Franicevic v KGH Trust

[2016] NZHC 1441

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-449 [2016] NZHC 1441

IN THE MATTER

of an appeal against a determination of the

Tenancy Tribunal

BETWEEN

JENNIFER ANNE FRANICEVIC Appellant

AND

KGH TRUST Respondent

Hearing:	28 June 2016
Counsel:	No appearance of Appellant A R Davie for Respondent
Judgment:	29 June 2016

JUDGMENT OF WILLIAMS J

[1]      Ms Franicevic has filed a notice of appeal against the decision of the District Court declining her appeal from a decision of the Tenancy Tribunal.  In the Tenancy Tribunal decision, the adjudicator found that a 90 day (without cause) notice to terminate her residential tenancy had been validly served and was effective.  In the District Court, Judge Davidson upheld that finding on appeal.

[2]      Ms Franicevic having appealed to this Court, now seeks a stay of the District Court judgment.  The 90 day termination period ends today (Wednesday 29 June).  I am required to deal only with the stay application.

[3]      I set the matter down for 2.45pm yesterday (Tuesday 28 June) in light of the urgency involved.   Ms Franicevic was advised of the fixture by email on Monday

27 June at 2.40pm.

FRANICEVIC v KGH TRUST [2016] NZHC 1441 [29 June 2016]

[4]      The Court convened at the appointed time, and by approximately 3.10pm yesterday Ms Franicevic had still not appeared.   I then invited submissions from Mr Davie, for the Trust.  Having heard from him, I dismissed the application for stay in open court and awarded costs of $200 plus disbursements.   I indicated brief reasons would follow.

[5]      While  it  is  appropriate  to  dismiss  the  stay application  on  the  basis  that Ms Franicevic, having been given every opportunity to do so, failed to appear in support of her application, it is worth discussing in very brief terms the potential merits of her stay application.

[6]      Section 119 of the Residential Tenancy Act 1986 provides that appeals to this Court from the District Court are on a question of law only.   The grounds upon which Ms Franicevic appeals are most clearly articulated in her “second memorandum” of 27 June 2016. They may be distilled to four grounds:

(a)       The  Trust’s  witnesses  lied  and  the  adjudicator  should  not  have

believed them.

(b)      The applicant was denied her right to cross-examine Trust witnesses. (c)      The person who was a support person for the Trust was allowed to

give evidence.

(d)Evidence given by the Trust was hearsay as it was not provided in written form.

[7]      None of these grounds raises a question of law.  Rather, they are attempts to revisit the Tenancy Tribunal adjudicator’s factual findings which were upheld on appeal in the District Court, and that is not permitted.  This is most obviously seen in ground (a).

[8]      As  to  ground (b), there  is  no  right  of cross-examination  in  the Tenancy Tribunal.  As far as I can tell, no cross-questioning of any kind is permitted between parties in dispute.

[9]      Turning to ground (c), although the adjudicator referred to the Trust having support persons at the hearing, it is clear that the two Trust representatives at the hearing were in fact intended to be witnesses and no issue of law or procedure can arise as a result of that apparent confusion on the part of the adjudicator.

[10]     Finally, the evidence given by Mr Green for the Trust who served the 90 day notice was not hearsay, and no issue of law can arise in that respect either.

[11]     The long and short of it is that even if Ms Franicevic had appeared, there would have been no proper basis upon which a stay could have been granted given the presumption that the Trust is entitled to the fruits of the judgment it received in the District Court and in light of the likely merits of the appeal.

[12]     I finally note that I was advised late yesterday that Ms Franicevic visited the Registry some time after the hearing.  She was advised of the outcome.  She said that she had no notice of the hearing because she had not checked her emails.  This is somewhat surprising given the fact that she was aware that the notice period expired today.  In any event, my decision was issued and must now stand.

Williams J

Solicitors:

Treadwells, Barristers & Solicitors, Wellington for Respondent