Hooper v Bushill - [2024] NZHC 1070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001622

[2024] NZHC 1070

BETWEEN
ANDREW STUART HOOPER

Appellant

AND

REBECCA BUSHILL, SARAH BUSHILL, MATHEW ASPIN and COLIN STEWART

BOYER for the estate of Graham Stuart Bushill

Respondents

Hearing: 28 February 2024

Appearances:

Appellant in Person

Paul Murray for the Respondents

Judgment:

3 May 2024

JUDGMENT OF MOORE J

This judgment was delivered by me on 3 May 2024 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

HOOPER v BUSHILL & ORS [2024] NZHC 1070 [3 May 2024]

Introduction

[1] The genesis of this factually and procedurally complex matter is founded in a long running residential tenancy dispute between the appellant, Mr Hooper and the late Mr Bushill. The dispute went to the Tenancy Tribunal (“the Tribunal”) which, substantially, found in Mr Bushill’s favour. Mr Hooper did not like the result, particularly the award of costs made against him of almost $20,000. He decided to appeal to the District Court. For technical and procedural reasons, largely unconnected to the merits of the case, Mr Hooper failed in the District Court.

[2] This judgment deals with Mr Hooper’s attempts in this Court to reverse the District Court’s determination.

Background

[3] As signalled, the background and procedural history of these proceedings is complex and thus requires a reasonably detailed description to provide context. The following account is largely taken from the Tribunal’s judgment.

[4] In 2016, Mr Hooper entered into a tenancy agreement to rent a residential property in Pakuranga owned by Mr Bushill.

[5] Some months after the tenancy began, problems arose between Mr Hooper and Mr Bushill. This, together with Mr Bushill’s declining health, led him to appoint an agent to manage the property. Inspections were undertaken every three months or so. In April 2018, Mr Bushill died. Probate was granted to his two daughters and son-in- law, the respondents. In November that year, the respondents gave notice to Mr Hooper that the tenancy would terminate in mid-January 2019. Apparently, Mr Bushill’s widow intended to move in. That Mr Hooper and his family were required to find alternative accommodation shortly after the Christmas and New Year period still remains for him a source of resentment.

[6] Shortly before the tenancy expired, the respondents brought a claim in the Tribunal seeking rent arrears. Mr Hooper responded with a counterclaim seeking the repayment of all rent paid over the tenancy. The amount claimed exceeded the

jurisdictional limit of the Tribunal. The proceedings were thus required to be transferred to the District Court. Mr Hooper was required to file a statement of claim. He failed to do so. Six months after the proceedings were transferred, the respondents applied to strike out for non-compliance. A month later the Court directed Mr Hooper to file his papers. He failed to do so. An unless order was made. The statement of claim was eventually filed in July 2020. This…

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 Hooper v Bushill

Details

AGLC: Hooper v Bushill [2024] NZHC 1070
Case: [2024] NZHC 1070
Decision Date: 3 May 2024

CaseChat Overview and Summary

In Hooper v Bushill, the appellant, Mr Hooper, appealed against the decisions of Judge Clark in the Auckland District Court. The appeal stemmed from a long-running residential tenancy dispute with the late Mr Bushill, which had initially been decided by the Tenancy Tribunal in favour of Mr Bushill. Mr Hooper was dissatisfied with the outcome and sought to appeal to the District Court, but this appeal was unsuccessful due to procedural errors. The present appeal concerns the denial of leave to appeal the District Court’s decisions in this Court. The legal issues before the Court were whether Mr Hooper should be granted leave to appeal out of time both the November 2022 and July 2023 judgments of Judge Clark. The Court considered the principles governing the extension of time for appeals, including the length and reasons for the delay, the conduct of the parties, any prejudice or hardship to the respondents, and the significance of the issues raised by the proposed appeal. The Court found that the delay was significant and the reasons provided were inadequate. The conduct of Mr Hooper, particularly in light of the lengthy history of these proceedings, did not support a grant of leave. The respondents had already distributed the estate's funds and there was no available money to meet legal costs. Additionally, there was no issue of public importance engaged in this case. The merits of the appeal were also lacking, as the Judge’s reasoning was correct in law and the Court found no jurisdiction to hear the appeal. Consequently, the applications for extending time to appeal were dismissed.

Orders