Raue v Harcourts Hamill Realty Ltd - [2022] NZHC 923

IN THE HIGH COURT OF NEW ZEALAND wo REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2021-435-12

[2022] NZHC 923

BETWEEN
KATHERINE RAUE

Applicant

AND

HARCOURTS HAMILL REALTY LTD

First Respondent

JUDITH GUNN

Second Respondent

Hearing: 4 April 2022, further material received on 5 May 2022

Counsel:

Ms Raue in person, with Mr Mihaka

K D Perry and A N Wainstein for First Respondent J R Parker for Second Respondent

Judgment:

18 May 2022

JUDGMENT OF ELLIS J

[1] On either 19 February or 19 April 2021 the District Court dismissed Ms Raue’s appeal from a decision by the Tenancy Tribunal (the Tribunal) dated 10 August 2020 terminating her tenancy.1

[2] On 22 June 2021 Ms Raue filed an application for leave to appeal the 19 April decision out of time.2

1 The reason for the confusion around these two “decisions” will become evident later in this judgment.
2 On the assumption that it is the 19 April 2022 decision that is the actuating one, her appeal was just under a month late.

RAUE v HARCOURTS HAMILL REALTY LTD [2022] NZHC 923 [18 May 2022]

The issue

[3] The issue for determination by the Court is whether granting leave to appeal out of time would be in the overall interests of justice.3 In this case, the merits of Ms Raue’s proposed appeal are not only central to, but (in my view) determinative of, that question. Before getting to that point, however, it is necessary to set out the rather complex background to this matter in some detail.4 Some detail is also useful as a means of checking whether the various matters raised by Ms Raue before me have, in fact, been addressed in the Tribunal and/or the District Court.

Background

[4] At the end of October 2019 Ms Raue became the tenant of a property in Reading Street, Greytown. Harcourts Hamill Realty Limited (Harcourts) manages the property on behalf of the owner, Judith Gunn. Miss Gunn is elderly and lives in a rest home. Although she is mentally alert and has legal capacity, she has debilitating physical ailments, difficulties with using her phone and no access to computers. At the time in question she had executed an enduring power of attorney (EPA) in favour of her brother, Roger Gunn.

[5] From the outset, Ms Raue was of the view that the property was substandard, particularly in light of the weekly rent of $330, which she says was almost 40 per cent higher than the $200 she had previously paid for renting another property. She also contends that the property was not clean when she moved in, nor properly maintained subsequently. She says the property was effectively uninsulated, had a leaking roof and dangerously rotten steps leading to the deck. She says Harcourts were required to—but did not—provide her with a list of all “identifiable hazards and risks” as required by one of the terms and conditions in the lease.

[6] At an early stage there was also an unfortunate…

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: [2022] NZHC 923
Decision Date: 18 May 2022

CaseChat Overview and Summary

Raue v Harcourts Hamill Realty Ltd concerned an application by the tenant, Ms Raue, for leave to appeal out of time from a decision of the District Court dismissing her appeal from a decision of the Tenancy Tribunal terminating her tenancy. The appeal was filed one month late. The High Court was required to decide whether granting leave to appeal out of time would be in the overall interests of justice. In determining this, the Court found that the merits of Ms Raue's proposed appeal were determinative of the question. The Court found that the Tribunal was required by statute to terminate the tenancy if the rent was more than 21 days in arrears. Ms Raue was in significant arrears as at the date the Tribunal's decision was made and the only exception to the termination provision was not applicable. Ms Raue's proposed appeal had no realistic prospect of success and the interests of justice did not favour the grant of leave. Accordingly, leave to appeal was declined.

Orders