Tana v Housing New Zealand

[2017] NZHC 1768

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV2017-488-85 [2017] NZHC 1768

IN THE MATTER

of an appeal against a refusal to grant an

application for a stay of proceedings pending outcome of an appeal

BETWEEN

JOSEPH TANA Appellant

AND

HOUSING NEW ZEALAND Respondent

Hearing:	28 July 2017 (via telephone-conference)
Appearances:	Appellant in person Y Juned for Respondent
Judgment:	28 July 2017
Reasons:	31 July 2017

REASONS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 31 July 2017 at 4.00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Tana v Housing New Zealand [2017] NZHC 1768 [28 July 2017]

[1]      This is an appeal against the refusal of Judge KB de Ridder, in the District Court at Whangarei, to grant a stay of proceedings pending the hearing of an appeal to the District Court against a decision of the Tenancy Tribunal.1     The District Court’s decision was delivered on Thursday, 27 July 2017 and Mr Tana filed his notice of appeal immediately.  It was been heard under extreme urgency because, if the Tenancy Tribunal’s decision was not stayed, Mr Tana would have been required to vacate his home by 9am today, 31 July 2017.

[2]      Mr Tana has been a residential tenant of the property at 4 Finlayson Park Avenue, Dargaville since September 2015.  The property is owned by Housing New Zealand.  On 23 June 2017, the Tenancy Tribunal found that Mr Tana had breached the peace, comfort and privacy of his neighbours (commercial businesses) to an extent that was not capable of being remedied and was sufficiently serious to justify termination of Mr Tana's tenancy under s 56 of the Residential Tenancies Act 1986 (the Act).   The Adjudicator directed that Mr Tana should vacate the property by

9.00 am on Monday, 3 July 2017.2

[3]      On 29 June 2017, Mr Tana applied for a rehearing; the application was heard on 7 July 2017.  In a further decision dated 10 July 2017,3 the Tribunal considered, in terms of s 105(1) of the Act, whether there was any basis for a rehearing on the ground  that,  "a  substantial  wrong  or  miscarriage  of  justice"  had  or  may  have occurred  or  is  likely  to  occur.    The Adjudicator  noted  that,  although  Mr Tana disagreed with the decision, there was no proper basis to order a rehearing.   The application was dismissed but the Adjudicator fairly extended the termination date to give Mr Tana a reasonable opportunity to find alternative accommodation.   The

original  order  of  the  Tribunal  was  varied  so  that  the  tenancy  now  ends  on

31 July 2017.

[4]      On 24 July 2017, Mr Tana appealed to the District Court.  It is not entirely clear from the Notice of Appeal whether the appeal was against the original decision

of the Tribunal as well as the Tribunal’s refusal to grant a rehearing.  At the same

1      Tana v Housing New Zealand [2017] NZDC 16495.

2      Tana v Housing New Zealand Tenancy Tribunal, Whangarei Application 4083609, 23 June 2017.

3      Tana v Housing New Zealand Tenancy Tribunal, Whangarei Application 4083609, 10 July 2017.

time,  he  applied  to  the  District  Court  under  s 105(1)  of  the Act  for  a  stay  of proceeding pending the hearing of his appeal.

[5]      On 27 July 2017, Judge KB de Ridder considered the stay application and issued a judgment on 27 July 2017 dismissing it.4   It appears that decision was made on the papers.  The Judge seems to have treated the appeal as being one against the Tribunal's substantive decision as well as against the refusal of the rehearing.  That seems to me to be appropriate, given the grounds advanced by Mr Tana in which he disagrees with the proposition that Housing New Zealand proved its case to the

appropriate standard.   When the substantive appeal is heard, it should proceed on that basis.

[6]      Judge de Ridder said that, having considered the original decision and the refusal of the rehearing, he was of the view that Mr Tana's appeal against either of the Tribunal's orders had "very little chance of success".   The Judge said that the Tribunal's decision was based on findings of fact with which the District Court would be "very slow to interfere".  He noted that Mr Tana did not argue that there was any procedural unfairness in the Tribunal proceedings and he had not disclosed any material or new evidence that was not available at the time of the original hearing.

[7]      The Judge also noted, pertinently, that the appeal may still be pursued, even if Mr Tana is required to leave before it is heard.   He would be able to claim compensation for the consequences of having to vacate the property if the Tribunal’s decision is overturned.   The Judge accepted that Mr Tana would be prejudiced if termination occurred, but he was not persuaded overall that, on the merits, it was in the interests of justice that a stay be granted.

[8]      The appeal to this Court was heard in an urgent telephone conference at

3.00pm today.   I am grateful to Ms Juned for appearing as counsel at very short notice and to Mr Khor for participating on behalf of Housing New Zealand despite

his other commitments.

4      Tana v Housing New Zealand above, n 1.

[9]      Mr Tana’s appeal against the District Court's refusal of a stay of proceeding is an appeal against the exercise of a discretion.  This Court will not interfere with the decision unless it can be shown that the District Court Judge:

(a)       made an error of law;

(b)      failed to take a relevant consideration into account; (c)           took an irrelevant consideration into account; or

(d)      was plainly wrong.

[10]     Mr Tana says that the Tribunal decision to terminate his tenancy was wrong and that he will rely on a voice recording of the Tenancy Tribunal's proceedings as proof of the evidence which he gave in response to the allegations made against him. Mr Tana also says that he has no suitable alternative accommodation immediately available in Dargaville, because it is recognised he needs a place to live on his own. He told me that he had been homeless before Housing New Zealand found the present property for him and he is fearful of being required to return to living rough on the streets.

[11]     I was informed from the Bar by Ms Juned that, since the stay was refused by Judge de Ridder, the Registrar of the District Court had indicated that Mr Tana's appeal against the Tenancy Tribunal's decision could be heard urgently on Monday,

7 August 2017.   It was proper of counsel to draw that to my attention.   Ms Juned indicated, however, that Housing New Zealand would have real difficulty responding to  Mr Tana's  appeal  in  such  a  short  timeframe.    Responsibly,  however,  counsel recognised  that  Mr Tana  will  be  placed  in  a  very  difficult  position  regarding accommodation if he is required to vacate the property on Monday.  I am bound to say that that is something which is entirely of Mr Tana’s making.   He has known since 23 June 2017 that his tenancy was being terminated and he knew on 10 July that he would have to find alternative accommodation within three weeks.

[12]     Judge  de  Ridder  considered  the  merits  of  Mr Tana’s  appeal  against  the Tribunal’s decision to terminate the tenancy and concluded on the material before him that it has very little chance of success.  Since this appeal does not dispose of Mr Tana’s appeal against the Tribunal’s original decision, it would not be appropriate for me to comment on the merits other than to say that, on my reading of the papers, it is a view the Judge was entitled to reach.   Judge de Ridder acknowledged that Mr Tana’s eviction will create difficulties for him and accepted that a successful appeal would not be of much use to Mr Tana if he has to leave the property before his appeal is heard.   But the Judge concluded that, weighing Mr Tama’s interests against those of the landlord in a case where the appeal is very unlikely to succeed, a stay would not be in the interests of justice.

[13]    Housing New Zealand's position is that allowing Mr Tana to remain in occupation of the property would cause real concern to his neighbours and others in the local community.  It is apparent to me on the papers that, in the view of Housing New Zealand and the Tenancy Adjudicator, Mr Tana has been a very difficult tenant. One can easily understand the concern of the neighbours about his continued occupation of the property despite the Tribunal’s June decision.

[14]     In  the  course  of  the  hearing,  however,  Mr Tana  told  me  that  he  would guarantee that he would not behave in any manner that would cause concern to his neighbours  pending  the  outcome  of  the  appeal.    I  explained  to  him  that  an undertaking of that kind given to a Judge of the High Court was to be taken very seriously and that, if he breached it, he would be liable to be held in contempt of Court. Mr Tana assured me he understood the seriousness of the position.

[15]     Although I accept that on the material before him Judge de Ridder's decision was one he was entitled to come to, I have had the benefit of a further engagement with Mr Tana and the receipt of his undertaking.   More importantly, I have been advised that the hearing of the appeal can take place much sooner than Judge de Ridder may have anticipated.  As I understand it, although the appeal may now be heard on 7 August 2017, the next available date after that is not until October 2017. Had the early hearing date not been available, I would have dismissed the appeal.

But the new factor is relevant, and it was not taken into account by the District Court

Judge because the information was not before him.

[16]     Given the difficulty of Mr Tana’s position, and on the basis of the new evidence before me, however, I gave a short oral decision allowing the appeal and staying the operation and enforcement of the Tribunal’s orders of 23 June 2017, as amended by the order of 10 July 2017.   The stay shall remain in force until the earlier of a further order of this Court or the disposition of the appeal by the District Court.

[17]     The stay was granted on the following conditions:

(a)      Not later than 5pm on Monday, 31 July 2017, Mr Tana shall file in the District Court and serve on Housing New Zealand at Whangarei his submissions and all other documents relevant to his appeal;

(b)pending the decision of the District Court on his appeal, Mr Tana shall not engage in any activity or behaviour which adversely impacts on the neighbours to his property or which would be in breach of either the terms of his tenancy agreement or the provisions of the Residential Tenancies Act 1986; and

(c)      Housing New Zealand shall file and serve its  submissions on the appeal by 5pm on Friday, 4 August 2017.

[18]     Housing New Zealand shall have leave to apply to this Court on short notice for  the  cancellation  or  variation  of  the  stay  in  the  event  of  a  breach  of  these conditions by Mr Tana, or if the hearing cannot proceed on 7 August 2017 for any reason other than default by Housing New Zealand.

[19]     I directed the Registrar to notify the District Court at Whangarei of this decision  immediately  so  that  arrangements  could  be  made  for  the  hearing  on

7 August 2017.  I further direct the Registrar to ensure that a copy of these reasons be put before the Judge hearing the appeal.

........................................

Toogood J