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 tenancy because Unit 45 was  allocated  to  someone  else  that  was  being  relocated  from  another  Council property that was to undergo renovations.

[7]      On 28 November 2012 the Council and Ms Entwistle executed a fixed term tenancy agreement.  This was signed by Ms Entwistle and witnessed by her support person, Ms Bell, of the Downtown Community Ministry.

[8]      On 19 July 2013 Ms Entwistle wrote to the Council advising that she wished “to formally advise [the Council] that [she] wished to extend [her] tenancy under ss 60A(1)(3) and 60B(2)” of the Act.   Ms Entwistle said her tenancy should now become a periodic tenancy under the Act.

[9]      On 27 August  2013,  Ms  Entwistle again  wrote  to  the Council  in  which amongst other things she asked the Council to acknowledge the letter that she had sent on 19 July 2013 requesting that her tenancy be extended.

[10]     There was a delay to the renovations of the property occupied by the person who was to occupy Unit 45.  When that delay occurred Ms Entwistle was offered an extension to her fixed term tenancy until 28 November 2013.   This proposed extension was recorded in a letter dated 27 August 2013.  This offer was conditional on Ms Entwistle accepting the offer before 30 September 2013.  Ms Entwistle says she did not get that letter.  It is common ground the Council did not get a response to its 27 August letter.

[11]     On 24 September 2013 the Council wrote to Ms Entwistle. The letter said:

We wrote to you on 27 August 2013 with an offer to extend your current fixed term tenancy.

To date you have not signed your new Tenancy Agreement and as such your current Fixed Term Tenancy will end on Monday 30 September.

…

Ms Entwistle says she did not receive this letter.   It is again common ground the

Council did not get a response to its 24 September letter.

[12]     On 2 October 2013 the Council applied to the Tribunal for possession of

Unit 45.

[13]     On 18 November 2013 the Tribunal granted the Council a possession order. The possession order was to take effect on 28 November 2013.  The decision of the Tribunal was made pursuant to s 64 of the Act, which authorises the Tribunal to make orders granting possession of premises to any person who is entitled to possession of those premises.

[14]     In an email dated 29 November 2013 the Council said it would halt action in relation to enforcing its possession order if Ms Entwistle would attend a meeting with the Council scheduled for 2 December 2013.   That meeting took place on

4 December 2013.

[15]     Ms Chitterton, an employee of the Council, explained in her affidavit in the District Court that the purpose of the meeting of 4 December 2013 was to see if Ms Entwistle  would  accept  an  alternative  rental  unit  in  Hobart  Park,  Miramar. Ms Chitterton  explained  in  her  affidavit  that  this  proposal  was  conditional  on Ms Entwistle agreeing to address alleged “behavioural issues” which had arisen in relation to her occupancy of Unit 45.  It transpired that no agreement was able to be reached that would have enabled Ms Entwistle to have moved to the alternative property in Hobart Park.

[16]     The alleged behavioural issues which the Council wanted to address with

Ms Entwistle included complaints that Ms Entwistle had:

(1)Sent threatening and abusive communications to Council employees and contractors.

(2)       Distressed and upset other tenants in Pukehinau.

(3)Turned  on the fire hose in Pukehinau causing the complex  to be evacuated at 11.30 pm on a Saturday night.

[17]     On 28 November 2013 Ms Entwistle filed an appeal from the decision of the Tribunal in the Wellington District Court.  She also applied for a stay of proceedings on 1 December 2013.  On 4 December 2013 Judge Broadmore granted Ms Entwistle a stay of proceeding until her appeal was heard.   The appeal was set down for hearing on 13 January 2014.  On that day Judge Broadmore heard the parties and granted Ms Entwistle an adjournment.  On 16 January 2014 Judge Broadmore issued directions in which he identified the issues that were to be heard in relation to Ms Entwistle’s appeal.  He said the issues were:

(1)       Did Ms Entwistle have a fixed-term tenancy that had terminated; or

(2)       Had she at some stage obtained the right to a periodic tenancy?

(3)In the event that Ms Entwistle did have the right to a periodic tenancy, did any step taken by the Council take effect as a notice to terminate that tenancy pursuant to s 51(1)(c) of the Act?

(4)Was any rent outstanding from Ms Entwistle to the Council and, if so, what amount?

Judge Broadmore also directed the parties were to file additional evidence by way of affidavits and that the appeal was to be set down for a half day fixture on the first available date after 17 February 2014.

[18]     On 13 February 2014 Ms Entwistle filed a memorandum in the District Court seeking an adjournment of her appeal.   On 13 February 2014 Judge Broadmore issued  a  direction  that  the  appeal  was  to  proceed  on  3  March  2014.    Judge Broadmore varied the timetabling orders by extending the deadline for filing and service of any affidavits being relied on by Ms Entwistle to 17 February 2014.

[19]     Ms Entwistle then sought leave to appeal Judge Broadmore’s directions of

18 February.  Judge Broadmore gave leave to Ms Entwistle to appeal his decision. However,  as  the  appeal  was  not  stayed  or  adjourned,  Judge  Hastings  heard Ms Entwistle’s appeal on 3 March 2014.

Judge Hastings’ decision

[20]     Judge  Hastings  explained  in  his  judgment  that  the  hearing  “took  on  a somewhat unusual procedural complexion”.  Judge Hastings’ judgment explains:1

Although Mr Holloway and Ms Russell [for the Council] were ready to proceed at 10.00 am, Ms Entwistle did not appear.  As Mr Holloway had prepared an opening submission, I permitted him to take me through it. When Ms Entwistle eventually arrived, she said that she had appealed Judge Broadmore’s decision dated 18 February 2014 not to revisit his decision to decline her request for an adjournment of these proceedings.

… No application to stay these proceedings had been filed.  After hearing submissions from Mr Holloway and Ms Entwistle, I declined Ms Entwistle’s further request for an adjournment on the grounds of illness, that she had to enrol in law school, that she felt she needed a lawyer now, that she had no support person, and that she had not brought documents and witnesses with her.   At her request, we then adjourned for 15 minutes to enable her to compose herself.

When Court resumed after the adjournment, Ms Entwistle was not present. Mr Holloway continued to take me through his opening submission when Ms  Entwistle  reappeared.    I told  her  that  normally the  appellant  would present its case first, but as she was unrepresented, I was willing to have Mr Holloway present the Wellington City Council’s case first so that she would be fully informed and have the opportunity to cross-examine its witnesses.  Mr Holloway responsible abided this direction, and indicated that he did not want to cross-examine the deponents of affidavits supplied by Ms Entwistle.

Mr Holloway then produced [Mr Bosch], the Manager of Tenancy Services for Wellington City Council, who read his affidavit into the record, was cross-examined by Ms Entwistle and re-examined by Mr Holloway.   Mr Holloway then produced Mr Botha, the Allocations Advisor, City Housing, for Wellington City Council.  At this point, Ms Entwistle began to unwrap a chocolate bar.   Security staff told her that she was not allowed to eat in Court.  She then told the Court it was for her low blood sugar.  I adjourned the  Court for five  minutes  to give  her time  to remedy her  blood sugar situation.  After 15 minutes, the Registrar told me that Ms Entwistle again could not be found.

I re-entered the courtroom, and brought this proceeding to a close.   I told Mr Holloway and Ms Russell that I would use the pleadings, affidavits and attachments on file, and the oral evidence of Mr Bosch, to write the reasons for my decision, which was reserved.

[21]     Judge    Hastings    identified   the    issues    as    being    those    set    out    by

Judge Broadmore in his directions ruling of 16 January 2014.

1      Entwistle v Wellington City Council DC Wellington CIV-2013-085-936, 5 March 2014 at [3]-[7].

[22]     Judge Hastings upheld the decision of the Tribunal which had found that

Ms Entwistle “knowingly” entered into a fixed term tenancy from 28 November

2012 to 30 September 2013 and that at no stage had Ms Entwistle obtained the right to a periodic tenancy.

Appeal to the High Court

[23]     Ms Entwistle has not filed an application for a stay.  Filing an appeal in a case such as this does not operate as a stay of proceeding.2

[24]     Ms Entwistle’s appeal was called before me in the Duty Judge’s Chambers List on 10 March 2014.  At that time the Council was preparing to take physical possession of Unit 45 at midday on 10 March.  However, the Council agreed not to evict Ms Entwistle if her appeal was able to be heard and determined promptly.  I undertook to hear Ms Entwistle’s case on 17 March 2014.

[25]     On 13 March 2014 Ms Entwistle filed an application for leave to appeal to the Court of Appeal.  An application for leave to appeal to the Court of Appeal can only be considered after the High Court has made a determination.3   Ms Entwistle’s application for leave to appeal to the Court of Appeal is premature and cannot be considered at this juncture.

[26]     Ms Entwistle’s appeal can only be allowed if Judge Hastings made an error of law.4

Did Judge Hastings err when he failed to find Ms Entwistle had a periodic tenancy?

[27]     Ms Entwistle’s primary ground of appeal is that Judge Hastings erred when

he failed to find that she had a periodic tenancy under ss 60A and 60B of the Act.

[28]     The relevant portions of ss 60A and 60B of the Act provide:

2      Residential Tenancies Act 1986, s 117(10).

3      Section 120.

4      Section 119.

60A     Fixed-term  tenancy  becomes  periodic  unless  contrary  notice given

(1)       On the expiry of a fixed-term tenancy of more than 90 days, the tenancy continues as a periodic tenancy with the same terms as the terms contained in the expired tenancy so far as those terms are consistent with a periodic tenancy.

(2)      Subsection (1) does not apply if—

(a)       the parties enter into a new tenancy agreement or agree to extend the existing tenancy agreement;  or

(b)       within  the  effective  period,  either  party  gives  the  other written notice of the party’s intention not to continue with the tenancy.

(3)       The effective period is the period that starts on the 90th day before the date on which the tenancy expires and ends with the 21st day before that date.

...

60B     Tenant must exercise right to renew or extend tenancy not later than 21 days before expiry

(1)       A tenant who wishes to exercise a right under the tenancy agreement to require the landlord to grant the tenant a renewal or an extension of the tenancy must exercise that right by giving the landlord written notice, in accordance with this section, of the tenant’s intention to exercise the right.

(2)       The tenant must give notice of the tenant’s intention not later than the 21st day before the date on which the tenancy would otherwise expire.

...

[29]     The evidence before the Tribunal and before the District Court was that the Council granted Ms Entwistle a fixed term tenancy.  That tenancy agreement was to expire on 30 September 2013.  The Council offered to extend the fixed term tenancy until 28 November 2013. That offer was not accepted.

[30]     The  Council’s  letter  of  24  September  clearly  constituted  notice  by  the

Council  of  its  intention  not  to  continue  with  the  fixed  term  tenancy  beyond

30 September 2013.

[31]     The Council  took  all  steps  it  could  to  give effect  to  its  decision  not  to continue with Ms Entwistle’s fixed term tenancy.  Those steps included applying for a possession order on 2 October 2013.

[32]     The  Council’s  willingness  to  negotiate  alternative  accommodation  with Ms Entwistle at the meeting on 4 December 2013 did not equate to the parties entering into  a new tenancy agreement  or an  extension  of the existing tenancy agreement in relation to Unit 45.

[33]     For these reasons, s 60A of the Act is of no assistance to Ms Entwistle.

[34]     Section 60B of the Act also does not assist Ms Entwistle.   I understand Ms Entwistle believes her letters of 19 July 2013 and 27 August 2013 constituted her exercising a right under the tenancy agreement to require the Council to grant her a renewal or extension of the tenancy.   However, no such right existed in the fixed term tenancy agreement which Ms Entwistle agreed to on 28 November 2012.  She therefore could not expect the Council to renew or extend her fixed term tenancy.

[35]    For these reasons, the evidence before the Tribunal and Judge Hastings overwhelmingly  established  that  the  Council  did  not  agree  to  Ms  Entwistle continuing to  possess  Unit  45.   There is  no  evidence  that  would  have enabled Judge Hastings  to  have  concluded  that  Ms  Entwistle  had  a  periodic  tenancy. Judge Hastings would have made an error if he had found Ms Entwistle had a periodic tenancy.  I accordingly dismiss Ms Entwistle’s first ground of appeal.

Was Ms Entwistle denied an effective right of appeal?

[36]     Ms Entwistle had a right of appeal to the District Court.   It was therefore necessary for the District Court to ensure Ms Entwistle had an effective right of appeal which, so far as was reasonably possible, ensured that justice was done in the

appeal process.5   Ms Entwistle’s appeal involved determining her right to continue to

5      Her statement of principle is based upon R v Taito [2002] UKPC 15, [2003] 3 NZLR 577 (PC) at

[12]; Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153.

occupy Unit  45  and  therefore  engaged  art  11  of  the  International  Covenant  on

Economic, Social, and Cultural Rights.6

[37]     Ms Entwistle’s rights under s 27 of the New Zealand Bill of Rights Act 1990 were also engaged.  She had the right to the observance of the principles of natural justice in relation to the hearing before the Tribunal and the District Court.

[38]     In her notice of appeal, Ms Entwistle lists a number of complaints with the way in which Judge Hastings conducted the hearing of her appeal.  Her complaints are:

(1)That Judge Hastings should have adjourned the hearing of her appeal on the basis of her health and medical certificates.

(2)       Judge Hastings should have allowed witness summonses to be issued. (3)     She was denied her right of audience.

(4)       The Council failed to provide full disclosure.

(5)The  outcome  would  have  been  different  if  full  facts  had  been presented.

(6)       The Council had an “unfair advantage”.

[39]     I shall now briefly deal with each of Ms Entwistle’s concerns.

Adjournment on health grounds

[40]     The “medical certificates” which Ms Entwistle presented in the District Court did not provide a basis for Judge Hastings to adjourn the hearing of Ms Entwistle’s appeal on medical grounds.   The documents explain Ms Entwistle was feeling distressed  following  an  assault  on  20  February  2014,  in  which  it  is  alleged

Ms Entwistle was placed in a headlock and lifted off the ground.   There was no

6      Art 11 ICESCR; ratified by New Zealand 28 December 1978.

evidence from a medical professional which said Ms Entwistle needed an adjournment on 3 March 2014.

Witness summonses

[41]     The Court records do not show that Judge Hastings declined to issue any witness summonses.   Ms Entwistle may have applied to a Registrar for a witness summons, however, the records do not show if she did this.

[42]     Judge Broadmore had ruled both parties were to provide their evidence by way of affidavits and that each deponent would be available for cross-examination. No explanation has been given as to why Ms Entwistle did not comply with these directions.  Nor did Ms Entwistle explain what evidence she anticipated would be produced by the witnesses whom she wanted to summon.  I can see no error on the part of Judge Hastings when he allegedly declined to issue witness summonses.

Right of audience

[43]     Ms Entwistle was a party to a full hearing before the Tribunal.  She had the opportunity to provide affidavit evidence in support of her appeal and to advance her appeal in the District Court.  She was not denied a right of audience.

Disclosure

[44]     The evidence shows Ms Entwistle requested one document from the Council on 16 January 2014 and this was provided on 24 January 2014.  On 7 February 2014

Ms Entwistle sought her file from the Council.  I understand from Mr Holloway this was forwarded to Ms Entwistle on 14 February 2014.  In these circumstances I do not think it can be said Ms Entwistle was denied her right to an effective appeal because of the way the Council dealt with its disclosure obligations.

A different outcome

[45]     Ms Entwistle could not establish that she was the beneficiary of a periodic tenancy under ss 60A and 60B of the Act.  She has not provided any evidence that

would suggest Judge Hastings would have reached a different conclusion if he had the benefit of that evidence.

Unfair advantage

[46]     Ms Entwistle has not engaged a lawyer.  She has acted for herself.  She is clearly an intelligent woman, who presented her appeal in a commendably coherent manner.  Although she may feel disadvantaged by acting for herself, she has in fact not demonstrated any unfairness in the way her appeal was conducted.   Indeed, I have been impressed by the very conciliatory and accommodating way in which Mr Holloway has acted for the Council.

[47]     For these reasons, while the appeal in the District Court was conducted in an unusual procedural manner, Ms Entwistle was not denied an effective right of appeal.

Stay

[48]     I indicated in paragraph [4(2)] of this judgment that I would in all likelihood have declined Ms Entwistle a stay of Judge Hastings’ decision had I proceeded to deal with her case on the basis that she was seeking a stay.  I would have reached this conclusion by applying r 20.10 of the High Court Rules.

[49]     Although it is common to grant a stay where failure to do so would render appeal rights nugatory, this consideration is not totally determinative of stay applications.  It is appropriate in a case such as this to have regard to the strength of the proposed grounds of appeal,7  particularly as  Ms Entwistle’s appeal  must be confined to errors of law.  In my assessment, Ms Entwistle’s grounds of appeal are futile and that it is not in the interests of justice to prolong Ms Entwistle’s unrealistic

hopes.

[50]     I am, however, mindful that the effect of my decision will be to prevent

Ms Entwistle from continuing to occupy Unit 45.  Because of the significance of this

7      Body Corporate No 188529 v North Shore City Council (No 6) HC Auckland CIV-2004-404-

3230, 11 February 2009; Dymocks Franchise Systems (NSW) Pty Ltd v Bigola Enterprises Ltd
(1999) 13 PRNZ 48 (HC).

decision for Ms Entwistle, I will stay my decision from taking effect until 12 noon on 26 March 2014 to enable Ms Entwistle to find alternative accommodation.

Conclusion

[51]     Ms Entwistle’s appeal is dismissed.

[52]     Because of Ms Entwistle’s limited financial means I make no order as to

costs.

D B Collins J

Solicitors:

DLA Phillips Fox, Wellington for Respondent