Wang v Kāinga Ora - Homes and Communities

[2025] NZHC 43

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-003197

[2025] NZHC 43

UNDER

the Residential Tenancies Act 1986

IN THE MATTER OF

an application for interim relief pending appeals

BETWEEN

MEI WANG

Appellant

AND

KĀINGA ORA – HOMES AND COMMUNITIES

Respondent

Hearing:	15 January 2025
Appearances:	Appellant self-represented F F Nizam for respondent
Judgment:	3 February 2025

REASONS JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 3 February 2025 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Luke Cunningham & Clere, Wellington

WANG v KĀINGA ORA – HOMES AND COMMUNITIES [2025] NZHC 43 [3 February 2025]

[1]                  During a telephone conference on 15 January 2025, Mei Wang sought to extend an order made by Muir J on 9 January 2024, prohibiting her eviction from a dwelling owned by Kāinga Ora in Ōtāhuhu, pending the determination of appeals brought against decisions of a District Court Judge.

[2]                  I declined to extend Muir J’s order, indicating that I would issue reasons, and address the appeals, later. I now do so.

Background

[3]                  Kāinga Ora – Homes and Communities is a Crown entity, established under the Kāinga Ora – Homes and Communities Act 2019.1 Its functions include “to provide rental housing, principally for those who need it most”.2

[4]                  The dwelling in Ōtāhuhu has three bedrooms. Ms Wang commenced to live there, on her own, in accordance with a tenancy of social housing, in December 2022. In June 2023, Kāinga Ora sought access to the dwelling, it says for the purpose of ensuring its compliance with the Healthy Homes standards.3

[5]                  On 26 October 2023, the Tenancy Tribunal directed Ms Wang to allow Kāinga Ora access. Ms Wang applied to the Tribunal for a rehearing of Kāinga Ora’s application for access, but the Tribunal dismissed Ms Wang’s rehearing application.

[6]                  In the meantime, Kāinga Ora issued a notice to terminate Ms Wang’s tenancy. The notice was issued with reference to s 53B of the Residential Tenancies Act 1986 (the Act). That provision permits the termination of tenancies of social housing in various circumstances, including (in the case of tenancies such as Ms Wang’s) where Kāinga Ora considers that transfer to different social housing is “necessary or desirable for any reason” and “[that] other housing is appropriate for the tenant’s housing needs as most recently assessed (regardless of when that assessment took place)”.

1      Kāinga Ora – Homes and Communities Act 2019, ss 8 and 9(1).

2      Section 13(1).

3      Residential Tenancies (Healthy Homes Standards) Regulations 2019, applicable to Kāinga Ora from 1 July 2024 (see schedule 1, cl 2(1)).

Kāinga Ora had, and continues to  have,  a  one-bedroom  dwelling  available  for  Ms Wang, which it has assessed as appropriate for her needs.

[7]                  On 22 May 2024, the Tribunal terminated Ms Wang’s tenancy of the dwelling, and granted Kāinga Ora possession.4 Ms Wang’s application for rehearing in respect of that decision was dismissed on 4 June 2024.

[8]                  In accordance with her entitlement under  s  117(1)  and  (1A)  of  the Act, Ms Wang appealed to the District Court against the Tribunal’s decisions to refuse to grant rehearings. By judgment dated 27 November 2024, Judge D J Clark dismissed Ms Wang’s appeals.5

[9]                  By a “notice of appeals” filed in this Court on 10 December 2024, Ms Wang sought to appeal Judge Clark’s decisions. And by a “notice of interlocutory application for stay of proceedings” filed on 23 December 2024, Ms Wang sought what she described as a “stay of proceeding taken under [the proceedings in which Kāinga Ora obtained an access order and termination of the tenancy]”. Plainly, the relief Ms Wang sought was in the nature of a stay of enforcement, prohibiting her eviction, pending determination of her “appeals” in this Court.

Justice Muir’s order

[10]              Justice Muir’s order of 9 January 2025 was made in circumstances of apparent urgency, during this Court’s long vacation. In addition to the appeal notice, the application for interim relief, and an affidavit in support, the Judge was provided a copy of an eviction notice issued by a bailiff of the Tenancy Tribunal, indicating that Ms Wang was required to leave the dwelling by 1 pm on 10 January 2025. The Judge made an interim order, styled as a “stay”, in effect preventing Ms Wang’s eviction. The interim order was to expire on 15 January 2025.

[11]              In the meantime, the Judge directed that  Kāinga Ora be served,  and that    Ms Wang’s interlocutory application be heard before me, as duty Judge, by way of teleconference on 15 January 2025. In making his order, Muir J observed that it was

4      Kāinga Ora – Homes and Communities v Wang [2024] NZTT 4858402.

5      Wang v Kāinga Ora – Homes and Communities [2024] NZDC 28175.

not clear Ms Wang had an entitlement to bring further appeals before this Court, and that their grounds were “not immediately attractive”.

The teleconference on 15 January 2025

[12]                Prior to the teleconference, Ms Wang filed a memorandum seeking  that Muir J’s order be extended, and that the matter be determined on the papers. Ms Wang pointed out that:

(a)She prefers service by post. She might not have time to receive and consider Kāinga Ora’s response to service of her proceeding (undertaken not by Ms Wang but by the Registry in accordance with Muir J’s order).

(b)She suffers from mental illness, and may suffer overwhelming stress during the teleconference, impacting on her ability to represent herself.

[13]              I resolved to maintain the teleconference, permitting Ms Wang to appear should she wish to do so, given:

(a)the apparent lack of merit in Ms Wang’s proceedings in this Court;

(b)it being her own failure to serve the proceeding on Kāinga Ora, and her insistence notwithstanding the urgency of her application upon service by post, which caused any disadvantage arising from any inability to address Kāinga Ora’s submissions; and

(c)the fact that she has represented herself throughout, including when frequently seeking adjournment of hearings without clear justification.

[14]              In the event, Ms Wang appeared at the teleconference by presenting herself at the Registry and being provided with a room and a telephone connection. During the teleconference, she was able in my view to fully explain her position before appearing to become upset and cutting the connection.

Ms Wang’s position

[15]              In essence, Ms Wang submitted that her mental illness requires that she reside in the three-bedroom dwelling in which she  currently  resides.  She  said  that Kāinga Ora should not require her to live elsewhere. Ms Wang noted that she had not stated this requirement in the paperwork filed in support of the proceeding in this Court, but sought that it be considered.

[16]              Ms Wang also relied on her written grounds. Her notice of application is directed to “disputed parts and omitted parts” of the District Court Judge’s decision, “clerical errors and materiality errors” in that decision, and “procedural unfairness”. Her affidavit referred again to these matters, and added that Kāinga Ora had not met a “burden of proof” establishing compliance with the Act.

Issues for consideration

[17]              Ms Wang’s interlocutory application sought the exercise of this Court’s discretion, under s 20.10 of the High Court Rules 2016, to stay enforcement of the Tribunal’s decisions of 26 October 2023 and 22 May 2024 pending determination of her further appeals. I was required to engage in a balancing exercise, weighing up the positions of both parties.6 The ultimate issue for consideration was where the overall interests of justice lay.

Reasons

[18]              I found the overall interests of justice lay with refusing to extend the stay, because:

(a)It is at least strongly arguable that Ms Wang’s proceeding in this Court was brought without jurisdiction. Section 119 of the Act permits appeals from decisions of District Court Judges on appeal from the Tenancy Tribunal only upon points of law. Ms Wang’s “appeals” cite only evidential and procedural concerns.

6      Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA); Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd [1999] 3 NZLR 239, (1999) 13 PRNZ 48 (HC).

(b)Even if substantive consideration of the merits of Kāinga Ora’s decision to re-house Ms Wang in a one-bedroom dwelling were possible, there was no material before this Court suggesting that her condition requires her, on her own, to occupy a three-bedroom dwelling.  On its face,  Ms Wang’s refusal to move homes, in that way permitting a family in need of social housing to move from Kāinga Ora’s waiting list for non-temporary housing, is unreasonable.

(c)Ms Wang’s conduct of her District Court appeal, obtaining two adjournments before failing to appear at the adjourned fixture, suggests awareness on her part of the lack of merit in her proceeding and an inclination to bring proceedings for the simple sake of delay. And it undermines the apparent bona fides of her proceeding in this Court.

(d)Even if Ms Wang re-housed prior to her proceeding in this Court being decided, they would not be rendered nugatory. The Court’s ruling would imply Ms Wang had been evicted unlawfully, and she would obtain an enforceable right to reinstatement of a suitable tenancy. There was no evidence before me suggesting Ms Wang might suffer irremediable harm if not housed in a three-bedroom dwelling during the period in which she was prosecuting this proceeding.

Ms Wang’s “appeals”

[19]              I have noted that Ms Wang’s “appeals” in this Court appear to have been brought without jurisdiction, as failing to identify a point of law upon which it is based. Whether the proceeding in this Court has been brought without jurisdiction requires prompt determination.

[20]              The proceeding is to  be  listed  for  mention  in  the  appeals  list  on Tuesday, 11 February 2025 at 9 am. The Judge presiding on that occasion may be inclined to consider whether to exercise the jurisdiction under r 15.1 of the High Court Rules to strike out Ms Wang’s proceeding.

[21]              To assist the Judge, Ms Wang is directed to file and serve a memorandum no later than 5 pm on Friday, 7 February 2025, identifying any point of law that she wishes to argue on appeal.

Johnstone J