Mokaraka v Ted Ingram Property Services Limited t/a Ray White

[2014] NZHC 1741

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-874 [2014] NZHC 1741

BETWEEN

LOUISE SHIRLEY MOKARAKA

Appellant

AND

TED INGRAM PROPERTY SERVICES LIMITED T/A RAY WHITE

Respondent

Hearing:	22 July 2014
Appearances:	Appellant in person No appearance by Respondent
Judgment:	25 July 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Friday 25 July 2014 at 10.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Copy to:

The Appellant

Ted Ingram Property Services Limited

MOKARAKA v TED INGRAM PROPERTY SERVICES LIMITED T/A RAY WHITE [2014] NZHC 1741 [25

July 2014]

[1]      This judgment relates to Ms Mokaraka’s purported appeal against a decision of the District Court declining her appeal from the Tenancy Tribunal.  The Tribunal’s decision had the effect of terminating her tenancy for non-payment of water rates. She has now not lived in the relevant property for nearly a year and has found alternative accommodation.   The Tribunal ordered that the $1,200 in outstanding water rates were to be met out of Ms Mokaraka’s bond.

[2]      As I understand it, her appeal is not, however, concerned with that aspect of the Tribunal’s decision but rather (counter) claims by Ms Mokaraka against the landlord for failing to effect certain repairs during the tenancy, for faulty wiring and for failure to rid the property of the feral cats that had taken up residence under the house.

[3]      For the assistance of Ms Mokaraka and of any other Tribunal or court that may have to consider these matters I propose to set out the history of the appeal in some detail.  It is a little complicated and has taken some time to ascertain.

[4]      Although Ms Mokaraka’s notice of appeal was dated 28 February 2014 it was not filed in this Court until 14 April 2014.   As I have said, it purports to appeal against a decision of the District Court dated 17 February 2014 declining her appeal from the Tenancy Tribunal.  It is therefore out of time.

[5]      The appeal was first called in the Civil Appeals list on Tuesday 6 May 2014. Ms Mokaraka did not appear on that day and I was later advised that she had gone to the District Court in error.  The matter was accordingly called again in the list on 13

May.

[6]      On that  day Mr Miru sought  to  speak  on  behalf  of Ms  Mokaraka,  who appeared not to be well.   He advised that he appeared as a “Maori agent” on her behalf.   He advised that the notice of appeal had been personally served on Ray White Real Estate in Papakura the previous evening.   He also handed up some material that he said explained the delay in filing the appeal.

[7]      Because service of the appeal had (apparently) only just been effected, and in order to give the appellant time to file further material (including the decision under appeal), the matter was adjourned to the Civil Appeals List on 27 May 2014.  I also directed that a copy of my minute be faxed by the Registrar to Ray White Papakura. No steps have, however, been taken by the respondent in relation to the appeal.

[8]      When the appeal was called on 27 May 2014 Mr Miru appeared again to speak on behalf of Ms Mokaraka, who was present in Court. As I understood it from the material filed and from Mr Miru, Ms Mokaraka is suffering from some form of mental and/or physical condition which means that she sometimes has difficulty speaking for herself.

[9]      In the course of the call I discussed with Mr Miru what I perceived to be

some difficulties in relation to Ms Mokaraka’s appeal.

[10]     First, I advised Mr Miru that it did not appear to me that he was able to speak on Ms Mokaraka’s behalf as he is not a lawyer.  In particular, I said that his advice to me at the last callover that he was appearing as a “Maori agent” under the Lawyers and Conveyancers Act had turned out to be not quite correct.   Although “Maori agents” were recognised under previous legislation governing legal practitioners, those provisions are no longer in force.  In any event they would not have conferred on Mr Miru a right of audience.

[11]     Mr Miru advised that he had become aware that this was the position and that he relied instead on the Fair Trading Act 1986.  I have not looked at the section to which he referred me but am doubtful that it has the effect he says.  In light of the matters that follow, however, I do not propose to determine the matter on that basis.

[12]     Secondly, I said that having now read all the papers he had filed it appeared to me that Ms Mokoraka was seeking to appeal a decision of the Tenancy Tribunal. That was because no decision of the District Court (dated 17 February or otherwise) had been filed.

[13]     Mr  Miru  advised,  however,  that  there  had  in  fact  been  a  District  Court decision and it was this that Ms Mokoraka wished to appeal.  While he did not have a copy of the District Court decision, he advised that the Judge concerned was Judge Andree Wiltens.   He said that it was his understanding that the decision involved simply a one line dismissal of Ms Mokoraka’s appeal from the Tenancy Tribunal.

[14]     I advised Mr Miru that I would ask that inquiries be made of the District Court at Manukau with a view to obtaining a copy of the decision.  In light of the need for further investigation I told Mr Miru that I would have to place the matter again in the Civil Appeals  List on Tuesday 24 June 2014 at 9  am.   As it has transpired, however, that further call was delayed until today (22 July 2014).

[15]     The inquiries that were subsequently made revealed that there were a number of relevant decisions.  I outline these below.

[16]     First, the substantive hearing before the Tenancy Tribunal took place 12 June

2013.   As I have said, the Tribunal terminated the tenancy and ordered that the outstanding water rates (approximately $1,200) be met from Ms Mokaraka’s bond. The Tribunal noted that Ms Mokaraka had “concerns about repairs not attended to at the premises” but said that she would need to make a separate application if she wished to have those issues heard.

[17]     Ms Mokaraka immediately filed an appeal against that decision but, on 19

June 2013, Judge Sinclair invited her to withdraw that appeal and apply instead for a rehearing in the Tribunal.  In making that suggestion, the Judge reiterated that if Ms Mokaraka wished to pursue the issue of the repairs she would need to file separate proceedings in the Tribunal.

[18]     Ms  Mokaraka  then  withdrew  the  appeal  and  made  the  application  for rehearing, on the grounds that:

(a)       There was a relevant fax that had not been received by the adjudicator before the hearing;

(b)      There were repair issues that should be addressed;

(c)       The Residential Tenancies Act did not have “constitutional standing”;

(d)      The water companies had no right to supply (or charge for?) water. [19]       The application for a rehearing was heard and dismissed by the Tribunal on 8

August.   In dismissing the application the Tribunal noted that it had received and taken into account the fax referred to in (a).  It restated its earlier position about the repair issues and essentially said it had no jurisdiction to consider issues (c) and (d).

[20]     Ms Mokaraka then appealed that (rehearing) decision.  The appeal was heard by Judge Phillips on 11 November 2013.   Ms Mokaraka did not appear at the hearing. The Judge upheld the Tribunal’s decision.

[21]     It seems that the substantive (12 June) appeal was somehow reactivated and that matter came before Judge Blackie on 17 January 2014.  Again, Ms Mokaraka did not appear and, at the request of the respondent’s counsel, the Judge granted an adjournment.  In doing so he said “If there is no appearance next time, obviously the appeal will be struck out”.

[22]     On 14 February the appeal was called before Judge Andree Wiltens.  It seems Ms Mokaraka did appear but may not have been able to make submissions.  In any event, the Judge issued a one sentence decision dismissing the appeal.  No reasons were given. That is the decision Ms Mokaraka now wishes to appeal.1

[23]     The appeal was called again in the list today and Ms Mokaraka was assisted by her partner, Mr Underhill.  I discussed with them both the difficulties with which this Court was faced in relation to the appeal.  I also asked Ms Mokaraka carefully to consider whether, in light of the fact that it seems she has now found alternative, superior, accommodation, whether she wished to pursue the matter.   However she

said (and I accept) that the portion of the bond that she had been required to forfeit

1      In Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, (2000) 18 CRNZ 55 (CA) the Supreme Court confirmed obligation to give reasons is not absolute, and in light of the other, fundamental, difficulties I perceive with the appeal I do not consider that the omission would warrant allowing the appeal in this case.

was, for her, considerable, and that she did still wish to make a claim against the landlord in relation to the defective stove and other similar matters.

[24]     In terms of the appeal itself, I explained to Ms Mokaraka that it seemed to me that the Tribunal was right when it said that, because she had not filed a formal claim in relation to the repair and related issues, those issues were not properly before it. And because the Tribunal could not and did not (for that reason) determine her claim there really was nothing for her to appeal and no assistance that this Court could give.  As both the Tribunal and Judge Sinclair said, the appropriate course is for her

to file a separate claim in the Tribunal, if that option remains open to her.2

[25]     I also record (although did not discuss with Ms Mokaraka this morning) the further difficulties she faced in the present matter arising from the fact that her appeal was filed out of out of time and that under s 119 of the Residential Tenancies Act appeals from the District Court  to this court are limited to questions of law.

[26]     Accordingly in my view this Court has no option but to dismiss the present appeal.  In saying that, I acknowledge that the issues raised by it are important to Ms Mokaraka and that she feels hard done by.  But as I have said, if she wishes to pursue those issues she will need to file a new claim in the Tenancy Tribunal, if she can.

[27]     I trust that my traversal of the history of the matter above will be of some assistance to her.  Copies of the relevant District Court decisions are attached to this

decision for her information and future use.

Rebecca Ellis J

2      I do not know what, if any, time limits (or other restrictions) might apply in relation to the lodging of such a claim. I urge Ms Mokaraka to seek some advice about this.

IN THE DISTRICT COURT AT MANUKAU

CIV-2013-092-002625

BETWEEN

LOUISE SHIRLEY MOKARAKA

Appellant

AND

TED INGRAM PROPERTY SERVICES LIMITED T/A RAY WHITE

Respondent

Hearing:	11 November 2013
Appearances:	No appearance by or for the Appellant S Hall for the Respondent
Judgment:	11 November 2013

ORAL JUDGMENT OF JUDGE K J PHILLIPS

[1]      This is a matter under CIV-2013-092-002625.   It is an appeal under the tenancy legislation  made  by  Louise  Shirley Mokaraka  against  a  decision  of  the Tenancy Tribunal where the respondent is Ted Ingram Property Services Limited. The appeal is in relation to a decision made by the Tribunal dated 8 August 2013 in relation to her application for a re-hearing of an earlier decision.

[2]      The file in respect of the matter was made available to me early this morning. I have had time to read the transcript of the hearings by the Tenancy Tribunal both the substantive hearing and the record or the re-hearing.

[3]      I note that on 12 June 2013 the Tribunal made an order for the termination of the tenancy; payment of outstanding water rates and repairs, from the bond paid under the tenancy between the appellant and the respondent.

[4]      Ms  Mokaraka,  on  17  June  2013,  lodged  a  notice  of  appeal  against  that decision.  Following a hearing in front of Judge Sinclair the appeal was withdrawn. The appellant then applied for a re-hearing on the basis:

(a)       That the adjudicator had not received a fax sent prior to the hearing.

(b)That  there  were  maintenance  and  repair  issues  at  the  tenanted premises.

(c)       That the Residential Tenancies Act 1986 did not have the correct constitutional standing.

(d)      That the water company supplying water had no right to do so.

[5]      The Tenancy Tribunal’s decision on the re-hearing application held that it had considered the fax in question at the original hearing.   I accept that unilaterally. I have read the transcript of the original hearing and it is clear that the Tribunal did consider the fax.

[6]      In relation to the outstanding issues of repairs and maintenance, it simply was not before the Tribunal.  It is not a matter on this appeal as it is a separate issue.  The appellant needs to make a separate Tenancy Tribunal application.  She has been told by Judges and by the Tribunal to do so; she has not.

[7]      In relation to the Residential Tenancies Act it is a statute that has been duly passed and promulgated by our Parliament.  It is the law of New Zealand and sets out the rights and responsibilities of landlords and tenants and provides for a resolution of dispute process including the Tenancy Tribunal (and the appeal that I am conducting at the present moment in time).  The objection by Ms Mokaraka in relation to the Act has no base here today at all.

[8]      In relation to the water rates, whether the water companies can charge rates is not a matter for me on appeal.  Neither was it a matter for the Tenancy Tribunal.  The water rates issue, as regards to the sums of money due in the terms of the tenancy agreement, is a separate issue altogether.

[9]      I do not see that the Tribunal erred in any way in the decision that it made. Ms Mokaraka did not have any grounds for a re-hearing of the Tribunal’s decision.

[10]     Even if I was satisfied and found that the Tribunal had made an error on a factual issue it would not have established the necessary “miscarriage of justice” grounds.  Ms Mokaraka may be unhappy with the decision of the Tribunal.  That is a matter for her but on the basis that:

(a)       she has not bothered to attend this appeal hearing, and that

(b)      there are no grounds to set aside the decision of the Tenancy Tribunal, the appeal is refused.  I make no order for costs.

K J Phillips

District Court Judge

IN THE DISTRICT COURT AT MANUKAU

CIV-2013-092-002625

BETWEEN

LOUISE SHIRLEY MOKARAKA

Appellant

AND

TED INGRAM PROPERTY SERVICES LIMITED

Respondent

Hearing:	17 January 2014
Appearances:	No appearance by or for the Appellant S Hall for the Respondent
Judgment:	17 January 2014

ORAL JUDGMENT OF JUDGE C S BLACKIE

[1]      In   this   case   between   Louise   Shirley   Mokaraka   as   appellant   and Ted Ingram Property Services Limited as respondent, there is no appearance by the appellant, whereas the respondent is represented today by Mrs Hall.

[2]      By email, Mrs Hall had earlier sought an adjournment of the proceedings on the basis that the person who really needs to be present at the hearing is currently overseas.  I could not grant the adjournment simply on correspondence, as there had been no contact made by Miss Mokaraka.   Therefore, the hearing proceeded as scheduled.

[3]      However, as Miss Mokaraka is not present today, I am able to grant the application for adjournment and accordingly, the matter is adjourned to a further hearing date to be set by the registrar.

[4]      I cannot give you the actual date today, because I do not have access to the schedule.  I see it has been through the hoops a couple of times already? [It has been]

You have not heard from this lady, I take it?  [No]  If there is no appearance next time, obviously the appeal will be struck out.

[5]      Thank you for coming this morning.  I am sorry I could not deal with it, but if you had been able to contact Miss Mokaraka and got a consent, I can deal with it on the papers, but I cannot otherwise.

C S Blackie

District Court Judge