Grey v Housing Corporation of New Zealand HC Auckland CIV 2010-404-2242
[2010] NZHC 1680
•5 May 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-2242
UNDER Judicature Act 1908 and
AND UNDER the Residential Tenancies Act 1986
IN THE MATTER OF an appeal from a judgment of the District
Court
BETWEEN RICHARD GREY Appellant
ANDHOUSING CORPORATION OF NEW ZEALAND
Respondent
Hearing: 5 May 2010
Counsel:Appellant in person (with Mr Areta Ransfield as McKenzie Friend) Steve Haszard and Claire Paterson for Respondent
Judgment: 5 May 2010
[ORAL] JUDGMENT OF HUGH WILLIAMS J
The appellant’s appeal is dismissed and the interim order made by Stevens J on
23 April 2010 requiring Housing New Zealand to take no steps to enforce the possession order given by the Tenancy Tribunal on 6 April 2010 must be lapsed.
Solicitors:
Crown Solicitor, PO Box 2213 Auckland 1140
Email: Stev[email protected]
Copy for:
Richard Grey, 46 Paddington Street, Glen Innes, Auckland 1072. Areta Ransfield at Fax no. 09 570 4857
Judge A A Sinclair, District Court at Auckland.
Case Officer: SusanJan[email protected]
RICHARD GREY V HOUSING CORPORATION OF NEW ZEALAND HC AK CIV-2010-404-2242 5 May
2010
Issue
[1] In its form, so far as is able to be discerned from its rather opaque expression, this is an appeal against a finding by Judge Sinclair in the District Court that she had no jurisdiction to deal with an issue later discussed.
[2] The entituling of the appeal includes “Her Majesty the Queen” and “Sylvia Cartwright” (mis-spelt), a former Governor-General. They have no place in these proceedings and are struck out of the claim and of all documents prepared in relation to it.
[3] The Notice of Appeal says that a 90 day notice of termination of a tenancy cannot be separated from another application to terminate Mr Grey’s tenancy under s 55 of the Residential Tenancies Act 1986 (“the Act”).
[4] Perhaps indicative of the muddlement at the heart of this claim is that Mr Grey has also filed what is called an “... Interlocutory Application Inter Parties Under Urgency of Notice of Motion to Stay the Enforcement for Possession of the Tenancy Tribunal Decision ... ” relating to a decision of the Tenancy Tribunal delivered on 23 April 2010, later discussed, which relates to the s 55 application.
Background
[5] A little of the background needs to be recounted.
[6] It appears that Mr Grey and his partner Ms Reilly were initially tenants of the respondent Housing Corporation of New Zealand, up until 1991, of a property at
45 Paddington Street, Glen Innes, Auckland. Mr Grey said that property was altered at a cost of about $45,000 with funds provided by the Accident Compensation Corporation (“ACC”)to provide facilities for their son Richard who contracted meningitis.
[7] Since 1991 Mr Grey and Ms Reilly have lived at 46 Paddington Street, Glen Innes, the subject of the present application. Mr Grey says that since that date they have expended about $71,000 on the property, again sourced from ACC to provide facilities for their son Richard. Richard apparently and unfortunately contracted meningitis and died some five or six years ago. However, the expenditure of those sums on the properties has resulted, in Mr Grey’s view, in some form of co- ownership and it appears that may perhaps lie behind part at least of the present dispute.
[8] This dispute, however, relates to 46 Paddington Street and it is necessary to separate out the various strands of litigation between these parties that relate to that address. One of the paradoxes of parallelism is that although parallel lines appear to meet in the distance, in fact they never do so. And it is that phenomenon which seems to lie at the heart of the present appeal.
[9] There are three separate strands of litigation in existence between these parties.
[10] Because the third is relatively uncomplicated, it may be mentioned simply to dismiss it. That is an application Housing New Zealand made to the Tenancy Tribunal under s 55(1)(a) on 28 March 2010 for an order terminating Mr Grey’s tenancy of 46 Paddington Street on the basis that the rent was in arrears. That application came before the Tenancy Tribunal on 1 April 2010 but was adjourned to
27 April 2010. On that date it was heard but the application adjourned. Accordingly that strand remains in existence between the parties in the Tenancy Tribunal and on the basis that the application is adjourned. Ultimately, therefore, that factor alone might result in determination of Mr Grey and Ms Reilly’s tenancy of 46 Paddington Street.
[11] The two remaining strands of litigation – the claimed intertwining between which is really at the nub of the current application – relate, first, to an application by Housing New Zealand against Ms Reilly and Mr Grey under s 51 to terminate their tenancy on 90 days notice and, secondly, an application between the same parties
under s 55 of the Act as a result of Housing New Zealand alleging that Mr Grey threatened to assault officers of the Corporation and caused damage to the property.
[12] It is central to this appeal that those two strands of litigation be recognised as being separate; although of course they might have the same result ultimately, namely termination of Ms Reilly and Mr Grey’s tenancy at 46 Paddington Street, pursuant to one statutory provision or the other.
[13] Turning to the s 51 application. On 3 December 2009 Housing New Zealand gave Mr Grey and Ms Reilly the standard notice under s 51(1)(d) of the Act to terminate their tenancy. The letter says, as is agreed, that the 90 day period of notice given by that letter terminated on 3 March 2010. Pursuant to s 51(1)(d) any landlord can terminate a tenancy by notice of 90 days without giving any reasons for wishing so to do. It is necessary, of course, for the landlord to comply with the remaining provisions of s 51 but they are of no importance in the present case.
[14] That notice expired, as mentioned, on 3 March 2010 and on that date the litigation between these parties came before District Court. Judge Sinclair, whose reasons for judgment were delivered on 10 March 2010, found that the District Court had no jurisdiction to entertain the challenge filed by Ms Reilly or Mr Grey to strike out that notice. Any jurisdiction in that regard, she held, was exclusively within the province of the Tenancy Tribunal pursuant to s 82(1) of the Act.
[15] The Judge’s reasons for judgment note she explained the position to Mr Grey who appeared on that occasion. She made clear to him that in relation to the 90 day notice proceeding which was raised before her on that day – although of course not formally part of the litigation which was about the s 55(1)(d) notice – if there were to be any challenge, it had to be commenced in the Tenancy Tribunal. The Judge referred to a decision of this Court in McLeod v Housing New Zealand Corporation[1] but held that to be inapplicable – a comment with which this Court agrees.
[1] McLeod v Housing New Zealand Corporation HC Auckland M256-SW02, 19 July2002.
[16] As a result of that, the Judge held[2]:
[2] Grey and Reilly v The Queen & Ors DC Auckland CIV-2010-004-218, 10 March 2010
[9] For the reasons set out above, Mr Grey’s application to strike out the
90 day notice is misconceived and this Court has no jurisdiction to hear the matter. The application is dismissed accordingly.
[17] At the present time, apart from this appeal challenging the correctness of Judge Sinclair’s view, no further action as far as is known has been taken by either tenant to challenge the 90 day notice under s 51.
[18] The second strand of litigation between these parties commenced on
16 December 2009. On that date Housing New Zealand Corporation applied to the Tenancy Tribunal to terminate the tenancy of 46 Paddington Street under s 55(1)(b) and (c) of the Act. The application asserted that Mr Grey had broken windows in the property – an allegation he seems to accept – and that there had been a confrontation between Housing New Zealand Corporation officers and Mr Grey as a result of which the officers felt threatened.
[19] That application came before the Tenancy Tribunal on 8 January 2010. It was granted. The Tenancy Tribunal set out its reasons for the decision including the breaking of the windows and the confrontation between Mr Grey and the staff. The Tenancy Tribunal ordered that the tenancy be terminated and possession granted to Housing New Zealand at 5:00pm that day.
[20] They were not required to vacate on that day but, as set out in the chronology regarding its evidence, Housing New Zealand said that during 8 January 2010 it handed the tenants a letter requiring vacation by 4:00pm on 13 January 2010.
[21] On 13 January, however, Ms Reilly filed a notice of appeal against the s 55 decision of 8 January and followed that up a week later with an application for a stay of execution and then, on 2 February 2010, with an application for an interim injunction.
[22] On 3 February, Judge Harvey in the District Court ordered an interim stay of execution and directed that the eviction process, due to be carried out that day, be put on hold. That order was extended on 9 February 2010 pending determination of the appeal filed by Mr Grey against the s 55 decision that day.
[23] The appeal came on for hearing initially on 1 March 2010 but was unable to proceed through lack of a transcript and the matter was dealt with by Judge Sinclair, by way of adjournment, on 3 March. It now appears that that application has finally come to a hearing before Judge Hubble on Monday of this week, 3 May 2010. The Judge’s decision remains reserved, largely because the Judge wishes to be able to assess the position of the parties having regard to the decision of this Court on the current appeal.
[24] Of the remaining chronology in relation to the s 55 application, it is necessary only to note the terms of the Tenancy Tribunal’s decision of 6 April 2010 which would have granted possession on 23 April 2010. It is unnecessary to recount the terms of that decision but it is a fully reasoned decision extending over several pages.
[25] The result of that, therefore, is that this appeal challenges Judge Sinclair’s finding that the District Court had no jurisdiction to hear any challenge to the 90 day notice provision because any challenge in that regard had to be directed to the Tenancy Tribunal. The notice terminating Mr Grey’s tenancy has therefore expired and the tenancy is at an end. If this appeal against Judge Sinclair’s finding of
3 March 2010 that the District Court lacked jurisdiction in relation to the 90 day notice is upheld, there will be nothing preventing Housing New Zealand re-taking possession of 46 Paddington Street.
[26] On the other hand, and separately, the appeal to the District Court challenging the Tenancy Tribunal’s 8 January 2010 decision on the s 55 application has been heard and a decision remains reserved. That means Mr Grey’s tenancy has been terminated by the Tenancy Tribunal’s 8 January 2010 order but a challenge to that has been heard by Judge Hubble. However, Housing New Zealand’s right to re-
take possession of 46 Paddington Street under the 8 January 2010 order is precluded by orders of the District Court staying execution.
Submissions
[27] The submissions filed by Mr Haszard, leading counsel for Housing New Zealand, carefully set out the parallel proceedings between these parties to reach the conclusion that Judge Sinclair’s decision was correct and accordingly the District Court had no jurisdiction to deal with the s 51 90day notice matter and accordingly Mr Grey’s appeal should be dismissed.
[28] Mr Grey filed careful submissions, assisted by his McKenzie Friend, Mr Ransfield. They dealt, in large measure, with the history of the matter, Mr Grey and Ms Reilly’s expenditure of money on the property and their assertion of consequent co-ownership. Their submissions raised issues discussed in McLeod but, as earlier mentioned, that appeal dealt with different issues and is not of assistance in deciding this matter.
[29] The nub of the present appeal, as has already been outlined, is that there is separate and parallel litigation between these parties. The main issue raised by Mr Grey and Mr Ransfield is that the latter posed rhetorically “How can a tenancy be terminated by the Tenancy Tribunal when a 90 day notice is running, designed to terminate the tenancy?”. Again the two, he submitted, cannot act together. He was also critical of Housing New Zealand allegedly failing to tell the Tenancy Tribunal on 8 January that it had issued a 90 day notice - but that does not bear on the merits of the matter.
[30] The answer to the rhetorical question posed by Mr Ransfield is, as has already been noted, that the litigation between these parties runs in three separate but parallel streams. Even though they may all result in the same ultimate finding, namely, an order for possession of 46 Paddington Street under s 64, that is coincidental. There is nothing to suggest that the 90 day notice of termination issued under s 51 was in some way affected by the s 55 notice seeking termination of the tenancy for alleged assault, still less is there any connection with those proceedings
and the claim for possession for arrears of rent. The three simply are separate. There is no basis for suggesting that the 90 day notice application under s 51 affects the s 55 application or vice versa.
[31] On that basis, therefore, Judge Sinclair was correct in the decision she reached, and this appeal must be dismissed. That means, unfortunately, that there may be a prolongation of the already lengthy litigation between these parties, but there seems no way to avoid that possibility.
[32] In light of all of that, the formal orders of the Court are that the appellant’s appeal is dismissed and the interim order made by Stevens J on 23 April 2010 requiring Housing New Zealand to take no steps to enforce the possession order given by the Tenancy Tribunal on 6 April 2010 must itself be lapsed.
.................................................................
HUGH WILLIAMS
5 May 2010
0
0
0