Noble v Simons
[2020] NZCA 259
•26 June 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA39/2020 [2020] NZCA 259 |
| BETWEEN | ROBERT CHARLES NOBLE |
| AND | GRAEME LESLIE SIMONS |
| Court: | Miller and Clifford JJ |
Counsel: | Applicant in person |
Judgment: | 26 June 2020 at 10 am |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
[1] This is an application by Mr Noble, pursuant to s 120 of the Residential Tenancies Act 1986 (the Act), for special leave to bring a second appeal on a question of law against a decision of the High Court upholding determinations of the Tenancy Tribunal and the District Court.[1]
[1]Noble v Simons [2018] NZDC 26672 [District Court appeal]; Noble v Simons [2019] NZHC 2438 [High Court appeal]; and Noble v Simons [2019] NZHC 3242 [High Court leave decision].
[2] Section 120(3) of the Act provides that this Court may grant leave if, in its opinion, the 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. Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the Court below.[2]
Background
The claims to the Tribunal
[2]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
[3] Between November 2016 and May 2017 Mr Simons was a tenant in a property owned by Mr Noble. During the period of that tenancy, Mr Noble was endeavouring to sell the property. Mr Simons knew that was Mr Noble’s intention when he entered into the tenancy agreement. Mr Simons formed the view, however, that Mr Noble’s attendances at the property went beyond what was reasonable or agreed. Having himself found a house to buy, he gave notice terminating his tenancy.
[4] Subsequently Mr Simons brought a damages claim in the Tenancy Tribunal against Mr Noble, based on Mr Noble’s alleged breach of his right of quiet enjoyment. Mr Noble then claimed unpaid rent from Mr Simons.
[5] The Tribunal upheld Mr Simons’ claim for damages, but dismissed Mr Noble’s claim for rent arrears.
[6] In upholding Mr Simons’ claim, and making a global award of exemplary damages totalling $2,250, the adjudicator said:[3]
In the almost seven years I have been a Tenancy Tribunal adjudicator, this is one of the worst, if the not the worst case, of sustained harassment that I have seen. I order the Landlord to pay the Tenant $2,250.00 in this regard. Had the Tenant not limited his claim to $2,250.00 I would have awarded nearly the maximum or the maximum amount of exemplary damages allowed, which here would have been $3,000.00.
Appeal to the District Court[4]
[3]Pursuant to the Residential Tenancies Act 1986, ss 38(3), 48(4), 109 and sch 1A.
[4]Appeals to the District Court from decisions of the Tenancy Tribunal generally proceed by way of rehearing.
[7] On appeal to the District Court Judge Neave was satisfied, on the facts, the award of damages against Mr Noble was appropriate. In doing so, and to bring the “global” award within the separate caps found in sch 1A for such awards under ss 38 and 48 of the Act, the Judge made separate awards under both sections within the statutory caps, but, together, equalling the global award made by the Tribunal.[5]
[5]District Court appeal, above n 1, at [22].
[8] The decision on the rental arrears claim needs a little explanation. Mr Noble had based that claim for unpaid rent on Mr Simons’ having given an initial notice of termination, nominating Sunday 30 May as the date the tenancy would end. That notice was in error: 30 May was not a Sunday and, in any event, Mr Simons had originally intended to terminate his tenancy on 30 April. Mr Simons gave a subsequent notice, terminating his tenancy as at 14 May, and made his final rent payment on that basis. Mr Noble said Mr Simons was bound by his first notice. The Judge accepted Mr Noble should have, but had not, applied under s 51(7) of the Act for consent — first from Mr Noble and then, if Mr Noble refused, from the Tribunal — to vary his notice. The Judge was satisfied, however, Mr Noble could have applied at the hearing for after the fact approval. Moreover, if he had done so, the Judge was satisfied that application would have been granted.[6] The Judge upheld the Tribunal’s decision accordingly.
First appeal on a question of law
[6]At [37]–[38].
[9] Mr Noble’s right of appeal to the High Court was limited to questions of law. Having noted Mr Noble had difficulty framing his appeals as questions of law, Dunningham J identified those questions as whether the District Court had been correct to dismiss Mr Noble’s challenge to the award of damages against him and to dismiss his claim for rent arrears.[7] Dunningham J determined the answer to both of those questions was, in substance, yes.[8]
[7]High Court appeal, above n 1, at [27].
[8]At [56]–[57].
[10] As regards Mr Simons’ damages claim, she did so, as had the District Court, on the basis that the factual evidence on which that claim was based was clearly sufficient.[9]
[9]At [30]–[37].
[11] On the question of rent arrears the Judge found, contrary to Judge Neave, that the second notice of termination had been validly given and served. Thus, whilst the Judge had been in error in the way he upheld the Tribunal’s decision, nevertheless the outcome was not affected.[10]
Application to High Court for leave
[10]At [51]–[52].
[12] Mr Noble sought leave of the High Court to bring a second appeal on two proposed questions:[11]
Before awarding punitive damages, is the Tribunal required to find as a fact the party acted intentionally and flagrantly disregarded the other party’s rights?
Is a party that is given notice to terminate a tenancy that complies with the requirements of s 51(3) entitled to issue an amended notice to terminate a tenancy notwithstanding s 51(6) or s 51(9) and the prejudice to any party?
[11]High Court leave decision, above n 1, at [6] (reordered and footnote omitted).
[13] On the award of damages to Mr Simons, the Judge referred to the terms of s 109.[12] For there to be an award of such damages there must be a finding of an intentional unlawful act by the person against whom the order is sought. If the Tribunal is then satisfied that:[13]
[12]At [13].
[13]Residential Tenancies Act, s 109(3).
… having regard to—
(a) the intent of that person in committing the unlawful act; and
(b) the effect of the unlawful act; and
(c) the interests of the landlord or the tenant against whom the unlawful act was committed; and
(d) the public interest,—
it would be just to require the person against whom the order is sought to pay a sum in the nature of exemplary damages, the Tribunal may make an order accordingly.
[14] Given the clear statutory criteria there was no legal basis for a question of law based on the proposition that flagrant disregard for rights was required.[14] Moreover, Mr Noble was in fact seeking to relitigate the Tribunal’s findings of fact, upheld by the District Court and then by the High Court.
[14]High Court leave decision, above n 1, at [16].
[15] As to the claim for arrears of rent, the original notice of termination Mr Simons had given was not a valid notice, there being clear errors on its face as had been found by the Tribunal and the High Court. Mr Noble’s argument based on the proposition that the initial notice complied with s 51(3) therefore raised no seriously arguable question of law.[15]
[15]At [11].
[16] The Judge declined leave accordingly.
This application
[17] In applying to this Court, Mr Noble adds a third proposed question of law to the two on which he was declined leave by the High Court. That third question is:
When determining a case between lay litigants is the Court entitled to essentially determine the matter on the basis of evidence and argument not previously raised or addressed by any party and which was not submitted to the lower Tribunal / Court, and further the Court not giving an opportunity for the party to respond?
[18] That question resembled one of the questions of law on which Mr Noble based his appeal in the High Court. It is not clear to us that, in seeking leave from this Court after leave is declined by the High Court, the applicant may vary the proposed questions. Were that to be possible, the purpose of the initial application to the High Court would be rendered nugatory and the application to this Court would be a different one. We do not think, however, that it is necessary to resolve that issue here. As the Judge found in the High Court, that question was in reality another expression of Mr Noble’s challenges to the factual findings of the Tribunal and the District Court.[16] Those factual findings were upheld in the High Court. We proceed on that basis.
[16]High Court appeal, above n 1, at [29].
[19] We are satisfied, for very similar reasons to those given by the Judge in the High Court, that these are not questions on which special leave should be given for a second appeal on a question of law. This dispute involves two essentially factual questions. Was Mr Noble’s conduct towards Mr Simons such as to warrant an award of damages and was Mr Simons’ notice of termination of his tenancy as at 14 May effective? Any possible legal argument has now been ventilated in the High Court, and the decision of the Tribunal and the District Court upheld. As Dunningham J found, the further questions of law for which Mr Noble seeks a second appeal were not raised by the way the case had been argued and responded to. Moreover, given the original circumstances of the dispute, and the relatively small amount of money involved, there can be no public interest in, or any other reason for, a further appeal to this Court.
Result
[20] The application for leave to appeal is declined.
[21] As both parties represented themselves, there is no order as to costs.
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