Rauti v Tamaki Regeneration Limited
[2017] NZHC 2326
•26 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1213 [2017] NZHC 2326
BETWEEN IOELA ANA RAUTI
Appellant
AND
TAMAKI REGENERATION LIMITED Respondent
Hearing: 21 September 2017 Appearances:
J Harder for Appellant
R M Gapes and C Tataru for RespondentJudgment:
26 September 2017
JUDGMENT OF LANG J
This judgment was delivered by me on 26 September 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
RAUTI v TAMAKI REGENERATION LIMITED [2017] NZHC 2326 [26 September 2017]
[1] This appeal concerns the residential tenancy of a property situated in Glen Innes (the property). At all material times the appellant, Ms Rauti, has been the tenant of that property. There is no dispute that her tenancy was governed by the provisions of the Residential Tenancies Act 1986 (the Act).
[2] Up until 1 April 2016 the owner of the property, and therefore Ms Rauti’s landlord, was the Housing Corporation of New Zealand (HCNZ). On 1 April 2016, the property was one of approximately 2,800 similar properties in the Tamaki area that HCNZ transferred to a company called Tamaki Regeneration Limited (TRL). That company is a subsidiary of Tamaki Redevelopment Company Limited (TRC), a company charged with the physical, social and economic regeneration of the wider Tamaki area. One of the ways in which TRC proposes to do this is by replacing approximately 2,500 existing homes in the area with a mixture of new social, affordable and private houses. Ms Rauti’s property is one of the homes to be replaced under this initiative.
[3] TRL delegated the management of Ms Rauti’s tenancy to a limited partnership known as the Tamaki Housing Association (Limited Partnership). The partnership operates under the name Tamaki Housing. On 12 October 2016, Tamaki Housing gave Ms Rauti notice that her tenancy would end on 18 January 2017. Ms Rauti did not accept the notice of termination as being valid. She therefore refused to vacate the property, and TRL was forced to apply to the Tenancy Tribunal (the Tribunal) for an order requiring Ms Rauti to deliver up vacant possession of the property.
[4] The Tribunal made an order requiring Ms Rauti to deliver up vacant possession over Ms Rauti’s opposition in a decision delivered on 21 February 2017.1
Ms Rauti applied unsuccessfully for a re-hearing, and then appealed to the District
Court against the Tribunal’s decision. In a reserved decision delivered on 16 June
2017, Judge G M Harrison dismissed the appeal.2
1 Tamaki Regeneration Ltd v Rauti [2017] NZTT Auckland 4062026 and 4066457.
2 Rauti v Tamaki Regeneration Ltd [2017] NZDC 10731.
[5] Ms Rauti now appeals to this Court on a question of law.3 The question is whether the notice of termination of tenancy was rendered invalid as a result of alleged failures by HCNZ and TRL to comply with procedural requirements of the Act when HCNZ transferred ownership of the property to TRL on 1 April 2016.
The statutory scheme
[6] The issues arise because of the procedural requirements contained in ss 15 and 43 of the Act. Those provisions apply where the landlord or tenant who is a party to a residential tenancy transfers his or her interest to a third party during the term of the tenancy.
[7] Section 43 of the Act requires a landlord who disposes of his or her interest in the property to give notice to the tenant of that fact. At the time HCNZ transferred the property to TRL s 43 relevantly provided as follows:
43 Disposition of landlord's interest
(1) Where the landlord disposes of his or her interest in the premises to any other person (in this section referred to as the purchaser), the following provisions shall apply:
(a) the landlord shall give to the tenant written notice of the disposition, including the name and contact address of the purchaser so far as those particulars are known to the landlord:
(b) until that notice is received by the tenant, the tenant shall not be obliged to pay any rent to the purchaser, and shall not be liable to the purchaser in any proceedings in respect of any sum paid to the landlord on account of rent:
(c) from and after the date on which the tenant receives that notice, or such later date as may be specified in the notice, the tenant shall pay to the purchaser all sums due and payable by way of rent in respect of any period commencing after that date:
(d) subject to any lawful claim made to the Tribunal before the date of settlement, the landlord's interest in any bond paid by the tenant shall pass to the purchaser on the earlier of the date of settlement or the date of possession.
…
3 Residential Tenancies Act 1986, s 119.
[8] Section 15 requires a party who acquires the interest held by either the landlord or tenant to give notice of the transfer to the other party to the tenancy. At the material time it relevantly provided as follows:
15 Notification of successor to landlord or tenant
(1) Where, during the term of any tenancy, the landlord's or tenant's interest passes to some other person, that other person shall, within
10 working days thereafter, cause the other party to the tenancy to be notified of—
(a) the full name and contact address of that person; and
(b) an address for service, being the address at which notices and other documents relating to the tenancy will be accepted by or on behalf of the person.
…
The events that occurred in the present case
[9] On 30 April 2015, the Government announced that the HCNZ would transfer the ownership and management of approximately 2,800 properties in Glen Innes, Point England and Panmure to another entity. On the same date, HCNZ wrote to Ms Rauti advising her that the property of which she was the tenant was one of the properties to be transferred by HCNZ in accordance with the Government initiative. She was told that the transfer would take place by 31 March 2016. The letter also advised Ms Rauti that an entity called the Tamaki Redevelopment Company would be her new landlord rather than HCNZ. The letter then went on to say:
Important facts you should know:
·Housing New Zealand remains your landlord until the transfer occurs.
· Your existing tenancy will continue with the Tāmaki Redevelopment
Company and your rights as a tenant will be the same.
·If you have any issues with your Housing New Zealand tenancy or proprietor, or if you want to speak with us, call us free on 0800 801
601.
·Housing New Zealand is working closely with Tāmaki Redevelopment Company to ensure that when the transfer occurs, there is as little disruption to you as possible.
·This announcement does not affect your eligibility for social housing assistance. This will continue to be managed through Work and Income when Tāmaki Redevelopment Company is your landlord, in the same way it is now.
You will be provided with ample notice before the transfer and more information about how you relationship with Tāmaki Redevelopment Company will work.
Tāmaki Redevelopment Company
Tāmaki Redevelopment Company is jointly owned by Government and Auckland Council. It is a community based organisation focused on housing development and social transformation in Glen Innes, Panmure and Pt. England.
When your tenancy is transferred to Tāmaki Redevelopment Company, they will have the same responsibilities under the Residential Tenancies Act as Housing New Zealand does now. Tāmaki Redevelopment Company is committed to providing you excellent service and has established a ‘Tāmaki Commitment’ which means any tenants in Tāmaki who may be affected by their future redevelopment plans will be able to stay in the area.
You will be provided with more information as further decisions are made. We have also enclosed a fact sheet with answers to some questions you may have. In the meantime, if you want to speak with us, please call us free on
0800 801 601.
[10] HCNZ wrote again to Ms Rauti on 17 March 2016. This letter advised:
Notice of Disposition of Landlord’s interest
Pursuant to Section 43 of the Residential Tenancies Act 1986, as your current landlord I am notifying you that as of 1 April 2016 Housing New Zealand will no longer be your landlord.
Your property will be sold to the Tāmaki Redevelopment Company (TRC) on 1 April 2016, and all future dealings with your landlord will be through the TRC’s tenancy management agency, Tāmaki Housing Association (Tāmaki Housing), 149 Queens Road, Panmure, 0800 521 555.
Rental payments and other matters
From 1 April onwards, you must pay your rent to Tamaki Housing.
·If you pay your rent automatically through WINZ, you do not need to do anything, as we have organised to have your rent directed automatically to your new landlord.
·If you pay your rent by any other means (automatic payment, bill payment, over-the-counter, salary redirection), you will need to change your payments to go to the Tāmaki Housing after your last payment to Housing New Zealand. Enclosed with this letter you will find instructions on how to make this change.
Your bond will continue to be held by Tenancy Services at the Ministry of Business, Innovation and Employment (MBIE) and they will be notified of the change of landlord.
All urgent maintenance work will continue to be picked up by Housing New
Zealand until 8 am 1 April 2016. If you have any questions before 31
March, you can call Housing New Zealand on 0800 801 601 between 8 am –
8 pm Monday to Friday. The call is free even if from a mobile phone.
From 1 April, Tāmaki Housing holds all relevant tenancy files and
information relating to your tenancy.
From 1 April onwards, you will call Tāmaki Houing on 0800 521 555 for
any and all issues related to your tenancy.
[11] On the same date HCNZ wrote another letter to Ms Rauti advising her that on
1 April 2016 her property would be one of approximately 2800 properties that were to be transferred to TRC. The letter also advised her that she would not need to make any changes in relation to the payment of rental because this was currently being paid by the Ministry of Social Development from her benefit. The letter also advised that nothing would change in terms of Ms Rauti’s rights as a tenant because these were protected in law, and that her eligibility for social housing assistance would continue to be managed through the Ministry of Social Development.
[12] Subsequently, on 23 March 2016, Tamaki Housing wrote to Ms Rauti in the following terms:
Dear Ioela Ana
You have a new landlord.
We are writing to you in accordance with Section 15 of the Residential Tenancies Act 1986 to let you know that Tāmaki Housing will be your new landlord from 1 April 2016.
We are really excited to be working in Glen Innes, Panmure and Point England, and we look forward to spending time in the community getting to know you and your family.
Our address for service is 244 Apirana Avenue, Glen Innes and 149 Queens Avenue, Panmure. You can also phone us free on 0800 521 555 or visit our website, tamakihousing.co.nz
[13] Tamaki Housing followed this up on 1 April 2016 with a further letter providing Ms Rauti with the following advice:
Dear Ioela,
Change of landlord
We wanted to take this opportunity to introduce ourselves. The management of your tenancy was transferred to our company, Tamaki Housing Association on 1 April 2016.
Our contact details are:
Free call Tamaki Housing Association: 0800 521 555
Location: 244 Apirana Avenue, Glen Innes, Auckland 1072
Location: 149 Queens Road, Panmure, Auckland 1072
Phone: (09) 521 5221
Email: [email protected] Website: Rent payment
· We would like you to continue to pay your rent weekly to the bank account provided.
· Please start your rent payments to this new account immediately. Maintenance requests
· Please notify us of items in need of repair using the contact information above – we will do our best to remedy the situation as soon as possible.
Questions or need help? You can call us
If you have any questions, please call Tāmaki Housing on 0800 521 555. When you call, have your payment reference number handy – you will find it at the top of this letter.
[14] The notice of termination that Tamaki Housing subsequently gave in respect of the property on 12 October 2016 was in the following terms:
Termination of Tenancy
This letter serves as notice to terminate the tenancy agreement at the above address. The Residential Tenancies Act 1986 requires Tāmaki Housing to give you 90 days’ notice to terminate the agreement, which means your tenancy will end on 18 January 2017.
You need to continue paying rent and maintaining the property until you move out. You will need to leave by the termination date.
What happens if you want to move out before the Termination date?
If you would like to end your tenancy before the 18 January 2017 you are entitled under Section 51(2) of the Residential Tenancies Act 1986 to provide Tāmaki Housing 21 days’ notice. However, you can end your tenancy with less than 21 days’ notice with the agreement of Tāmaki Housing.
What do you need to do when you move out?
I will be in touch before you move out, and I will give you a checklist of things we’ll be reviewing as part of your final inspection. I’ll also be scheduling this final inspection – the aim of this is to assess condition of the property prior to your leaving.
Questions or need help? You can call us
If you have any questions, please contact me direct or call the Tāmaki
Housing office on 0800 521 555.
I would like to reinforce that we are committed to working with you to find alternative housing in Tamaki and I will continue to be in contact to offer suitable properties as they become available.
Your sincerely
Albert Wipani
Neighbourhood Liaison Advisor
The Judge’s decision
[15] The Judge was dealing with a general appeal rather than an appeal on a question of law as this Court only has jurisdiction to decide. He was therefore required to determine several issues that are not relevant for present purposes. Relevantly, however, he held that the purpose of s 43 was to adjust the rights and obligations of the parties in relation to the payment of rental when a property changes hands.4 The effect of the section is that the tenant has no obligation to pay rent to the purchaser of the property until proper notice is served. He considered the information contained in the two letters sent by HCNZ to Ms Rauti was sufficient to satisfy the requirements set out in s 43.5
[16] The Judge considered that the purpose of s 15 was to place an obligation on the new owner of a rented property to advise the tenant of the successor to the
previous landlord. He held that the letters sent by Tamaki Housing to Ms Rauti on
4 Rauti v Tamaki Regeneration Ltd, above n 2, at [19].
23 March and 1 April 2016 were sufficiently accurate to comply with that requirement.6 He could discern no prejudice to Ms Rauti in the way in which she was given notice of the change in ownership of the property.
[17] The continued relevance of these two issues for present purposes lies in the fact that the question of law posed by Ms Rauti rests on the premise that TRL and/or HCNZ failed to comply with the notification requirements imposed by ss 15 and 43. If neither of those assertions is correct, the proposed question of law becomes academic.
The alleged failure by HCNZ to comply with the notification requirements imposed by s 43
Did the letters that HCNZ sent to Ms Rauti on 17 March 2016 comply with s 43?
[18] On Ms Rauti’s behalf Mr Harder argues firstly that both letters sent by HCNZ were deficient because HCNZ sent them to Ms Rauti prior to the date upon which TRL took ownership of the property. He points out that s 43 obliges the landlord to give notice to the tenant when the landlord “disposes” of his or her interest in the leased premises. Mr Harder submits that HCNZ could not give valid notice in terms of s 43 unless it did so on or after 1 April 2016.
[19] I do not accept this submission. I consider the word “disposes” is sufficiently wide to encompass notice given before, at the time of and after the disposition. It needs to be remembered that, as the Judge found, the object of s 43 is to ensure the tenant’s financial obligations under the tenancy remain unaltered by a change of ownership until such time as the present landlord gives the required notice under s 43. That object can be achieved before, on or after the date of disposition.
[20] I consider the word “disposes” is neutral in terms of timing, and was used by Parliament as a means of imposing the obligation without any temporal requirement. That is to be contrasted with the approach taken in respect of the notification requirements under s 15 that must be met within ten working days of the property changing hands. It would have been a simple matter for the wording of s 45 to
follow that used in s 15 but Parliament has chosen not to take that approach in respect of s 43. For those reasons I do not consider the fact that HCNZ sent the letters two weeks before it disposed of the property affects the validity of the notice given.
[21] Mr Harder is on stronger ground with his next submission, which is that the two letters dated 17 March 2016 are contradictory in terms of the advice that they gave Ms Rauti. One of the letters correctly advised her that HCNZ would be transferring the property to TRL on 1 April 2016. That particular letter did not go on, however, to provide Ms Rauti with the remaining information that s 43 requires the landlord to provide. Instead, it went on to provide her with advice about the fact that her rental would continue to be paid from her benefit. HCNZ plainly did not intend that letter to constitute advice under s 43.
[22] The other letter sent on 17 March 2016 wrongly advised Ms Rauti that her property was to be sold to TRC, TRL’s parent company. It can be argued that this was not a major error because on one view TRC would own the property through its subsidiary TRL. On any view of the matter, however, each letter gave Ms Rauti different advice regarding the identity of the new owner of the property.
[23] The Act expressly contemplates that a vendor landlord may not be able to provide his or her tenant with accurate details about the identity of a new owner. This flows from the fact that s 43(1)(a) ends with the words “so far as those particulars are known to the landlord”. In the present case, however, HCNZ clearly knew of the existence of both companies because it was able to name them in the two letters. I consider that the contradictory nature of the advice given in each letter was sufficient to render the letters non-compliant with the requirements of s 43.
[24] That is not the end of the matter, however, because this finding does not automatically render invalid the steps taken by TRL to terminate the tenancy five months later.
What is the effect of non-compliance with s 43?
[25] As the Supreme Court observed in Tannadyce Investments Ltd v Commissioner of Inland Revenue, the courts no longer attempt to classify procedural requirements as strictly mandatory or only directory as once was the case.7 An enactment may sometimes specify the consequences that failure to comply with a required procedural step will produce. An example of this in the present context is s
16A of the Act, which requires a landlord who goes overseas for more than 21 days to appoint an agent in New Zealand and to notify the tenant of the identity of the agent. Section 16A(6) declares that a contravention of these requirements will be an unlawful act. Section 109 of the Act then permits a party to a tenancy to apply to the Tribunal for an order requiring the other party to pay “an amount in the nature of exemplary damages” in respect of the unlawful act. The Act does not, however, declare a failure to comply with s 43 or s 15 to be an unlawful act. Nor does it prescribe any consequences for failure to comply with the requirements of those sections.
[26] Where a statute does not prescribe the consequences of non-compliance, the courts must determine what those consequences will be. They will do so by “carefully attending to the whole scope of the statute to be construed”.8 In Green Growth (No 2 Ltd) v Queen Elizabeth the Second National Trust, the Court of Appeal reiterated that in such circumstances the legal consequences of non-compliance with a statutory requirement “must be ascertained by implication from the context and scheme of the legislation at issue”.9
[27] As I have already observed, the purpose of s 43 is to ensure that the financial obligations of a tenant are not affected where a property changes ownership until the vendor landlord has provided the tenant with information regarding the identity and contact details of the purchaser. For that reason the consequences of any failure to
provide the required notification should relate and be proportionate to that issue. In
7 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2
NZLR 153.
8 At [76], citing Lord Campbell LC in Liverpool Borough Bank v Turner (1860) 30 LJ Ch 379 (CA) at 381.
9 Green Growth (No 2 Ltd) v Queen Elizabeth the Second National Trust [2016] NZCA 308, [2016] 3 NZLR 726 at [117].
the present case the confusion that may have arisen as a result of the two letters may therefore have been relevant to any issue that may have arisen in respect of Ms Rauti’s financial obligations under the tenancy at the time HCNZ transferred the property to TRL. By way of example, the courts may have held that Ms Rauti was justified in refusing to pay rental to TRL after 1 April 2016 until HCNZ clarified the issue as to who she should pay because of the conflicting advice she had received in the two letters. It appears, however, that this never been an issue.
[28] Several other factors suggest that the consequences of the non-compliance in the present case would not extend beyond this point. First, the remaining information that s 43 requires a vendor landlord to provide was contained in the letter wrongly advising Ms Rauti that TRC had acquired the property. In particular, that letter advised Ms Rauti that as from April 2016 all future dealings with her landlord were to be “through the TRC’s tenancy management agency, Tamaki Housing Association (Tamaki Housing)”. It also provided her with contact details for Tamaki Housing, including that entity’s physical address, postal address and telephone number.
[29] Second, by August 2016 Ms Rauti was clearly well aware of the true situation. In a letter to TRC dated 10 August 2016 she referred to a meeting she had attended with TRC on 15 July 2016, and asked it to provide her with a letter setting out the process it proposed to follow from that point. Tamaki Housing provided her with the letter notifying her of the termination of her tenancy just two days later.
[30] Thirdly, s 43 imposes the obligation to give notice on the vendor of the property and not the purchaser. In the present case that obligation rested solely with HCNZ and not TRL. Any non-compliance with s 43 could not affect the validity of the transfer of the property from HCNZ to TRL on 1 April 2016. From that date TRL was the owner of the property, and in that capacity obviously had the ability to terminate Ms Rauti’s tenancy provided it complied with the requirements of the Act in doing so. I do not consider any non-compliance by HCNZ with the requirements of s 43 five months earlier could affect TRL’s ability to validly give notice terminating Ms Rauti’s tenancy in August 2012.
The alleged failure to comply with s 15
Did the letters dated 23 March and 1 April 2016 comply with the requirements of s 15?
[31] The first issue in this context is whether the fact that the letters were sent to Ms Rauti by Tamaki Housing and not TRL as the new owner of the property is of any consequence. That issue is effectively decided by the fact that s 15 does not require the person who acquires an interest under a residential tenancy to personally notify the other party to the tenancy of that fact. Instead, s 15(1) requires the person who acquires the interest to “cause the other party to the tenancy to be notified”. For that reason TRL was entitled to engage Tamaki Housing to provide the tenants of its properties with the required notice under s 15.
[32] Next, Mr Harder argues on Ms Rauti’s behalf that TRL failed to comply with s 15 because the first letter was sent eight days before TRL acquired HCNZ’s interest in the tenancy rather than within ten days after the date of acquisition as required by the section. I uphold this submission because the wording of the section is clear. It is highly unlikely, however, that the provision of notice before the time specified in s
15 could produce any legal consequences. The object of s 15 is clearly to ensure that a party to a lease advises the other party promptly after it has transferred its interest under the lease to a third party. It is difficult to see how the other party to the tenancy could be adversely affected by receiving notice of the transfer two days before it occurred instead of within the ten day period thereafter.
[33] This issue is rendered moot in the present case in any event because Tamaki Housing wrote to Ms Rauti again on 1 April 2016, and she would not have received the letter until after HCNZ had transferred the property to TRL.
[34] Mr Harder submits next that the letters failed to meet the requirements of s 15 because neither referred to the fact that TRL was the new owner of the property. The section requires the party who has acquired an interest under the tenancy to notify the other party of “the full name and contact address” of the person who has acquired the interest in the tenancy. In the present case that would have required Tamaki
Housing to notify Ms Rauti that TRL had acquired the interest of HCNZ under the tenancy.
[35] Neither letter provided this advice. The letter dated 23 March 2016 stated that Tamaki Housing would be Ms Rauti’s new landlord as from 1 April 2016. The letter dated 1 April 2016 advised Ms Rauti that the management of her tenancy had been transferred to the Tamaki Housing Association as from that date. It then provided all of the details for Tamaki Housing that Ms Rauti might need if she wished to contact it. Neither letter advised Ms Rauti that TRL had acquired the property.
[36] It follows that the letters from Tamaki Housing did not comply with the requirements of s 15.
What is the effect of non-compliance?
[37] Given that the Act does not specify any consequences for non-compliance with s 15, it is again necessary for the Court to determine what those consequences are having regard to the overall scheme of the Act.
[38] The section is clearly designed to ensure that a party acquiring an interest under a tenancy promptly notifies the other party to that tenancy of its contact details. This ensures that the other party maintains the ability to contact the transferee in relation to issues arising in respect of the tenancy. The legal consequences that follow non-compliance with the section will therefore relate and be proportionate to the frustration of that object.
[39] By way of example, and having regard to the advice that Ms Rauti received in the letters, the courts would be likely to find she was justified in proceeding on the basis that the new owner of the property after 1 April 2016 was Tamaki Housing. As a result, she could exercise her rights under the Act on the basis that the other party to the tenancy was Tamaki Housing. The letter dated 1 April 2016 gave Ms Rauti the contact details for Tamaki Housing, thereby supplying her with the ability to contact the entity said to be the new landlord of her property after 1 April 2016.
[40] This result may not take matters very far, however, because s 2(1) of the Act defines the term “landlord” as including any person acting as the agent of the landlord. The evidence establishes that Tamaki Housing acted throughout as TRL’s agent. The legal consequences of non-compliance with s 15 were therefore effectively the same as if there had been compliance with the section. In either case Ms Rauti would have been entitled to deal with Tamaki Housing on the basis that it was the landlord of the new property.
[41] Whatever the precise effects of non-compliance may be, they did not extend to nullifying the validity of the notice terminating the tenancy that Tamaki Housing served on Ms Rauti on 12 October 2016. By that stage, and given the knowledge that Ms Rauti obviously had of the true situation by that time, the effects of non- compliance were clearly spent.
Was it appropriate for Tamaki Housing to act as TRL’s agent?
[42] This issue was the subject of argument in and determination by the District Court but Mr Harder did not include it in his points on appeal or in his written submissions. During oral argument, however, he submitted that it was not appropriate for Tamaki Housing to act as TRL’s agent in giving Ms Rauti notice of termination of her tenancy.
[43] The issue arises because s 2(1), the interpretation section of the Act, provides the following expanded definition of the term “landlord”:
landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes—
(a) a prospective landlord; and
(b) a former landlord; and
(c) a lawful successor in title of a landlord to the premises; and
(d) the personal representative of a deceased landlord; and
(e) an agent of a landlord:
[44] Mr Harder submitted that the manner in which Tamaki Housing had breached the notification requirements of s 15 meant it was not appropriate in terms of s 2(1) for Tamaki Housing to act as TRL’s agent in giving Ms Rauti notice of the termination of her tenancy.
[45] I consider the Judge correctly concluded that this argument misconstrues the meaning of the words “where appropriate” as they are used in s 2(1).10 Those words do not mean that a subjective assessment is required to determine whether in any given case one of the persons listed in the definition is a suitable person to be classified as a landlord. Rather, the words have a meaning similar to “where the context makes it appropriate”. By way of example, they mean that a prospective
landlord or a former landlord will come within the definition of “landlord” for the
purposes of the Act where the context makes that appropriate.
[46] The short answer to Mr Harder’s submission is to be found in any event in s 51(3)(d) of the Act, which provides:
51 Termination by notice
…
(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.
[47] Section 53(1)(d) makes it clear that a notice to terminate a tenancy may be
signed by the landlord’s agent. As a specific provision it overrides the interpretation section of the Act, which is general in nature. Tamaki Housing has always acted as
10 Rauti v Tamaki Regeneration Ltd, above n 2, at [30].
TRL’s agent. For that reason there is no substance to Mr Harder’s argument that
Tamaki Housing had no ability to issue the notice of termination.
[48] For completeness I record that in his oral submissions Mr Harder appeared to advance a further argument that the notice of termination was not valid because Mr Wipani, the person in whose name the notice was issued on behalf of Tamaki Housing, did not sign the notice. This submission appears to be based on the unsigned copy of the notice that the parties produced in the agreed bundle of documents filed for the present appeal. The same document was also produced to the Tribunal and Mr Porteous, TRL’s representative at the hearing before the Tribunal, confirmed it was a file copy of the original notice. In addition, Ms Bright, one of the two advocates who appeared on Ms Rauti’s behalf at that hearing, confirmed to the Tribunal that Ms Rauti had received a signed copy of the letter. For that reason I am satisfied there is nothing in this point.
Result
[49] The appeal is dismissed.
Costs
[50] TRL has succeeded and would ordinarily be entitled to an award of costs and disbursements in its favour. In the present case, however, Ms Rauti has persuaded me that, contrary to the conclusions reached by the Tenancy Tribunal and the Judge, the notice given by HCNZ and TRL did not comply with the requirements of ss 15 and 43 of the Act. The appeal has failed because I have determined that the non- compliance did not affect the validity of the notice of termination. For that reason my tentative view is that costs should lie where they fall.
[51] If the parties cannot reach agreement regarding costs they should file brief memoranda (ie no more than three pages in length) and I will determine the issue on
the papers.
Lang J
Solicitors:
Tucker & Co, Auckland
Simpson Grierson, Auckland
Counsel:
J Harder, Auckland
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