Entwistle v Wellington City Council - [2014] NZHC 496

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-002595 [2014] NZHC 496

IN THE MATTER of an appeal against a determination of the
Tenancy Tribunal

BETWEEN JENNIFER ENTWISTLE Appellant

ANDWELLINGTON CITY COUNCIL Respondent

Hearing: 17 March 2014

Counsel: Appellant in person
A L Holloway for Respondent

Judgment: 18 March 2014

JUDGMENT OF COLLINS J

Introduction

[1] Ms Entwistle has appealed a decision of Judge Hastings in which he upheld an order of the Tenancy Tribunal (the Tribunal). In its decision the Tribunal granted the Wellington City Council (the Council) possession of residential Unit 45 which Ms Entwistle occupies at a Council owned complex called “Pukehinau Flats” (Unit 45).

[2] Ms Entwistle’s notice of appeal to the High Court lists a number of complaints about Judge Hastings’ decision. For present purposes those complaints can be distilled to two key grounds:

(1)Judge Hastings erred when he failed to decide that Ms Entwistle had a periodic tenancy under ss 60A and 60B of the Residential Tenancies
Act 1986 (the Act).

ENTWISTLE v WELLINGTON CITY COUNCIL [2014] NZHC 496 [18 March 2014]

(2)Judge Hastings erred when he refused to adjourn the hearing of Ms Entwistle’s appeal and that as a consequence Ms Entwistle was denied her right to an effective appeal.

[3] During the course of the hearing on 17 March 2014 I endeavoured to clarify if Ms Entwistle wanted me to determine her appeal or decide if I should grant a stay of Judge Hastings’ decision pending the hearing and determination of her appeal. Ms Entwistle asked me to grant a stay of Judge Hastings’ decision, hear and determine her appeal and if necessary, grant her leave to appeal my decision to the Court of Appeal. Mr Holloway, counsel for the Council anticipated that I would hear Ms Entwistle’s appeal on 17 March. However, he was also content for me to treat the hearing on 17 March as the hearing of an application by Ms Entwistle to stay Judge Hastings’ decision.

[4] After careful reflection I have decided that I should determine Ms Entwistle’s

appeal. My reasons for doing so are:

(1)Ms Entwistle has argued her appeal. I have listened to her submissions on 10 and 17 March 2014. Ms Entwistle’s case has taken a total of approximately two hours to hear. I am satisfied Ms Entwistle has had a reasonable opportunity to advance her appeal.

(2)For reasons which I explain later in this judgment I would in all likelihood have declined Ms Entwistle’s application for a stay. Declining Ms Entwistle’s application for a stay would have the same practical effect as me dismissing Ms Entwistle’s appeal because the Council would be able to take possession of Unit 45 if I dismiss her appeal or declined to grant her a stay.

Background

[5] In a letter dated 22 November 2012, the Council offered Ms Entwistle a fixed term tenancy from 28 November 2012 to 30 September 2013 in relation to Unit 45.

[6] The Council only offered Ms Entwistle a fixed term…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Entwistle v Wellington City Council

Details

AGLC: Entwistle v Wellington City Council [2014] NZHC 496
Case: [2014] NZHC 496
Decision Date: 18 March 2014

CaseChat Overview and Summary

In Entwistle v Wellington City Council, Ms Jennifer Entwistle appealed a decision of the Tenancy Tribunal that granted the Wellington City Council possession of residential Unit 45 at Pukehinau Flats, which Ms Entwistle occupied. Ms Entwistle argued that the judge erred in not finding she had a periodic tenancy under sections 60A and 60B of the Residential Tenancies Act 1986, and that she was denied her right to an effective appeal. The court had to decide whether the judge erred in his findings and whether Ms Entwistle's right to an effective appeal was denied.

The court found that the evidence established that the Council did not agree to Ms Entwistle continuing to possess Unit 45, and there was no evidence that would have enabled the judge to conclude that Ms Entwistle had a periodic tenancy. Therefore, the court dismissed Ms Entwistle's first ground of appeal. Regarding the second ground, the court found that Ms Entwistle's appeal in the District Court was conducted in an unusual procedural manner, but she was not denied an effective right of appeal. The court also found that it was not in the interests of justice to prolong Ms Entwistle's unrealistic hopes, and her grounds of appeal were futile. However, due to the significance of the decision for Ms Entwistle, the court stayed its decision from taking effect until 12 noon on 26 March 2014 to enable Ms Entwistle to find alternative accommodation.

In conclusion, Ms Entwistle's appeal was dismissed, and because of her limited financial means, the court made no order as to costs.

Orders