Noble v Simons
[2019] NZHC 2438
•26 September 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 2438
BETWEEN ROBERT CHARLES NOBLE
Plaintiff
AND
GRAEME LESLIE SIMONS
Defendant
Hearing: 18 September 2019 Appearances:
Plaintiff in person Defendant in person
Judgment:
26 September 2019
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 26 September 2019 at
2.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 26 September 2019
Introduction
[1] Mr Noble and Mr Simons were landlord and tenant. Although the tenancy itself was not long, over the past two years they have been engaged in multiple hearings in the Tenancy Tribunal (the Tribunal), and then in the District Court.
[2]Those hearings have involved two lines of claim:
(a)Mr Simons claimed harassment and breach of landlord obligations.
NOBLE v SIMONS [2019] NZHC 2438 [26 September 2019]
(b)Mr Noble claimed rent arrears and compensation.
[3] Mr Noble now appeals the District Court decision of Judge Neave on 30 December 2018 which found against Mr Noble in both lines of claim.1
Background
[4] Mr Noble, the landlord, and Mr Simons, the tenant, signed a three-month fixed term tenancy agreement on 7 November 2016. At the time, both were aware that Mr Noble was looking to sell the tenancy property (the property) and Mr Simons was looking to purchase a home.
[5] On 19 January 2017, the parties agreed that Mr Simons would remain as a tenant after the end of the fixed term agreement, on an open tenancy basis. Mr Noble then asked Mr Simons to enter a fixed term agreement for the winter period, which Mr Simons refused to do.
[6] Mr Noble then served Mr Simons with 42 days’ notice terminating the tenancy. Mr Simons applied to the Tenancy Tribunal (the Tribunal), which found the termination notice to be of no effect on 31 March 2017. Mr Noble did not appear at the hearing.
[7] Mr Simons alleged that in the later part of the tenancy, Mr Noble harassed him by sending excessive emails, constantly being at the address to complete repairs or carry out house viewings, and asking him to carry out unreasonable tasks.
[8] On 6 April 2017, Mr Simons emailed Mr Noble with a notice to terminate the tenancy as he had purchased a house (the first termination notice). After receiving advice from the Tribunal that the notice could not be served via email unless the email was listed as an address for service, he handed Mr Noble another notice on 9 April. Mr Simons says he intended the termination date to be Sunday 30 April 2017, but accidentally wrote Sunday 30 May 2017 on both notices.
1 Noble v Simons [2018] NZDC 26672.
[9] Mr Noble sent a number of emails to Mr Simons demanding he give his reasons for moving out, saying “you are leaving me in the middle of winter without a tenant which is likely to cause significant financial and emotional stress”.2
[10] By 19 April 2017, Mr Simons realised that he had written the wrong date on his first termination notice. He wrote a new termination notice on the standard form the Tenancy Tribunal had directed him to, but altered the termination date to 12 May 2017 in order to give 21 days’ notice (the second termination notice). He then delivered it directly to the letterbox at 1/32 Greenock Street, Redwood on 19 April. He delivered it to this address as, although 32 Greenock Street was given by Mr Noble as the landlord’s address for service, there was no property in the street with this address, the only similar addresses being 1/32 and 32A.
[11] Mr Simons returned to the Greenock Street address on the following day to ensure that Mr Noble had received the notice, but found that neither the occupants at 1/32 nor 32A Greenock Street had heard of Mr Noble. It seems a friend of Mr Noble had formerly lived at the property which was now 1/32 Greenock Street, but had shifted from there well before the tenancy was entered into.
[12] Mr Noble arrived at the property on 24 April 2017 to carry out a house inspection. At this inspection, Mr Simons handed Mr Noble a copy of the second termination notice which he had delivered to the Greenock Street address.
[13] Mr Simons says he continued to pay full rent until 12 May 2017 in accordance with the second termination notice. Mr Noble, however, says the agreement did not end until 30 May because the notice he received by email on 6 April was the only valid termination, and Mr Simons could not subsequently change it without his consent.3
2 Mr Noble erroneously understood s 51(3)(ca) of the Residential Tenancies Act 1986 requires a tenant to give reasons for leaving. It only requires a landlord to do so when giving a tenant less than 90 days’ notice, presumably so the tenant can verify that the reason for terminating with a shorter notice period falls within the exceptions listed at s 51(1).
3 Relying on s 51(6)(a) Residential Tenancies Act 1986.
Litigation history
[14] The history of litigation between the parties post-termination has been rather complicated, and has essentially involved a string of appeals from Mr Noble on two lines of claim:
(a)27 July 2017 – Mr Simons applied to the Tribunal, claiming Mr Noble had harassed him and unlawfully entered the property. The Tribunal ordered Mr Noble to pay $2,270.44, which included exemplary damages of $2,250. Mr Noble did not appear at the hearing.
(b)14 August 2017 – Mr Noble filed a notice of appeal and stay of proceeding of the 27 July decision.
(c)24 November 2017 – Mr Noble applied to the Tribunal for an order for payment of rent arrears being rent he said was owed for the period 12 May to 30 May 2017 and compensation for damage and emotional stress. The Tribunal dismissed the application.
(d)2 March 2018 – Mr Noble applied to the Tribunal for a rehearing of the 27 July decision. The application was dismissed.
(e)20 February 2018 – Mr Noble applied to the Tribunal for a rehearing of the 24 November 2017 decision. The application was dismissed.
(f)30 December 2018 – Mr Noble appealed to the District Court against two of the Tribunal’s decisions.
District Court decision
[15] The appeal before Judge Neave on 30 December 2018 was against the following decisions of the Tribunal:
(a)the 27 July decision, which made a finding of harassment and unlawful entry against Mr Noble; and
(b)the 20 February decision, which refused a rehearing in respect of an earlier decision dismissing Mr Noble’s claim for rent arrears.
Harassment and unlawful entry
[16] Judge Neave began with the appeal against the Tribunal’s finding on 27 July 2017 that Mr Noble breached Mr Simons’ rights to reasonable peace, comfort or privacy, in circumstances that amounted to harassment. His Honour found, on the evidence, that the level of interference by Mr Noble went well beyond what Mr Simons had consented to. He also considered Mr Noble could not be heard on appeal to complain about the way the evidence was presented given he chose not to attend the hearing for no good reason. In any event, he found that evidence demonstrated that although there was a “measure of consent” by Mr Simons to the visits, “the level of interference was well beyond what the tenant consented to”. Mr Noble did not identify what evidence there was to challenge that conclusion and Judge Neave upheld the adjudicator’s factual finding.
[17] Judge Neave did, however, find that the award ordered by the Tribunal was “flawed”. The Tribunal ordered Mr Noble to pay a lump sum payment of $2,250 for breaches of both ss 38 and 48 of the Residential Tenancies Act 1986 (“the Act”). The sum awarded exceeded the statutory limit available under either of these sections individually. Accordingly, Judge Neave considered this sum should have been apportioned between the two sections to comply with the respective statutory limits, and so he varied the award so Mr Noble was ordered to pay $1,500 in respect of s 38 and $750 in respect of s 48. In all other respects, the appeal against the decision on this matter was dismissed.
Rent arrears
[18] On 24 November 2017, the Tribunal had dismissed an application by Mr Noble seeking rent arrears and compensation, then refused to grant a rehearing on 20 February 2018. The issue in relation to the first of these decisions was which termination notice was valid, and therefore on what date the tenancy ended.
[19] Although, strictly speaking, the appeal was against the decision refusing a rehearing,4 Judge Neave considered the substantive issue as to which termination notice was valid, as the right to claim rental arrears turned on which termination date applied. He found that the first termination notice given by Mr Simons was in error. He noted that the adjudicator did not seem to have considered whether there could have been an application to validate the second termination notice under s 51(7). Judge Neave held it was not “appropriate to prescribe an unduly restrictive attitude to questions of procedure except where clear limitations were imposed”, and found that if, at the Tribunal hearing, an application had been made under s 51(7) to validate the second termination notice, it would have been granted. He therefore upheld the Tribunal’s decision dismissing Mr Noble’s claim for rent arrears although he did so on the ground that the second termination notice should be approved pursuant to s 51(7) of the Act.
[20]Both appeals were therefore, in substance, dismissed.
What is the scope of this appeal?
[21] This appeal is brought under s 119 of the Act, which provides that appeals to the High Court from decisions of the District Court can be brought only on questions of law.
[22]The approach to appeals under s 119 of the Act was explained by Duffy J in
Anderson v FM Custodians Ltd as follows:5
In short, this Court is not to substitute its own views for that of the lower Court; instead the Court must consider whether the decisions under appeal reveal a misinterpretation and/or misapplication of the statutory powers in the RT Act, and if not, whether what has been decided is so misconceived that it is an unlawful decision …
[23] A challenge to a finding of fact in such an appeal will only be available where there was no evidence to support the determination, or where the only reasonable conclusion contradicts the determination. A Court should be slow to reach the view
4 Where, again, Mr Noble did not appear.
5 Anderson v FM Custodians Ltd [2013] NZHC 2423, (2013) 15 NZCPR 123 at [32].
that a decision under appeal is based on a untenable conclusion on the facts, with the Supreme Court saying:6
Some caution is, however, required of the appeal court in assessing whether the decision-maker has reached an untenable conclusion on the facts. In Bryson this Court took notice of the observation by Lord Donaldson MR in Piggott Brothers and Co Ltd v Jackson that:7
“It does not matter whether, with whatever degree of certainty, the appellate court considers it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option.”
What are the questions of law arising?
[24] The parties, as litigants in person, understandably had difficulties in identifying the boundaries between an appeal on a question of law, and a full appeal where factual findings can be revisited. Nevertheless, through the case management process, Mr Noble refined his grounds of appeal to identify the following questions of law:
(a)In the circumstances of the case where the appellant was seeking by way of remedy a rehearing of the application for exemplary damages and where the Judge accepted … that the Tribunal had fallen into error was the Judge entitled … to refuse to order a rehearing and immediately proceed to substitute it for orders made under s 118(1)(b) having the same effect as the original order and when the Judge … states the “reasoning process seems to me to be sound” without hearing from all parties?
(b)Having found … that in relation to s 51 of the Act “it is clear that, generally speaking, compliance shall be strict” and, having further found … that “I do not think it appropriate to prescribe an unduly restrictive attitude to questions of procedure except where clear limitations are imposed” was the Judge correct in concluding that “if, at the hearing, an application had been made to permit the validation of the second notice it would have been granted”?
(c)Was the Tenancy Tribunal entitled to publish personal medical information and decision via its website and does the publishing breach the Privacy or Human Rights Act?
(references to paragraphs in the decision are excluded).
In each case, Mr Noble submits that the answer should be “no”.
6 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [53].
7 Piggott Brothers and Co Ltd v Jackson [1992] ICR 85 (CA) at [92].
[25] At the outset, I identified that question (c) could not be addressed in this hearing. It related to the publication on the Tribunal’s website of its decision declining Mr Noble’s application for a rehearing on Mr Simon’s application for exemplary damages and refund of his bond. In the decision, the adjudicator sets out seven reasons for declining the application for a rehearing, including why it discounted his explanation of suffering from a medical condition which precluded him from attending.
[26] I explained to Mr Noble that I had no jurisdiction, on an appeal of the District Court’s decision under s 119, to make determinations regarding the Tribunal’s administrative processes. The Tribunal was not represented and Mr Simons had no authority to represent the Tribunal’s interests. Accordingly, I declined to consider it.
[27] That left the two remaining questions of law, being whether the Judge was correct to decline to order a rehearing on the award of exemplary damages, and whether he was correct to treat the second termination notice as valid on the grounds that if an application had been made to validate it, it would have been granted.
Was the Judge correct to refuse a rehearing but to substitute the award of exemplary damages for orders made under s 118(1)(b) having the same effect as the original order?
[28] Mr Noble states, in his notice of appeal, that the Judge was in error to refuse a rehearing because:
(a)the evidence given before the Tribunal was inadequate;
(b)he should have been given an opportunity to place evidence and witnesses before the District Court relating to the issues identified; and
(c)simply apportioning the quantum of damages between the heads of damage did not give proper recognition to other factors that ought to have been considered, such as relative seriousness, totality or mitigation.
[29] Mr Noble made extensive submissions on why he considered Judge Neave was in error in upholding the claim for exemplary damages. Much of these submissions traversed factual findings made in the Tribunal and District Court. The gist of the submissions was that Mr Simons knew that the property was for sale and that he would have to allow access to the property for maintenance and for viewings. Mr Noble says there was “no evidence … supplied showing significant or sustained inference as all attendances were part of the agreement … and the attendance at the property did not exceed [Mr Simons’] expectations”.
[30] However, it is clear from the numerous texts and emails that the attendances at the property did exceed Mr Simons’ expectations. He was at pains to try to stop visits occurring without prior warning and to limit the number of days per week on which viewings would occur.
[31] For example, on 6 April Mr Simons sought to rein in the number of visits to the property by suggesting to Mr Noble that he accept the following “reasonable conditions”.
(a)24 hours prior notice;
(b)two set days for viewing, being Wednesday and Sunday; and
(c)that the viewing time be in the afternoon.
[32] However, Mr Noble ignored this and on 7 April Mr Simons emailed Mr Noble saying:
I did allow you access today for you to repair the property and to allow you to show people through at 10 am. I have just had contact from my daughter who has informed me that you have just showed more people through 149 Halswell Road, this being 12 midday and again at 12.30 approximately another group.
Clearly you have no right to just bring people through the property without my permission. This is clearly stated in the Tenancy Act.
And also one of the conditions that were handed to you this morning by my daughter are that you give me 24 hours prior notice which I believe is reasonable. This conditions (sic) have been ignored by you. I have concerned (sic) as to what is going to happen for the remaining three weeks that I am at the property.
[33] These documents alone (leaving aside the large numbers of text and email communications during February and March 2017, which were referred to in both the Tribunal’s and the District Court’s decision), provided ample evidence that the extent of Mr Noble’s communications and visits to the property far exceeded Mr Simons’ expectations and amounted to harassment. The Tribunal’s finding was clearly available to it on the evidence and was understandably upheld by the District Court. Given this factual finding, damages were available under ss 38 and 48 of the Act.
[34] I do not consider that Mr Noble’s argument that Judge Neave erred by altering the allocation of the award between the two sections of the Act can be sustained. On appeal from the Tribunal, a District Court Judge may quash an order and substitute it for any other order that the Tribunal could have made in respect of the original proceedings.8 The Judge, having satisfied himself that the Tribunal’s factual findings regarding the seriousness of the breach were available, and that no miscarriage of justice arose because a rehearing had been declined, turned to the legal arguments raised by Mr Noble’s lawyer about the award of exemplary damages.
[35] The Judge noted that damages were awarded for breaches of both ss 38 and 48 of the Act. Section 38 provides that the tenant is entitled to quiet enjoyment of the premises without interruption by the landlord, and that the landlord shall not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises. The maximum amount that could be awarded under that section of the Act was $2,000. The second head of damages related to an award under s 48 of the Act, where there was a finding that the landlord had exceeded his rights of entry into the premises. The maximum award available under that section is $1,000. Given the adjudicator had combined the two awards into one global sum of $2,250, it was appropriate that Judge Neave apportioned that award between the two sections to ensure that it complied with the statutory limits.
8 Residential Tenancies Act 1986, s 118(1)(b).
[36] This was a clear exercise of his powers under s 118 of the Act having heard from the parties on this issue, and he was correct to ensure that an award which was appropriate in quantum was expressed in a way that complied with the law.
[37] Accordingly, I answer the first question posed in Mr Noble’s appeal in the affirmative. Judge Neave was entitled to refuse to order a rehearing and instead to substitute the award made for an award that had the same effect as the original order, but complied with the Act’s requirements.
Was the Judge correct in concluding that the second termination notice could be validated retrospectively by him on the grounds that, if at the hearing an application had been made under s 51(7), it would have been granted?
[38] Mr Noble submits that Judge Neave erred in finding that the second termination notice would have been declared valid if an application for validation had been made under s 51(7). He said that if such an application had been made, it could not have been granted because it did not meet the requirements of s 51(9).
[39] It is appropriate, at this juncture, to set out the relevant provisions of s 51 of the Act. They are:
…
(2) … the minimum period of notice required to be given by a tenant to terminate a tenancy shall be 21 days, in any case.
(3)Every notice to terminate a tenancy shall–
(a)be in writing; and
(b)identify the premises to which it relates; and
(c)specify the date by which the tenant is to vacate the premises; and
(ca)in any case where the tenant is given less than 90 days’ notice, set out the reasons for the termination; and
(d)be signed by the party giving the notice, or by that party’s agent.
…
(6)A party who has given an effective notice to terminate a tenancy–
(a)may, at any time before the expiry of the period of notice, revoke the notice with the consent of the other party; but
(b)may give a further notice to terminate the tenancy only if the prior notice is revoked.
(7)Where a party has given a notice to terminate the tenancy and subsequently realises that, because of–
(a)some error in the way in which the period of the notice or the date of the expiry of that period is expressed in the notice; or
(b)some delay in serving the notice, –
the period of notice given is less than the minimum prescribed by subsection (1) or (as the case may require) subsection (2), that party may, with the agreement of the other party or (failing such agreement) with the consent of the Tribunal, give to the other party a further notice varying the first notice so as to bring the period of notice given up to or above that minimum so required.
…
(9)The Tribunal shall not give its consent under subsection (7) unless it is satisfied–
(a)that the error in the notice or the delay in serving the notice was inadvertent; and
(b)that the party who gave the notice has sought to correct the matter as soon as practicable after realising that the period of notice given is inadequate; and
(c)that it would not be unfair to the other party to allow the original notice to be varied in the manner proposed.
[40] Mr Noble’s submissions focussed on the first termination notice, giving a termination date of Sunday 30 May 2017, being valid because it complied with s 51(3). That meant that the second termination notice, giving the termination date of 12 May 2017, was invalid unless he consented to it under s 51(6) and, furthermore, it could not be validated by the Judge under s 51(7) because the conditions in s 51(9) were not met. In particular, Mr Noble argued that the error was not “inadvertent” as Mr Simons deliberately put the erroneous date in the first termination notice. He also submitted that it would be unfair to him to allow Mr Simons to vary the termination date to an earlier date because of the loss of rent.
[41] Mr Simons says, however, it was clear the first termination notice contained an error. He intended to put Sunday 30 April as the termination date but made a mistake
and inserted May instead of April. He took possession of the house he had purchased on 27 April and had planned to have two days overlap between when he took possession and when he had to vacate the property. As soon as he realised his mistake, he tried to serve a fresh termination notice at the address for service given in the tenancy agreement and committed to paying rent for an additional 12 days to ensure he complied with the Act’s requirement to give 21 days’ notice.
[42] He says it was clear that the error in the first termination notice was inadvertent, and fixing his mistake by serving the second termination notice resulted in him paying 12 days more rent than he would otherwise have had to pay. He submits the District Court was correct to validate the second termination notice.
Discussion
[43] While the District Court purported to validate the second termination notice under s 51(7), I do not consider this provision applies in the circumstances. It only applies where the period of notice given is less than the minimum prescribed in the Act, and the Tribunal is validating a variation to the notice to extend the period of notice up to or above the minimum required. That is not the case here and is inconsistent with the Tribunal’s findings.
[44] The Tribunal accepted that the first notice contained an error on its face, saying “the letter contained a date error”. The Tribunal therefore held that Mr Noble could not object to the tenant serving the fresh notice to terminate the tenancy, and which gave 21 days notice, to the address for service the landlord gave in the tenancy agreement (even though it expressed puzzlement as to why Mr Noble would give this as an address for service). Given the Tribunal’s finding that the second termination notice was correctly served and gave the requisite statutory 21 day notice period, s 51(7) could not apply and neither the Tribunal or the District Court Judge had jurisdiction to validate it under that section.
[45] That leaves Mr Noble’s argument that, having been served with what he submits was a valid notice giving a termination date of 30 May, there was no provision to give a further notice to terminate the tenancy unless he consented to the further notice. In advancing that argument, he relied on the provisions of s 51(6).
[46] However, I do not consider this provision covers the circumstances that arose in this case. I accept the factual findings by both the Tribunal and the District Court that the first notice contained a clear error which Mr Simons could correct. While Mr Noble argues that the first notice gave a date he could rely on, and the erroneous day given was irrelevant for the purpose of it being a complying notice under s 51(3), I consider the Tribunal was correct to deal with the issue as it did.
[47] There is much supporting evidence for the first notice being issued in error and for that error being apparent both on its face, and from subsequent documents. First, there is the conflict between the day of the week given and the date given. The 30th of May was not a Sunday but the 30th of April was. Mr Noble then received other communications from Mr Simons which suggested Mr Simons’ understanding was that the tenancy would end on 30 April. For example, in an email sent from Mr Simons to Mr Noble on Friday 7 April, where he complains about Mr Noble bringing people through the property without his permission, he says he is concerned about what is going to happen “for the remaining three weeks that I am at the property”. In a text sent on 8 April, he asks “what time do you wish to do the final inspection of the premises on the 30th of April ... you have got me out of the premises which is what you wanted”.
[48] Finally, on 20 April, Mr Simons sent a text to Mr Noble asking him to accept the end of the tenancy being 30 April not 30 May “which was in error” and saying that, in turn, he would give Mr Noble permission to do certain repairs in the house while he was still living in it.
[49] There was, therefore, ample evidence to support Mr Simons’ assertion that the first notice contained an obvious error and should not bind him. That is not a circumstance that is provided for in s 51. Rather, it is a situation that is properly addressed under s 85 of the Act. That section provides:
85 Manner in which jurisdiction is to be exercised
(1)Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.
(2)The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
[50] The Tribunal’s decision determined the dispute over which termination notice was effective by having regard to the substantial merits and justice of the case. It accepted that the first termination notice was in error and allowed Mr Simons to rely on the second termination notice which was served in compliance with the statutory requirements.
[51] In summary then, the answer to the second question of law is technically in Mr Noble’s favour. Judge Neave was not correct to conclude that if at the hearing an application had been made to permit the validation of a second notice under s 51(7) it would have been granted, as s 51(7) simply did not apply in this case.
[52] That said, I am satisfied that the practical effect of his decision, and of the Tribunal’s decision, was to correctly apply the provisions of the Act. The first termination notice, which clearly contained an error, could be revoked by Mr Simons and the second notice, which complied with the statutory requirements for both timeframe and service and could be treated as valid and binding.
[53] For completeness, I address Mr Noble’s submission that he would be unfairly prejudiced by the second termination notice being held to be valid (through whichever route). Mr Noble bases this submission on the fact that under the first termination notice he would have been paid rent through to 30 May 2017, whereas under the second termination notice he was only paid rent until 12 May 2017, hence his claim for the shortfall in rent.
[54] However, prejudice or unfairness must be assessed not as the loss of an advantage which might have been gained if the first termination notice been enforced but, rather, whether he suffered a detriment as a result of relying on the erroneous first termination notice, which he would not have suffered if the mistake had not been made. I am not satisfied that is the case. By way of example, there was no evidence to suggest that Mr Noble turned down a prospective tenant who wanted to commence occupation between 12 May and 30 May and so lost an opportunity which he would
have had, had he known all along that the termination date was 12 May. Indeed, one could say Mr Noble benefitted from Mr Simons’ mistake because, rather than obtaining rent until 30 April, Mr Simons continued to pay rent until 12 May in order to comply with the statutory timeframe.
[55] For these reasons, I am satisfied that the Tribunal’s approach, which was, in substance, upheld by the District Court, was correct. The second termination notice was valid and there was no error in the decision declining to grant a rehearing on this issue.
Conclusion
[56] Mr Noble has been unsuccessful on his first question of law and, although I have found that there was an error of law in the Judge’s application of s 51(7) of the Act, it was not on the grounds advanced by Mr Noble. In any event, it does not warrant allowing the appeal.
[57]In substance, therefore, Mr Noble’s appeal has been unsuccessful.
Relief
[58] In the event the appeal was dismissed, Mr Simons sought to be awarded relief under a number of heads. These were set out in his submissions dated 3 September 2019 and can be summarised as follows:
(a)an order dismissing the appeals “with prejudice”;
(b)costs in the amount of $3,800 (explained as compensating him for the nine days’ annual leave he has had to take to attend various Court appearances);
(c)exemplary damages;
(d)compensation for stress and disruption caused to Mr Simons and his family;
(e)that a timeframe be given for payment of all orders made by the High Court and the amount outstanding from the Tribunal; and
(f)that a sale/possession order is put in place to take effect at the end of the timeframe given for either party to pay any order.
[59] Mr Simons also stated at the hearing that he sought costs of $693, which, presumably, are for various disbursements and out-of-pocket costs, although these were not supported by invoices or documentary evidence.
[60] Much of what Mr Simons seeks is, in essence, a claim for damages. No proceedings were filed seeking such damages and so there is no jurisdiction to award them.
[61] Mr Simons remains entitled to the monetary sums awarded by the Tribunal and confirmed in the District Court. It is expected that Mr Noble will pay those sums promptly, failing which enforcement action can be taken by Mr Simons.
[62] In respect of Mr Simons’ other claims for costs I accept, as a lay-litigant, he is entitled to “reasonable disbursements” at the discretion of the Court. These are able to be awarded for out-of-pocket costs incurred in engaging in the litigation, such as printing costs and filing fees. Disbursements do not include the value of time spent in Court.
[63] Should Mr Simons wish to claim for reasonable disbursements, he is to file and serve a memorandum setting out the basis of the claim, along with any supporting documents, within 15 working days of the date of this judgment. Mr Noble can file any response to the claim (to address whether the amounts claimed are reasonable and reasonably relate to the litigation) in a further five working days. I will deal with the claim on the papers.
Copy To:
Mr R C Noble Mr G L Simons