Smith v Accessible Properties New Zealand Ltd - [2018] NZHC 1010

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-000010

[2018] NZHC 1010

IN THE MATTER of an Appeal pursuant to the Residential Tenancies Act 1986

BETWEEN

ESMERALDA SMITH

Appellant

AND

ACCESSIBLE PROPERTIES NEW ZEALAND LIMITED

Respondent

Hearing: 9 April 2018

Appearances:

M Sharp for the Appellant O Grant for the Respondent

Judgment:

9 May 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 9 May 2018 at 4:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Te Whenua Law, Rotorua
Duncan Cotterill, Wellington

Counsel: M Sharp, Barrister, Mt Maunganui

SMITH v ACCESSIBLE PROPERTIES NEW ZEALAND LIMITED [2018] NZHC 1010 [9 May 2018]

[1] This is an appeal from the decision of Judge PG Mabey QC, dated 18 January 2018.1 The Judge dismissed an appeal from a decision of the Tenancy Tribunal at Tauranga (Adjudicator, JP Smith) dated 11 December 2017. The Tribunal had granted Accessible Properties New Zealand Limited (Accessible Properties) possession of the premises situated at 25 Osprey Drive, Welcome Bay, Tauranga (the property), formerly occupied by Ms Esmeralda Smith pursuant to a tenancy agreement between the parties.

Factual background

[2] On 12 December 2011, Ms Smith entered a residential tenancy agreement with Housing New Zealand Corporation (Housing NZ) in respect of the property.

[3] In the early part of 2017, Housing NZ transferred the property to Accessible Properties, a community housing provider, and wholly owned subsidiary of IHC New Zealand. Accessible Properties became Ms Smith’s landlord on 1 April 2017.

[4] On 15 May 2017, the Tenancy Manager for Accessible Properties, Ms Georgina Willers, wrote to Ms Smith saying they would like to visit the property on 23 May 2017 for the purpose of an inspection, which would take up to 45 minutes and would involve the need to check all the rooms in the house for any maintenance, repairs and to make sure smoke alarms were in place and working. Ms Willers also advised Ms Smith that during the course of this inspection they would be completing a very simple non-invasive methamphetamine test. Ms Smith was invited to contact Ms Willers if she had any questions.

[5] Ms Smith was not present for the scheduled inspection on 23 May 2017, so Accessible Properties postponed the inspection. On 31 May 2017, Ms Willers sent a second inspection notice to Ms Smith. It advised her that an inspection was scheduled for 7 June 2017. Again, it advised Ms Smith that during the inspection they would also be completing a very simple non-invasive methamphetamine test.

1 Smith v Accessible Properties New Zealand Ltd [2018] NZDC 704.

[6] On 7 June 2017, Ms Willers and a Property Manager for Accessible Properties visited the property to conduct an inspection. Ms Smith’s adult son, who resided at the property, was present at the time of the inspection. The Accessible Properties staff advised Ms Smith’s son of the purpose of the visit and Ms Willers…

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: [2018] NZHC 1010
Decision Date: 9 May 2018

CaseChat Overview and Summary

The appeal in Smith v Accessible Properties New Zealand Limited involved a dispute over the legality of a landlord's methamphetamine testing on the rented property and the subsequent termination of the tenancy. The High Court was required to determine whether the District Court had erred in dismissing the tenant's appeal against the Tenancy Tribunal's decision to grant the landlord possession of the property. Specifically, the court needed to assess if the District Court had misinterpreted or misapplied the statutory powers under the Residential Tenancies Act 1986 and whether the decision was so misconceived as to be unlawful. The tenant argued that the methamphetamine testing was conducted without her consent and that the termination of the tenancy was harsh and unconscionable under section 78(1)(f) of the Act.

The court reasoned that the tenancy was validly terminated under section 51(1)(d) of the Act, which requires a 90-day notice for termination in any other case. The court found that even if the methamphetamine testing was conducted without the tenant's consent, it did not affect the legality of the termination as the landlord exercised a statutory right rather than a contractual one. The court also held that section 78(1)(f) of the Act did not empower the Tribunal to declare a termination notice harsh or unconscionable when based on a statutory right. Furthermore, the court determined that there was no breach of natural justice in denying the adjournment, as the outcome would not be affected by the tenant's potential evidence.

The appeal was dismissed, and costs were awarded to the landlord.

Orders