Wang v Kāinga Ora Homes and Communities

[2025] NZHC 157

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3197

[2025] NZHC 157

BETWEEN

MEI WANG

Appellant

AND

KĀINGA ORA HOMES AND COMMUNITIES

Respondent

Hearing:

11 February 2025

Appearances:

Appellant in person

F F Nizam and A Mitra for Respondent

Judgment:

13 February 2025

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 13/02/2025 at 12.30 pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Luke Cunningham Clere, Wellington

Copy to: Appellant

WANG v KĀINGA ORA HOMES AND COMMUNITIES [2025] NZHC 157 [13 February 2025]

Introduction

[1]    For six years prior to January 2025, Ms Wang occupied a Kāinga Ora property in Ōtāhuhu. The property had three bedrooms and Ms Wang initially lived at the property with her mother and nephew. Sadly, Ms Wang’s mother passed away.  Her nephew returned to China. She remained in the property alone. Ms Wang has mental health issues which she says justified her remaining in the property rather than moving to an alternative one-bedroom Kāinga Ora property in Papatoetoe. She regarded the Ōtāhuhu property as her home. It is where her last memories of her mother are.

[2]    There is considerable pressure on social housing availability in Auckland. There are families in need of three-bedroom houses and Kāinga Ora eventually resolved to terminate Ms Wang’s tenancy and provide alternative accommodation for her in the one-bedroom property in Papatoetoe.

[3]    Ms Wang applied to the Tenancy Tribunal for a rehearing of decisions permitting Kāinga Ora to access her rental property to assess the suitability of her home for ongoing tenancy purposes,1 and to terminate Ms Wang’s fixed tenancy on the basis that the property was not suitable for Ms Wang and alternative premises were available for her.2 The Tenancy Tribunal dismissed the applications and granted a possession order to Kāinga Ora.

[4]    Ms Wang appealed to the District Court against the Tenancy Tribunal decisions, and, on 27 November 2024, Judge D J Clark dismissed the appeals.3 Ms Wang now seeks to appeal to this Court against the District Court decision.

[5]    Kāinga Ora submits that Ms Wang’s notice of appeal and subsequent memorandum filed do not identify any question of law and that this Court has no jurisdiction to hear what is essentially an attempt to bring a second general appeal.

1      Kāinga Ora — Homes and Communities v Wang [2024] NZTT 4589009.

2      Kāinga Ora — Homes and Communities v Wang [2024] NZTT 4858402.

3      Wang v Kāinga Ora — Homes and Communities [2024] NZDC 28175.

Procedural history

[6]    On 10 December 2024, Ms Wang filed an appeal against the District Court decision. Ms Wang also filed an application for stay of execution of the possession order pending determination of her High Court appeal.

[7]    On 9 January 2025, Muir J made an interim order staying termination of     Ms Wang’s tenancy until 15 January 2025.4

[8]    On 15 January 2025, Johnstone J declined to extend the interim order made. He issued a reasons judgment on the stay application on 3 February 2025.5 He noted that the appeal appeared to have been brought without jurisdiction as it failed to identify a point of law. Johnstone J directed Ms Wang to file and serve a memorandum by 5 pm on 7 February 2025 identifying any point of law that she wished to argue on appeal.

[9]    Ms Wang filed a memorandum on 7 February 2025. That memorandum repeats Ms Wang’s complaints about Kāinga Ora’s  actions and makes further complaints about her current circumstances. Kāinga Ora submits that this memorandum again fails to identify any question of law.

[10]   At the case management conference for appeals, Kāinga Ora invited the Court to strike out the appeal. Ms Wang opposed that application.

Discussion

[11]   Ms Wang represented herself at the case management conference. She addressed her memorandum filed on 7 February 2025 and additional matters set out in her notice of appeal. It is clear that having to leave the address where her mother previously lived has caused her significant distress. She said that she is currently homeless, although I note that Kāinga Ora has offered her accommodation in a one-bedroom unit.

4      Wang  v  Kāinga   Ora   —   Homes   and   Communities   HC   Auckland   CIV-2024-404-3197, 9 January 2025 (minute of Muir J).

5      Wang v Kāinga Ora — Homes and Communities [2025] NZHC 43.

[12]   Section 119 of the Residential Tenancies Act 1986 permits any party to an appeal brought in the District Court to bring a second appeal to this Court on a question of law.

[13]   The Supreme Court in Bryson v Three Foot Six Ltd considered what gives rise to a question of law for appeal purposes.6 An error of law may occur if the decision maker:

(a)applied the wrong legal test;7

(b)reached a factual finding that was “so insupportable — so clearly untenable — as to amount to an error of law”;8

(c)came to a conclusion that it could not reasonably have reached on the evidence before it;9

(d)took into account irrelevant matters;10 or

(e)failed to take into account matters that it should have considered.11

[14]   In Vodafone New Zealand Ltd v Telecom New Zealand Ltd, the Supreme Court provided that, in assessing a question of law, the Court should consider whether the decision-maker misinterpreted what was required by the relevant legislation and, if not, whether what the decision-maker did was so misconceived that it was clearly wrong and resulted in an unlawful decision.12 In such cases, an appeal could succeed. However, this is rare. The decision of Grice J in Poutama Kaitiaki Charitable Trust v Taranaki Regional Council provides that the fact that a second appeal court would have reached a different conclusion does not of itself allow interference on appeal if

6      Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.

7 At [24].

8 At [26].

9      Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.

10     May v May (1982) 1 NZFLR 165 (CA) at 170.

11     At 170.

12     Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153.

the decision on appeal was a permissible option.13 As Grice J said, this presents a very high hurdle.

[15]   A second appeal on a point of law is not the same as a general appeal. In an appeal on a question of law it is not the role of this Court to undertake “a broad reappraisal of … factual findings or the exercise of its evaluative judgments”.14 It has been said that this Court must be vigilant in resisting attempts by litigants to use an appeal to the High Court as a mechanism to relitigate factual findings in the lower courts.15

[16]   Ms Wang’s notice of appeal raised complaints about access to the Ōtāhuhu property by Kāinga Ora staff and alleges that the termination of her tenancy was a retaliatory  action  because  she  filed  an  application  for  rehearing  in  the   Tenancy Tribunal.

[17]   In her memorandum dated 7 February 2025, filed in response to Johnstone J’s direction of 3 February 2025, Ms Wang set out the following “causes of action”:

(a)The  respondent   failed   to   serve   the   notice   of   eviction   until   7 January 2025, despite the notice being issued on 28 November 2024.

(b)The application mentioned in Muir J’s direction of 9 January 2025 should have been without notice to the respondent. Ms Wang says Muir J’s direction amounted to the Judge finding a way to support Kāinga Ora and disadvantage her.

(c)The lawyer for the respondent filed a memorandum on 14 January 2025 but did not file an affidavit in support of the opposition to Ms Wang’s application.

13     Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159 at [33], citing

Vodafone New Zealand Ltd v Telecom New Zealand Ltd, above n 13.

14     Chorus Ltd v Commerce Commission [2014] NZCA 440 at [112].

15     Heybridge Developments Ltd v Bay of Plenty Regional Council [2012] NZRMA 45 (HC) at [38].

(d)Kāinga Ora staff used a locksmith to violently open the back door and the front door of the property on 16 November 2023 after Ms Wang advised that  a  rehearing  application  had  been  filed  in  the  Tenancy Tribunal. Ms Wang says that it is a criminal offence to enter  a dwelling house in that manner. Ms Wang complained that Kāinga Ora is a Crown entity providing social housing, and staff were not entitled to enter the property in the way they did.

(e)After using the locksmith to access the property, Kāinga Ora terminated the tenancy as a retaliatory action.

(f)In terms of remedies, Ms Wang seeks a possession order to allow her to remain at her previous address. She seeks:

(i)reimbursement for stays in a motel after her eviction from the address on 20 January 2025;

(ii)reimbursement for disconnection of her broadband plan;

(iii)an order waiving security for costs, as she says this is a case with public interest concerns;

(iv)a direction to “call relevant witnesses to provide testimony with swearing in the court and prepare a list of interrogatory for the hearing”.

[18]   As noted by Johnstone J in his decision, Ms Wang’s “appeals” in this Court appear to have been brought without jurisdiction because the basis of the appeal is simply a rehashing of the original appeal in the District Court. Counsel for Kāinga Ora submits that this Court has no jurisdiction to hear the appeal and says that no purpose would be served by permitting this matter to proceed. Kāinga Ora submits it has already been put to expense defending four Tenancy Tribunal applications and two District Court appeals at which Ms Wang did not appear.

[19]   Rule 15.1(1)(a) of the High Court Rules 2016 permits the Court to strike out all or part of a pleading if it discloses no reasonably arguable cause of action or case appropriate to the nature of the pleading.

[20]   The established criteria for striking out was summarised in the Court of Appeal in Attorney-General v Prince,16 and endorsed by the Supreme Court in Couch v Attorney-General.17 The cause of action or defence must be clearly untenable. It is inappropriate to strike out a claim summarily unless the court is certain that it cannot succeed.18 The jurisdiction is to be exercised sparingly and only in clear cases.

[21]   Proceedings that are not within the jurisdiction of the court are clearly untenable and are amenable to strike out. A second appeal on a question of law is a narrow jurisdiction. It is not an opportunity for an appellant to simply seek a different result from another court. This Court is a court of inherent jurisdiction but that is not unlimited. It is bound by jurisdictional limitations imposed by statute.

[22]   The appeal filed by Ms Wang cannot be properly characterised as an appeal on a question of law. It is simply an attempt to re-argue the same matters rejected in the District Court. This Court has no jurisdiction to hear a further appeal on that basis.

[23]    Ms Wang will need to accept that she has exhausted her rights to challenge Kāinga Ora’s decision to terminate her tenancy.

[24]   I make an order under r 15.1 of the High Court Rules striking out these proceedings.

Wilkinson-Smith J

16     Attorney -General v Prince [1998] 1 NZLR 262 (CA) at 267.

17     Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

18 At [33].