Harding v Schellevis - [2021] NZHC 1265

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000378

[2021] NZHC 1265

BETWEEN
CLARE DINA HARDING

Appellant

AND

MONICA SCHELLEVIS (File no. 4223837) DAVID TAN and SAMANTHA TAN (File no. 425538)

ANDRIES GONSALVES CAROTO (File no. 4241288)

Respondents

Hearing: 19 May 2021

Appearances:

S Abdale for the Appellant Respondent A Caroto in Person

No Appearance for D Tan and S Tan (written submissions filed) No appearance for Ms Schellevis

Judgment:

1 June 2021

JUDGMENT OF WALKER J

This judgment was delivered by me on 1 June 2021 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

CLARE DINA HARDING v MONICA SCHELLEVIS & ORS [2021] NZHC 1265 [1 June 2021]

Introduction

[1] This is an appeal from a District Court decision dismissing an appeal from the Tenancy Tribunal. It concerns the interpretation of s 5(1)(n) of the Residential Tenancies Act 1986 (“the Act”). This section excludes the operation of the Act where the rented premises are principally used as the landlord or owner’s residence or a member of their family’s residence. If the Act is excluded it means that the Tenancy Tribunal has no jurisdiction to adjudicate disputes. It follows that this issue is important to prospective tenants and landlords alike.

[2] The appellant and her family own a two-level house with six bedrooms at 75 Aberley Road, Auckland. The upper level has four bedrooms, a kitchen, bathrooms and living area. The lower level has a living room, laundry and garage. The family generally occupy those areas. But there is also an area on the lower level comprising two bedrooms, a kitchenette, bathroom, laundry and living room. The respondents at various times occupied this area. They entered an agreement described as a “flat/house- sharing agreement”. The appellant characterises this as an occupation agreement to distinguish it from a tenancy agreement.

[3] For ease of reference, I call this area the “granny flat” to distinguish it from the rest of the house. The degree of separation and independence of the granny flat is contested by the parties.

[4]The notice of appeal presents the issue in these terms:

The Judge erred in law in determining that s 5(1)(n) of the Act did not apply to the occupation agreements entered into with the respondents, and that the jurisdiction of the Act therefore applied.

The Judge was wrong in law by defining “residential premises” to mean only that part of the single dwelling that the flatmates occupied, and not the entire single dwelling that is the appellant’s family home

[5] The operation of s 5(1)(n) of the Act is generally a question of mixed law and fact. But the issue before this Court is narrow because appeals to the High Court under the Act are limited to questions of law. To that extent, the jurisdiction is limited. It does not extend to an examination of the merits of the underlying dispute. Nor does it extend to revisiting the lower Court’s factual…

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 Harding v Schellevis

Details

AGLC: Harding v Schellevis [2021] NZHC 1265
Case: [2021] NZHC 1265
Decision Date: 1 June 2021

CaseChat Overview and Summary

The appeal in Harding v Schellevis concerns the interpretation of s 5(1)(n) of the Residential Tenancies Act 1986, which excludes the operation of the Act where the rented premises are principally used as the landlord or owner’s residence or a member of their family’s residence. The appellant, Clare Harding, appeals against a District Court decision that dismissed her appeal from the Tenancy Tribunal, which had found that the granny flat in her family home was subject to the Act. The appeal focuses on whether the granny flat is the residential premises at issue for the purpose of the Act or whether the family home (including the granny flat) is the residential premises.

The legal issue before the court was whether the granny flat is the residential premises at issue for the purpose of the Act or whether the family home, including the granny flat, is the residential premises. This is a question of law, and the court's jurisdiction is limited to an examination of the merits of the underlying dispute or revisiting the lower Court’s factual findings.

The court found that the granny flat was a separate and distinct household unit within the dwelling, with exclusive use by the respondents and no shared or common areas with the appellant or her family. The court agreed with the District Court Judge's conclusion that the relevant premises is the granny flat occupied by the respondents and not the entire dwelling. The court found no error of law by either the Adjudicator or the District Court.

The appeal is dismissed. If costs are sought, a memorandum of no more than 3 pages is to be filed within 21 days. As the respondents are litigants in person, costs claims are limited to out-of-pocket disbursements such as filing fees.

Orders