Noble v Simons - [2019] NZHC 3242

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…

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.

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Details

Case: [2019] NZHC 3242
Decision Date: 10 December 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, Mr. Robert Charles Noble sought leave to bring a second appeal against Mr. Graeme Leslie Simons, his former landlord, on questions of law under s 120(2) of the Residential Tenancies Act 1986. The court had to determine whether Mr. Simons was entitled to issue an amended notice to terminate the tenancy despite the potential prejudice to Mr. Noble and whether, before awarding punitive damages, the Tribunal was required to find as a fact that the party acted intentionally and flagrantly disregarded the other party’s rights.

The court found that the proposed question of law regarding the amended notice to terminate the tenancy assumed facts that were inconsistent with the findings of the Tenancy Tribunal and the District Court, and which could not be revisited on the proposed appeal. Additionally, Mr. Noble failed to identify why this was a question of general or public importance, rather than a fact-specific dispute involving a relatively modest sum of money. Concerning the second question of law, the court held that the statutory test for awarding damages was clearly spelled out in the Act and that it did not require the party to have acted in "flagrant" disregard of the other party's rights, simply that the unlawful act was intentional. The court was satisfied that there was a clear evidential basis for the Tribunal’s findings and that Mr. Noble's concerns did not constitute a question of law.

Ultimately, the application for leave to bring a second appeal on a question of law was declined.

Orders