Noble v Simons
[2019] NZHC 3242
•10 December 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2019-409-000061
CIV-2019-409-000064 [2019] NZHC 3242
BETWEEN ROBERT CHARLES NOBLE
Plaintiff
AND
GRAEME LESLIE SIMONS
Defendant
Hearing: 9 December 2019 (By way of telephone conference) Appearances:
Plaintiff in person Defendant in person
Judgment:
10 December 2019
JUDGMENT OF DUNNINGHAM J
Background
[1] Mr Noble and Mr Simons were landlord and tenant respectively. The tenancy was relatively brief. The litigation, however, has been lengthy.
[2] The full history of this matter is set out in detail in my earlier judgment.1 For the purpose of this application, it is sufficient to say the following:
(a)Mr Simons served a notice of termination of the tenancy on Mr Noble. It inadvertently suggested the tenancy would terminate a month later than he intended. He then served a corrected termination notice on Mr Noble. However, Mr Noble considered Mr Simons should be held
1 Noble v Simons [2019] NZHC 2438.
NOBLE v SIMONS [2019] NZHC 3242 [10 December 2019]
to the original termination notice. He lodged a claim with the Tenancy Tribunal against Mr Simons requiring him to pay rent up to the original date on which Mr Noble considered the tenancy terminated.
(b)Mr Simons made his own claim in the Tenancy Tribunal for damages for breach of his right to quiet enjoyment of the property and breach of the landlord’s right of entry.
[3] Mr Noble was the unsuccessful party in both claims. The Tribunal held he was not owed the additional rent he claimed. In a separate decision it held Mr Noble had breached the tenant’s right of quiet enjoyment and the landlord’s rights of entry. It made an award “in the nature of exemplary damages” totalling $2,250 with the adjudicator saying:2
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 $2250.00 in this regard. Had the Tenant not limited his claim to $2250.00 I would have awarded nearly the maximum or the maximum amount of exemplary damages allowed, which here would have been $3,000.00.
[4] Mr Noble was not happy with either decision. He sought re-hearings in the Tenancy Tribunal on both issues, but was unsuccessful. He appealed to the District Court where he was also unsuccessful. He then appealed to the High Court where he has been unsuccessful.
This application
[5] He now seeks leave to bring a second appeal on a question of law under s 120(2) of the Residential Tenancies Act 1986 (the Act). That section provides:
An application to the High Court for leave to appeal to the Court of Appeal under this section shall be brought, in accordance with the rules of court, within 15 working days after the determination of the High Court, or within such further time as the High Court may allow; and the High Court may grant leave accordingly if, in its opinion, the appeal involves a question of law that, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision.
2 Pursuant to s 109 and sch 1A Residential Tenancies Act 1986.
[6]The proposed questions of law are:
Rent arrears:
(a)Is a party that has 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?3
Harassment:
(b)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?
Discussion
[7] For the reasons that follow, I am not persuaded that either question raises a seriously arguable question of law warranting determination by the Court of Appeal.
Rent arrears
[8] The first question assumes findings of fact that are inconsistent with the decisions in the Tenancy Tribunal and the District Court, and which were endorsed in this Court.
[9] Mr Noble assumes that the first termination notice Mr Simons gave complied with the requirements of s 51(3). However, there have been consistent findings that there was an error on the face of that document, in that the day and the date given did not match, so it was unclear what termination date was intended. Furthermore, there was some contemporaneous evidence that Mr Noble knew the intended date was Sunday 30 April, not Sunday 30 May as was given in the notice.4 It is doubtful, in those circumstances, that it could be held to be an “effective notice to terminate a
3 Noting 30 May was in fact a Tuesday.
4 The question as set out reflects minor corrections to the wording which were sought by Mr Noble in the oral hearing.
tenancy”. For that reason, s 51(6) is not brought into play and consent of the landlord is not required to revoke the notice. I also found that s 51(9) did not apply in the circumstances. Furthermore, there has been no finding of prejudice to Mr Noble in allowing Mr Simons to issue a corrected notice to terminate the tenancy.
[10] Mr Noble sought to argue that there was prejudice to him in his oral submissions on his leave application. However, as I reminded him, there is no scope to make fresh factual findings in the context of an application under s 120(2) of the Act.
[11] Because the question of law proposed assumes facts which are inconsistent with the findings of the Tribunal and the District Court, and which can not be revisited on the proposed appeal, it is simply not a seriously arguable question of law. Furthermore, Mr Noble has failed to identify why this is a question of general or public importance. Rather, it is a fact-specific dispute which involves a relatively modest sum of money. For these reasons leave is declined.
Harassment
[12] The second question of law proposed by Mr Noble raises a fresh issue which has not been debated in any of the courts below. It poses the question whether, before awarding punitive damages, the Tribunal is required to find as a fact the party acted intentionally and flagrantly in disregard of the other party’s rights.
[13] Again, I do not consider this is a seriously arguable question of law. The statutory test for awarding damages is clearly spelt out in the Act. In order to award such damages there must be a finding of an unlawful act as prescribed by s 109. The Act then requires the Tribunal to be satisfied:5
… that the person against whom the order is sought committed the unlawful act intentionally, and that, having regard to –
(a)the intent of that person in committing the unlawful act; and
(b)the effect of the unlawful act; and
5 Under s 109(3).
(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 …
[14] Section 109 then states that the maximum amount that a person may be ordered to pay for any unlawful act is that prescribed in sch 1A of the Act.
[15] In the present case, the Tenancy Tribunal found that there was a breach of both ss 38 and 48 of the Act. These sections provide for the tenant’s entitlement to quiet enjoyment of the premises, and the tenant’s expectation of the landlord’s rights of entry respectively.
[16] The maximum amount capable of being awarded in relation to the two breaches under sch 1A was $2,000 and $1,000 respectively. The Act makes it clear that such damages are available where the unlawful act is committed intentionally. In setting the amount of the award of damages, it must have regard to the matters set out in s 109(3). Those do not require the party to have acted in “flagrant” disregard of the other party’s rights, simply that the unlawful act was at least intentional. However, clearly the more serious the breach is, the greater the amount of damages which is likely to be awarded. In this case, I consider it is clear from the Tribunal’s conclusions that, in fact, it made a finding that there was flagrant disregard of the tenant’s rights, which is why the award was at the higher end of what was permitted to be awarded.
[17] Again, Mr Noble sought to challenge these findings on the grounds there was no evidence to support them. However, I am satisfied there was a clear evidential basis for making these findings, and his concerns in that regard did not constitute a question of law.
[18] Again, I am satisfied that the test in s 120(2) has not been met and leave to appeal is declined.
Result
[19] The application for leave to bring a second appeal on a question of law is declined.
Copies To: Plaintiff Defendant