Noble v Simons - [2019] NZHC 2438

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

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.

Keep reading for free

Create a free CaseChat account to read Noble v Simons and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 2438
Decision Date: 26 September 2019

CaseChat Overview and Summary

The case of Noble v Simons involved a landlord and tenant dispute, where Mr Noble, the landlord, appealed against a decision of the District Court. The District Court had dismissed Mr Noble's appeal against two decisions of the Tenancy Tribunal. The first was a finding that Mr Noble had breached the Residential Tenancies Act 1986 by harassing Mr Simons. The second was a refusal to grant a rehearing in respect of an earlier decision dismissing Mr Noble's claim for rent arrears.

Mr Noble appealed to the High Court, raising two questions of law. The first was whether the District Court Judge was correct to refuse to order 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. The second was whether the Judge was 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.

In relation to the first question, the Court found that the Judge was correct to decline 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. As for the second question, the Court found that the District Court was not correct to conclude that if 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) did not apply in this case. However, the Court was satisfied that the practical effect of the District Court's decision, and of the Tribunal's decision, was to correctly apply the provisions of the Act.

In conclusion, Mr Noble's appeal was unsuccessful. The Court dismissed the appeal and ordered Mr Noble to pay the monetary sums awarded by the Tribunal and confirmed in the District Court. Mr Simons was also entitled to "reasonable disbursements" for out-of-pocket costs incurred in engaging in the litigation. Should Mr Simons wish to claim for reasonable disbursements, he was 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.

Orders