McLeod v Housing New Zealand Limited Ca248/01

[2001] NZCA 405

IN THE COURT OF APPEAL OF NEW ZEALAND CA248/01

BETWEEN	PATRICIA TUI MCLEOD
Appellant

AND	HOUSING NEW ZEALAND LIMITED
Respondent

Hearing:	10 December 2001
Coram:	Gault J Keith J Blanchard J
Appearances:	Appellant in person S N Wilson for Respondent
Judgment:	12 December 2001

JUDGMENT OF THE COURT DELIVERED BY GAULT J

1. The applicant, Ms McLeod, seeks leave to appeal for a third time under s120 of the Residential Tenancies Act 1986 (“the Act”) against a decision of the Tenancy Tribunal.

2. On 29 November 1999 Housing New Zealand Ltd, the respondent, applied to the Tenancy Tribunal for an order that Ms McLeod pay rent in arrears (under s77(2)(k) of the Act), an order terminating her tenancy (s55) and an order that bond moneys be paid to Housing New Zealand (s22).  The Tribunal granted all the orders sought in its decision of 14 February 2000.  Ms McLeod’s appeal to the District Court was dismissed.  Her further appeal to the High Court was dismissed on 16 July 2001 by Penlington J.  On 10 September 2001 Laurenson J refused to grant Ms McLeod leave to appeal under s120 of the Act to this Court against Penlington J’s decision.

3. Ms McLeod has applied to this Court for special leave to appeal against the judgment of Laurenson J refusing her leave to appeal from the judgment of Penlington J.  There is no appeal from a decision refusing leave to appeal so we have treated the application as one seeking special leave to appeal further from the judgment of Penlington J.  That application was made after the time for doing so had expired but we allow further time.

4. It was made clear to Ms McLeod at the beginning of the hearing that we were to hear her application for leave to appeal, not her substantive appeal.

5. The Residential Tenancies Act 1986 is quite clear.  There is a further appeal to this Court only on special leave which may be granted if the Court is of the opinion that the proposed appeal involves a question of law that, because of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision (s120).

6. The first appeal from the Tenancy Tribunal to the District Court dealt with three issues.  The first was whether the rent payable by Ms McLeod was in arrears for 21 days at the date of application to the Tribunal.  Judge McElrea found that it was and that under s55(1) of the Act the Tribunal was required to make an order terminating the tenancy.  The second issue was whether the Judge should exercise his discretion under s55(2) to withhold an order of termination.  He held he was not able to do so because he was not satisfied the breach had been remedied.  The third point at issue is whether Ms McLeod was entitled to a credit in respect of an earlier tenancy which would have eliminated the arrears of rent.  The Judge held that there was no such credit to which Ms McLeod was entitled.

7. An appeal to the High Court was available to the extent that the decision of the District Court Judge was “erroneous in point of law”.  Notwithstanding that limited right, Penlington J in the High Court reviewed a number of matters argued before him going beyond issues of law arising from the District Court judgment.  He dismissed the appeal.

8. Laurenson J, on an application for leave to appeal to this Court, was satisfied that no question of law had been identified and he refused leave.

9. In this Court Ms McLeod was asked to identify questions of law arising out of the judgments in the courts below which she wished to argue in this Court.  She mentioned four matters.  We will deal with them in turn.

10. The first point she wishes to argue is that the courts below misinterpreted s55(2) of the Act which, when correctly construed, precludes the power to order termination of a tenancy if the breach has been remedied.  That is not what the section says and, in any event, it has been found as a fact that the breach was not remedied in this case.

11. The second point is said to be that the power to order termination of a tenancy cannot be exercised if an order is made under s77(2)(k) requiring payment of moneys owing by the tenant to the landlord.

12. The third point is that the finding that Ms McLeod was not entitled to a credit of $245 from a previous tenancy was made without considering additional evidence that was available.

13. The fourth point is admittedly new.  It is an attempt to broaden the issues to encompass matters not dealt with in the courts below.  We have no power to grant special leave to raise such matters.

14. We have already commented on the first and fourth points.  They are not appropriate for a third appeal.  The second point has no prospect of success.  It has no basis in the words of the Act and is without merit.  The third point is not a question of law.  It seeks to review a finding of fact.

15. We are not satisfied that there is any question of law of general or public importance arising from the decisions in the courts below.  The application for special leave is refused.

Solicitors

Simpson Grierson, Auckland, for Respondent