An error in law and fact by failing to consider whether there was a pattern of unlawful discrimination by the respondent.
(m)An error of law by failing to consider the respondent’s obligations under the New Zealand Bill of Rights Act 1990 (NZBORA) and the
Residential Tenancies Act 1986, particularly in relation to the respondent’s tenancy-related decisions underlying the appellant’s discrimination claim.
(n)An error of fact and law by failing to consider the respondent’s obligations under the Privacy Act 2020, specifically regarding its unlawful misuse of the appellant’s personal information, which contributed to discriminatory treatment under the Act.
(o)An error of law by failing to assess whether the respondent’s actions breached its obligations under the Public Works Act 1981.
(p)An error of law and fact in failing to identify unlawful discrimination led to its erroneous omission of assessing the significant harm caused to the appellant and his son, including emotional distress, educational disruption, and social impacts.
(q)An error of fact by not addressing the respondent’s breach of its policy which requires the impartial acceptance and consideration of tenancy applications.
(r)An error of law in misapplying the comparator test, contrary to
Ministry of Health v Atkinson.2
(s)An error in law by applying an incorrect comparator analysis, contrary to the principles in McAlister v Air New Zealand Ltd.3
(t)An error in fact and law by failing to assess how the respondent’s potential violations of information privacy Principles 2, 7, 8, and 10 of the Privacy Act contributed to the alleged discriminatory treatment under the Act.
2 Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456.
3 McAlister v Air New Zealand Ltd [2009] NZSC 78, [2010] 1 NZLR 153.
(u)An error in fact and law by failing to assess whether the respondent’s actions violated the Privacy Act and caused interference, as per Taylor v Orcon Ltd.4
(v)An error in fact by making findings unsupported by evidence, contrary to Taylor v Orcon Ltd.
[14]The grounds of appeal can be grouped into the following broad issues:
(a)Did the Tribunal err in concluding that NZTA’s refusal to allow the appellant to stay as a tenant at the property did not amount to unlawful discrimination under s 19 of the Act?
(b)Did the Tribunal err in finding that NZTA’s rejection of the appellant’s tenancy application amount to unlawful discrimination under s 19 of the Act?
(c)Did the Tribunal otherwise err by failing to consider the respondent’s obligations under NZBORA, the Residential Tenancies Act, the Public Works Act and the Privacy Act?
[15] The appellant failed to file written submissions according to the timetabling directions of the Court, despite receiving multiple extensions from the Court. In a minute dated 30 May 2025, the Court declined the appellant’s application to file further submissions subsequent to the hearing.5 This judgment is delivered on the basis of the points of appeal filed by the appellant, his oral submissions and the respondent’s submissions at the hearing.
4 Taylor v Orcon Ltd [2015] NZHRRT 32. The appellant refers to the case citation of “Orcon Ltd v Taylor [2016] NZHC 433” which is a case that does not exist. The appellant appears to have incorrectly cited the case.
5 Emet v New Zealand Transport Agency HC Wellington CIV-2024-485-028, 30 May 2025 (Minute No 12).
Approach to appeal
[16] Section 123(2) of the Act allows a party to appeal all or any part of a decision of the Tribunal to the High Court. On appeal, the Court may confirm, modify, or reverse the order or decision appealed against, or any part of that order or decision and exercise any of the powers that could have been exercised by the Tribunal in the proceedings to which the appeal relates.6 The Court may also refer to the Tribunal, in accordance with the rules of Court, for further consideration by the Tribunal, the whole or any part of the matter to which the appeal relates.7
[17] The principles in the Supreme Court decision of Austin, Nichols & Co Inc v Stichting Lodestar apply. 8 These principles include the fact that:
(a)The appellant has the onus of persuading the appeal Court that the decision under appeal was wrong.9 The appeal Court must, however, arrive at its own assessment of the merits of the case. The extent of consideration given to the decision appealed from is a matter for the appeal Court's judgment.10
(b)The Tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important) and in such a case the appeal Court may rightly hesitate to conclude that findings of fact or fact and degree are wrong.11
[18] Having regard to those principles, we note that the Tribunal heard oral evidence from the appellant, which provided an opportunity to assess his evidence under cross- examination. The Tribunal also heard oral evidence from NZTA. We also note that the Tribunal is a specialist body that routinely deals with allegations of unlawful
6 Human Rights Act 1993, s 123(6).
7 Section 123(7).
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
9 At [4].
10 At [5].
11 At [5].
discrimination and is well placed to determine whether the circumstances of a particular case amount to such a breach.
Relevant law
[19]Section 19 of NZBORA provides:
19 Freedom from discrimination
(1)Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
(2)Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.
[20] The Court of Appeal in Ministry of Health v Atkinson sets out the test for when conduct constitutes discriminatory conduct, namely:
(a)whether there is differential treatment or effects as between persons or groups in analogous or comparable situations on the basis of a prohibited ground of discrimination;12
(b)whether that treatment has a discriminatory impact resulting in a material disadvantage for a person or group in comparable circumstances;13 and
(c)that treatment cannot be justified under s 5 of NZBORA.14
[21] Section 21 of the Act sets out and defines the prohibited grounds of discrimination. The relevant grounds of discrimination are:
21 Prohibited grounds of discrimination
(1) For the purposes of this Act, the prohibited grounds of discrimination are—
…
12 Ministry of Health v Atkinson, above n 2, at [55].
13 At [109].
14 At [2].
(h)disability, which means—
(i)physical disability or impairment:
…
(k)employment status, which means—
(i)being unemployed; or
(ii)being a recipient of a benefit as defined in Schedule 2 of the Social Security Act 2018 or an entitlement under the Accident Compensation Act 2001:
(l)family status, which means—
(i)having the responsibility for part-time care or full- time care of children or other dependants; or
(ii)having no responsibility for the care of children or other dependants; or
…
[22] Under s 19 of NZBORA, the Court must engage in a comparison between the complainant and someone in comparable circumstances, otherwise known as a comparator group. The comparator group “must be either persons generally or another person or group whose treatment is logically relevant to the person or group alleging discrimination”.15
[23]Part 1A of the Act sets out the grounds for unlawful discrimination, relevantly:
20I Purpose of this Part
The purpose of this Part is to provide that, in general, an act or omission that is inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990 is in breach of this Part if the act or omission is that of a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990.
20J Acts or omissions in relation to which this Part applies
(1)This Part applies only in relation to an act or omission of a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990, namely—
15 Quilter v Attorney-General [1998] 1 NZLR 523 at 573 per Tipping J.
(a)the legislative, executive, or judicial branch of the Government of New Zealand; or
(b)a person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
20K Purposes for which section 20L applies
Section 20L applies only for the purposes of—
…
(d)any determination made in proceedings before the Human Rights Review Tribunal or in any proceedings in any court on an appeal from a decision of that Tribunal:
…
20L Acts or omissions in breach of this Part
(1)An act or omission in relation to which this Part applies (including an enactment) is in breach of this Part if it is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990.
(2)For the purposes of subsection (1), an act or omission is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990 if the act or omission—
(a)limits the right to freedom from discrimination affirmed by that section; and
(b)is not, under section 5 of the New Zealand Bill of Rights Act 1990, a justified limitation on that right.
(3)To avoid doubt, subsections (1) and (2) apply in relation to an act or omission even if it is authorised or required by an enactment.
Did the Tribunal err in concluding that NZTA’s refusal to allow the appellant to stay as a tenant at the property did not amount to unlawful discrimination under s 19 of the Act?
Tribunal’s decision
[24] The Tribunal found there was no causative link between NZTA’s refusal, and the fact the appellant was on a benefit, had a disability, or had part-time care of his son. The Tribunal noted that in early July 2015, NZTA was prepared to consider the appellant’s requests to remain as a tenant provided that the tenancy was at market
rental and subject to the relevant credit checks. The Tribunal accepted a credit check was necessary to allow NZTA to assess the appellant’s creditworthiness.
[25] The Tribunal considered the material factor in NZTA’s decision was the inability of the appellant to pay a market rental and his poor history of payment of body corporate fees. The Tribunal noted that it was legitimate for NZTA to avoid financial risk when managing properties it had acquired. The Tribunal observed that NZTA policies expressly require it to maximise the income from property that it acquired while having due regard to obligations as a landlord and road controlling authority.
[26] The Tribunal determined an appropriate comparator was a hypothetical person who was not on a benefit, did not have a disability and did not have care of a child. That hypothetical person was subject to NZTA acquiring their property, sought to remain as tenant but have made clear they are unable to afford a market rent, have asked that rent be free or nominal and have a poor history of payment of body corporate fees. The Tribunal stated that NZTA would have similarly refused to permit that hypothetical person to remain as a tenant after the property was acquired, even if they appeared to accept a market rental to avoid financial risk.
[27] The Tribunal concluded that NZTA’s refusal to allow the appellant to stay in the property after it had acquired the property did not limit the appellant’s right to be free from discrimination affirmed by NZBORA, s 19.
Respondent’s submissions
[28] The respondent submits NZTA’s decision was not discriminatory as it was based on the financial risk and uncertainty over the appellant’s ability to make payments. The respondent refers to several established policies and processes which require NZTA and its agent and contractors to maximise the net income from property owned by NZTA. The respondent argues the basis of NZTA’s decision was on the following factors:
(a)The appellant failed to complete the pre-tenancy application form, despite receiving an email reminder on 24 July 2015.
(b)NZTA was aware throughout its dealings with the appellant that he had been in arrears in body corporate levies prior to NZTA being informed of the appellant’s employment, disability and family status.
(c)The pre-contract disclosure statement outlined that the appellant owed
$6,500 in body corporate levies.
(d)The handwritten letter from the appellant’s former wife indicating the appellant was unable to afford market rent due to the appellant being on a benefit. The respondent states neither the letter from the appellant’s former wife nor the correspondence from her lawyer referred to the appellant’s disability status.
(e)A letter from the appellant’s solicitor stating that the appellant was experiencing a difficult period in his life due to his head injury and divorce. The letter explained that the appellant would be required to rent a much less desirable property on acquisition, because his asset-tested benefit would be significantly reduced. The letter requested a free or nominal tenancy arrangement.
Analysis
[29] The appellant has alleged the Tribunal made an error in fact and law by failing to acknowledge NZTA’s revocation of the appellant’s opportunity to apply for a tenancy amounted to unlawful discrimination under the Act.16 The appellant has not articulated what the Tribunal allegedly mistook in fact. The first ground of appeal is more appropriately characterised as an error of law, in determining whether the Tribunal erred in interpreting and applying the legal test of unlawful discrimination under the Act.
[30] The first step we must consider is whether NZTA subjected the appellant to differential treatment on the basis of disability, employment or family status
16 See ground of appeal 1 and 2 at [13](a) and (b) of this judgment.
discrimination. The parties do not dispute that the appellant was a beneficiary, had a disability and engaged in part-time care of his son.
[31] We consider that the Tribunal did not err in concluding that NZTA’s decision did not amount to differential treatment of the appellant to those in an analogous situation. We agree with the Tribunal’s analysis that NZTA did not rely on the prohibited grounds of discrimination for its decision, rather the Tribunal correctly identified:
(a)NZTA was prepared to consider the appellant’s request to remain as a tenant on the property;
(b)NZTA was concerned the appellant would be a financial risk as a tenant given his body-corporate payment history;
(c)the appellant had failed to pay body corporate fees on time in the past;
(d)the appellant requested a tenancy for free or at nominal rent;
(e)the appellant was considered a financial risk and there was uncertainty as to his ability to pay rent; and
(f)the policies of NZTA require it to maximise income from a property it has acquired.
[32] We now turn to consider whether the Tribunal erred in law by failing to correctly apply a comparator analysis. Under s 19 of NZBORA, the Court must engage in a comparator test between the complainant and someone in comparable circumstances, otherwise known as a comparator group.
[33] We do not accept the appellant’s argument that the comparator test relies on analysing the appellant’s circumstances before NZTA’s decision and after NZTA’s
decision.17 The appellant’s interpretation is plainly incorrect. As noted by Tipping J in Quilter v Attorney-General:18
The essence of discrimination lies in difference of treatment in comparable circumstances. For discrimination to occur one person or group of persons must be treated differently from another person or group of persons.
[34] The comparator analysis, therefore, relies on a comparison between a person with characteristics underlying one or more of the prohibited grounds of discrimination and a hypothetical person in a similar circumstance without the characteristics related to the prohibited grounds of discrimination.
[35] If the hypothetical person in comparable circumstances without the prohibited grounds of discrimination was treated the same as the appellant, the Court would not find any unlawful conduct. If the hypothetical person in comparable circumstances without the prohibited grounds of discrimination was treated differently to the appellant, there would be unlawful discrimination.
[36] The appellant asserts the Tribunal’s decision was contrary to Ministry of Health v Atkinson.19 The basis for this contention is unclear and we have not been able to identify any inconsistency. The Tribunal appears to have set out in [55] of its decision the test established in Ministry of Health v Atkinson.
[37] The Tribunal identified correctly whether NZTA’s decision amounted to disability, employment status or family status discrimination under s 19 of the Act;20 whether there was differential treatment or effects as between persons or groups in analogous or comparable situations on the basis of a prohibited ground of discrimination;21 and whether any analysis was relevant under s 5 of NZBORA.22 Since the Tribunal did not find that there was a discriminatory impact on the appellant, we consider it was not necessary for the Tribunal to assess whether any discriminatory
17 See ground of appeal 6 at [13](f) of this judgment.
18 Quilter v Attorney-General, above n 15, at 573 per Tipping J.
19 See ground of appeal 18 at [13](r) of this judgment; and Ministry of Health v Atkinson, above n 2.
20 Emet v New Zealand Transport Agency, above n 1, at [25] and [29]–[39].
21 At [40]–[45].
22 At [45].
impact resulted in a material disadvantage for a person or group in comparable circumstance.
[38] We consider the Tribunal did not err in identifying the appropriate comparator group, namely a hypothetical person who was unable to pay market rent but was not on a benefit, had a disability, or had part-time care of his son. The Tribunal correctly suggested that it was open to NZTA to refuse to allow a person to remain on the property who could not pay rent or even nominal rent. We agree with the Tribunal’s reasoning that NZTA’s decision was primarily influenced by the appellant’s request for a rent-free tenancy and poor record of failing to pay body corporate levies, rather than his beneficiary, disability or family status.
[39] We consider that a hypothetical person who was not on a benefit, did not have a disability, did not have part-time care of their son but had requested to remain as a tenant paying no or nominal rent and was in arrears with body corporate fees would also have been refused a tenancy. In light of that comparator analysis, we consider NZTA did not make its decision on the basis of any of the contended grounds of discrimination.
[40] We, therefore, do not accept the appellant’s argument that the Tribunal made an error of fact or law in failing to assess whether the respondent’s revocation of the appellant’s opportunity to apply for a tenancy amounted to unlawful discrimination.
[41] In addition, we do not accept the appellant’s argument that the Tribunal applied the comparator test contrary to the principles in McAlister v Air New Zealand Ltd.23 The case of McAlister v Air New Zealand Ltd addressed discrimination under the s 104 of the Employment Relations Act 2000 while the current case relates to discrimination under s 19 of NZBORA.
[42] As we have concluded that NZTA did not subject the appellant to any unlawful discrimination under s 19. It is not necessary to undertake an analysis under s 5 of NZBORA.
23 McAlister v Air New Zealand Ltd, above n 3.
[43] The appellant argues the Tribunal erred in fact by presuming the respondent legitimately denied a tenancy without acknowledging that the respondent’s revocation of considering a tenancy application was a distinct act of alleged discrimination.24 In finding that NZTA did not engage in unlawful discrimination, we do not consider the Tribunal made an error of fact.
[44] We do not accept the appellant’s contention that NZTA revoked the appellant’s opportunity to apply for a tenancy which subsequently prevented the appellant from submitting evidence on his financial ability.25 The appellant was clearly advised on multiple occasions by NZTA or representatives of NZTA that any tenancy agreement would be subject to the relevant checks and approvals, including a pre-tenancy application to allow a credit and reference check. On 1 July 2015, Mr Hoffman, on behalf of TPG, emailed the appellant’s lawyer, attaching a pre-tenancy application, stating:
I note your advice that Atom would wish to remain in occupation of the property post-settlement. The Transport Agency is prepared to consider this, subject to relevant checks/approvals and on the clear understanding that any agreed tenancy would be at market rental under a standard periodic tenancy agreement.
[45] On 24 July 2015, Mr Hoffman sent an email to the appellant’s lawyer, attaching a draft agreement for purchase of the appellant’s property titled Memorandum of Agreement Pursuant to the Public Works Act 1981 (the Memorandum). In that email, Mr Hoffman reminded the appellant:
Schedule B, clause 6 provides for the granting of a periodic tenancy to Atom Emet from settlement date (subject to Atom completing the tenancy application form previously provided and Transport Agency approval being confirmed following relevant checks) (emphasis added).
[46]Clause 6(a) Schedule B of the Memorandum relevantly sets out:
Subject to Crown approval and other relevant checks, the Crown through NZ Transport Agency, agrees to grant and Atom S Emet agrees to accept a periodic residential tenancy of the Land commencing on the day immediately following the Settlement Date at the weekly rental of $370.00 including GST, if any, and on the terms and conditions in the Residential Tenancy Agreement attached as Schedule C to this Agreement (emphasis added).
24 See ground of appeal 4 at [13](d) of this judgment.
25 See ground of appeal 5 at [13](e) of this judgment.
[47] We acknowledge the appellant had been going through what his lawyer described as a “difficult period” in his life. However, the respondent did not engage in “circular reasoning” as the appellant contends. The fact is that the appellant failed to complete the pre-tenancy application form required of him. Without the pre-tenancy application, it was open to NZTA to decline to offer a residential tenancy to the appellant.
[48] We find that NZTA did not deny the appellant the fair chance to demonstrate his eligibility for tenancy. NZTA gave the appellant an opportunity to do so from 1 July 2015 to at least 5 September 2015 (before Mr Hoffman advised in an email dated 5 September 2015 the appellant that NZTA was reluctant to offer the appellant a tenancy). The appellant was given ample opportunity to complete the pre-tenancy application form which would have allowed NZTA to complete the necessary checks. The offer of a tenancy agreement was subject to the appellant completing those checks. If the appellant had completed the form and NZTA was satisfied with his credit history, NZTA could have then offered the appellant a tenancy as stated in the agreement.
[49] In light of these conclusions, we do not find that the Tribunal failed to address the alleged circular reasoning in NZTA’s decision to deny the appellant to stay as a tenant at the property.26
[50] In addition, we do not find the Tribunal erred in examining whether the appellant’s protected characteristics under the Act influenced the respondent’s “financial risk rationale”.27 The test for unlawful discrimination is whether NZTA refused to allow the respondent to remain at the property as a tenant due to his employment, family or disability status. Having concluded that NZTA did not engage in unlawful discrimination against the appellant, it is not necessary to assess whether the appellant’s protected characteristics influenced the respondent’s “financial risk rationale”.
[51] The appellant claims that the Tribunal erred in fact by conflating the respondent’s revocation of the appellant’s opportunity to apply for tenancy with a
26 See ground of appeal 5 at [13](e) of this judgment.
27 See ground of appeal 7 at [13](g) of this judgment.
rejection of a tenancy application.28 To address this ground briefly, the Tribunal referred to NZTA’s refusal to allow the appellant to remain as a tenant on the property as a “rejection” of the appellant’s tenancy application. The argument of the Tribunal conflating rejection and revocation of the appellant’s opportunity to submit a tenancy application in June 2016, is addressed below at [57] in the second issue of this judgment.
[52] We do not accept the appellant’s argument that the respondent concluded the appellant was a financial risk without assessment of the appellant’s ability to pay. There were multiple circumstances which identified the financial inability of the appellant to meet the cost of the tenancy.
[53] First, the appellant’s former wife confirmed that the appellant did not have the financial means to afford a tenancy at market rate. This information was conveyed in a letter from the appellant’s former wife’s lawyer to TPG dated 17 August 2015, attaching a handwritten letter from the former wife: That letter said:
Dear Mr Hoffman,
Due to Atom’s current financial situation, I know that he cannot afford current market rent. I support his request to pay an affordable rent so that my son may have a safe and stable place to spend with his father…
[54] Second, the appellant’s lawyers, in a letter to TPG dated 24 August 2015, requested the appellant be granted a tenancy either rent free or at nominal rent. In that letter, the appellant’s lawyer makes reference to the former wife’s letter, confirming the lack of financial ability of the appellant to afford the tenancy. The appellant, through his lawyer, has clearly adopted the view expressed by his former wife. In an email dated 4 September 2015, the appellant’s lawyer requested either a rent free tenancy or tenancy at a nominal rate.
[55] Third, the appellant’s lawyer later referred to the appellant’s former wife’s letter confirming that he did not have the financial ability to afford a tenancy at market rate.
28 See ground of appeal 3 at [13](c) of this judgment.
[56] Fourth, there was evidence that the appellant was in arrears in respect of body corporate fees. In an email dated 29 July 2014, Mr Hoffman stated that the appellant “advises he wants to pay his arrears of levies”. In a report dated 26 January 2016, TPG confirmed that the appellant was in excess of $6,500 in outstanding charges owed to the body corporate through a pre-contract disclosure statement.
[57] There was clearly sufficient evidence available to NZTA that indicated the appellant was a “financial risk”. As a result, we do not find that the Tribunal failed to consider that the respondent’s “financial risk” rationale in revoking the appellant’s opportunity to apply for tenancy lacked an objective basis.29 If the appellant was concerned about the fact that NZTA had insufficient information regarding his financial circumstances, the appellant ought to have filed the pre-tenancy application to complete the relevant financial checks.
[58]The relevant grounds of appeal are dismissed.
Did the Tribunal err in finding that NZTA’s rejection of the appellant’s tenancy application amount to unlawful discrimination under s 19 of the Act?
The Tribunal’s decision
[59] The Tribunal rejected the appellant’s claim that NZTA declined his tenancy application based on the prohibited grounds of discrimination. The Tribunal referred to an email dated 17 June 2016 whereby Colliers rejected the appellant’s application due to leaving the property in a poor condition when he vacated it in April 2016.
[60] The Tribunal held that it was clear why his application was rejected. The Tribunal determined that the rejection of the appellant’s tenancy application was not in any way based on his employment status, disability or family status.
[61] The Tribunal held that NZTA’s rejection of his tenancy application in June 2016 did not limit his right under s 19 and no issue of justification arose under s 5 of NZBORA.
29 See ground of appeal 8 at [13](h) of this judgment.
Respondent’s submissions
[62] The respondent submits that there was justification for NZTA to reject the appellant’s application. Colliers rejected the appellant’s application on the basis that he had left the property in “an absolute state” when he vacated it, and that it had required $3000 of repairs. The respondent suggests the condition in which the appellant left the property indicates the condition in which the appellant would likely keep the property as a tenant. The respondent states that NZTA would likely incur further costs for cleaning and repairs if NZTA accepted the appellant as a tenant.
[63] The respondent suggests that NZTA did not raise concern regarding the condition of the property as an issue at an earlier stage because it was the appellant’s property to maintain or not as he saw fit.
Analysis
[64] We now turn to analyse whether NZTA’s refusal to consider the appellant’s tenancy application in June 2016 was an unlawful act of discrimination under the Act.30
[65] On 4 June 2021, an email between Colliers staff wrote “[Colliers] made a call not to accept an application based on the state that the property was left” and attached an email from Colliers dated 17 June 2016 to Oxygen Real Estate:
In regards to Atom Emet — he was in this flat previously before NZTA bought it. I’m not sure if you are aware but he left the flat in an absolute state, which required approximately $3,000 spent for cleaning and repairs.
[66] We agree with the Tribunal’s conclusion that NZTA rejected the appellant as a tenant on the basis of the condition of the property that he left it in, rather than any grounds of discrimination.
[67] The Tribunal did not specifically apply a comparator analysis to this issue but that is not fatal to the outcome.31 Instead, a comparator analysis supports the Tribunal’s conclusion.
30 See ground of appeal 9 at [13](i) of this judgment.
31 See ground of appeal 10 at [13](j) of this judgment.
[68] An appropriate comparator group is a hypothetical person who is not on the benefit, does not have part-time care of a dependent and does not have a disability. That hypothetical person has applied for a tenancy at a property in which they previously left in a poor condition, requiring $3,000 of repairs. In those circumstances, we find that it would have been open for NZTA to reject the tenancy application of that hypothetical person.
[69] We acknowledge the appellant’s argument that NZTA was required to notify the appellant of its concern regarding the condition of the property before acquisition.32 Under cl 2 of schedule B of the Memorandum, the Crown could inspect the land, chattels and their state of repair before the settlement date. The Crown was then required to notify the appellant to remedy any defect or damage to the land or to the chattels. While that clause is relevant to the terms of settlement, it is not relevant to our assessment of whether NZTA rejected the appellant’s tenancy application on the basis of employment, disability or family status.
[70] In addition, it was open to NZTA to take into account the condition that the appellant left the property to determine whether to accept the appellant as a tenant. NZTA, as a landlord, is required to maximise net income of property as a landlord.33
[71] The appellant argues that NZTA engaged in unlawful discrimination because Colliers, on behalf of NZTA, did not accept the appellant as a tenant despite the recommendation from Oxygen Property Estate. Colliers was not legally bound to accept that recommendation. The purpose of the advertisement was to find a list of potential tenants for the property. The fact that Oxygen Property shortlisted the appellant did not require NZTA to accept the appellant’s application, nor does the rejection of his application amount to unlawful discrimination.34 Oxygen Property had proposed two other candidates for a tenancy, and it was open to Colliers to decide the most appropriate tenant for the property.
32 See ground of appeal 11 at [13](k) of this judgment.
33 Transit Property Division Management Systems Manual, December 2022.
34 See ground of appeal 9 at [13](i) of this judgment.
[72] In light of these facts, NZTA did not subject the appellant to differential treatment on the basis of disability, employment or family status discrimination.
[73] There was no unlawful discrimination under s 19 of NZBORA and therefore, it is not necessary to analyse whether any limitation on the appellant’s rights was justified under s 5 of NZBORA.
[74]These grounds of appeal are dismissed.
Did the Tribunal otherwise err by failing to consider the respondent’s obligations under NZBORA, the Residential Tenancies Act, the Public Works Act and the Privacy Act?
Alleged pattern of discrimination and unassessed harm to the appellant
[75] The appellant argues the Tribunal failed to consider the pattern of discrimination in refusing to allow the appellant to remain as a tenant on the property and rejecting his tenancy application in June 2016.35
[76] Having found that NZTA did not unlawfully discriminate the appellant in both circumstances, we do not accept there was an alleged pattern of discrimination. We agree, therefore, with the respondent’s submissions that the Tribunal was not required to assess the harm the appellant had suffered for the purpose of relief.36
[77]The relevant grounds of appeal are dismissed.
NZBORA, Residential Tenancies Act 1986 and Public Works Act 1981
[78] We agree with the respondent’s submissions that it is unclear which obligations in NZBORA, the Residential Tenancies Act and the Public Works Act that the appellant relies upon.37 We agree with the respondent’s submissions that NZTA’s obligations under the Public Work Act are not relevant to the assessment of the Tribunal’s decision.
35 See ground of appeal 12 at [13](l) of this judgment.
36 See ground of appeal 16 at [13](p) of this judgment.
37 See ground of appeal 13 at [13](m) and [13](o) of this judgment.
[79] In the circumstance that the appellant alleges discrimination under s 12 of the Residential Tenancies Act, the Human Rights Review Tribunal does not have jurisdiction to determine that issue nor would it be appropriate for the Court to determine on appeal.38
[80]These grounds of appeal are dismissed.
Privacy Act 1993
[81] The appellant alleges that the Tribunal erred in fact and law by failing to consider the respondent’s obligations under the Privacy Act, specifically the misuse of the appellant’s personal information which contributed to discriminatory treatment.39 The appellant refers to NZTA’s reliance on his former wife’s letter. However, this argument fails because of our finding that the appellant, through his lawyer had specifically adopted and relied on the letter.
[82] The appellant also alleges NZTA breached information privacy Principles 2, 7, 8 and 10 of the Privacy Act.40 The issue of alleged breaches of privacy was not the subject of the proceedings in the Tribunal’s decision. For the reasons we now set out, we are of the view that NZTA did not breach the privacy Principles in relation to the appellant.
[83] Information privacy Principle 2 requires an agency to collect personal information from the individual concerned. In relation to Principle 2, the respondent submits that NZTA did not “collect” any personal information from the appellant’s former wife or her lawyer. NZTA claims it received the information unsolicited.
[84] Information privacy Principle 7 states an individual whose personal information is held by an agency is entitled to request the agency to correct the information. Information privacy Principle 8 requires an agency that holds personal information to not use or disclose that information without taking any steps that are,
38 See Residential Tenancies Act 1986, ss 12, 77 and 109.
39 See ground of appeal 14 at [13](m) of this judgment.
40 See ground of appeal 20–22 at [13](t), (u) and (v) of this judgment.
in the circumstances, reasonable to ensure that the information is accurate, up to date, complete, relevant, and not misleading.
[85] In relation to Principle 7 and 8, the respondent submits that the appellant did not request that NZTA correct any personal information that it held about him. The respondent argues that the appellant’s lawyer referred to his former wife’s letter as support for the request for a free tenancy or at nominal rate.
[86] Information privacy Principle 10 requires an agency that obtained personal information in connection with one purpose to not use the information for any other purpose. However, an agency may use the information for another purpose if the agency believes, on reasonable grounds, that the purpose for which the information is to be used is directly related to the purpose in connection with which the information was obtained.
[87] In regard to Principle 10, the respondent submits the appellant’s personal information was provided to NZTA for the purpose of persuading NZTA to grant the appellant a rent free or nominal tenancy. NZTA declined to do so, and “used” the information to confirm its earlier view that appellant would unlikely be able to pay market rent. The respondent notes that these purposes were directly related.
Analysis
[88] We accept the respondent’s submission that there were no breaches of the privacy Principles. NZTA did not “collect” the appellant’s personal information from the appellant’s former wife or her lawyer. The appellant had the opportunity to correct any information contained within the letter. However, the appellant’s own lawyer clearly relied on the letter in support of the proposition that the appellant could not afford a tenancy at market rate.
[89] As outlined by the respondent’s submissions, NZTA has an obligation to maximise income on properties as a landlord. We consider that it was open to NZTA to use the information regarding the appellant’s inability to afford a tenancy at market rent to assess his tenancy application.
[90] We do not accept the appellant’s argument that the Tribunal’s decision was contrary to the case of Taylor v Orcon Ltd.41 The appellant has not specified which aspect of the Tribunal’s decision was contrary to Taylor v Orcon Ltd nor identified the relevance of the case. The issue in Taylor v Orcon Ltd related to the appropriate quantum of costs to be awarded after the Tribunal concluded a telecommunications company breached privacy Principle 8 against the plaintiff. Taylor v Orcon Ltd does not assist in our assessment as to whether the Tribunal erred in determining whether NZTA subjected the appellant to unlawful discrimination.
[91]The relevant grounds of appeal are dismissed.
Deviation from NZTA’s policy
[92] The appellant contends that the Tribunal erred in fact by failing to address the respondent’s breach of its policy, which requires the impartial acceptance and consideration of tenancy applications.
[93] For the reasons we have set out above, NZTA did not unlawfully discriminate against the appellant. The fact that the appellant did not agree with NZTA’s decision does not lead to the conclusion that NZTA lacked impartiality in considering the tenancy applications.
Conclusion
[94]The appeal, having failed on all grounds, is dismissed.
Churchman J
Solicitors:
Chapman Tripp, Wellington for Respondent
41 See grounds of appeal 21 and 22 at [13](u) and (v) of this judgment; and Taylor v Orcon, above n 4.
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