Whakatihi v Rent Assured Rotorua Limited
[2019] NZHC 2873
•5 November 2019
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2019-463-75
[2019] NZHC 2873
BETWEEN OLIVE ORIWIA WHAKATIHI
Appellant
AND
RENT ASSURED ROTORUA LIMITED
Respondent
Hearing: 21 October 2019; further submissions 30 October 2019 Appearances:
OO Whakatihi, appellant in person
D Van Den Broek, on behalf of respondent
Judgment:
5 November 2019
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 5 November 2019 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
` Registrar/Deputy Registrar
Date……………
To: O Whakatihi, Rotorua
D Van Den Broek, Rotorua
Whakatihi v Rent Assured Rotorua Limited [2019] NZHC 2873 [5 November 2019]
Introduction
[1] Miss Whakatihi appeals against a decision of Judge Mabey QC in the District Court, which itself was an appeal from a decision of the Tenancy Tribunal in Rotorua (the Tribunal). The appeal to this Court is limited to an appeal on a question of law.1
[2] In summary, Miss Whakatihi is a tenant in a property in Pukehangi in Rotorua. The respondent is the landlord. Miss Whakatihi’s tenancy commenced (on a periodic basis) on 26 January 2018. On 27 March 2019, the respondent served Miss Whakatihi with a 90-day termination notice (the Notice) of her tenancy pursuant to s 51(1)(d) of the Residential Tenancies Act 1986 (the Act). The Notice was a culmination of ongoing disputes and issues between Miss Whakatihi and her then neighbours, which the respondent had sought to but had been unable to resolve. Miss Whakatihi’s neighbours were also served with a 90-day termination notice (and have since left the property).
[3] Miss Whakatihi’s claim before the Tribunal was that in giving the Notice, the respondent was motivated wholly or partly by Miss Whakatihi’s exercise, or proposed exercise, of her right of quiet enjoyment under her tenancy agreement. Miss Whakatihi said that, pursuant to s 54 of the Act, the Notice was accordingly invalid.
[4] The Tribunal dismissed Miss Whakatihi’s claim. On appeal to the District Court, Judge Mabey dismissed her appeal. As noted, Miss Whakatihi now appeals to this Court on a question of law.
[5] In her notice of appeal, Miss Whakatihi says the District Court Judge failed to apply the correct statutory legal test; took into account irrelevant facts; failed to take into account relevant facts; gave relevant facts insufficient weight; and/or made findings of fact based on no evidence, or evidence that was clearly insufficient to support the conclusion drawn.
1 Residential Tenancies Act 1986, s 119.
Some procedural matters
[6] On the second to last working day prior to the hearing in this Court, Miss Whakatihi applied for an adjournment of the hearing on the basis that she had been seeking, but had not received, a copy of the underlying Tribunal file which, pursuant to s 117 of the Act, would have been provided to the District Court (upon Miss Whakatihi’s appeal having been lodged with that Court). Having made inquiries, I was provided with a copy of the Tribunal’s file which had been provided to the District Court, as well as a copy of a transcript of the appeal hearing before the District Court itself.
[7] There is no record of Miss Whakatihi requesting a copy of the underlying Tribunal file in the context of the District Court appeal. However, as that file had been made available to the District Court Judge, I considered it was appropriate for her to have a copy of it. Accordingly, at the outset of the appeal hearing before me, I made copies of the Tribunal file available to both Miss Whakatihi and the respondent. I also provided the parties with a copy of the transcript of the legal discussion before Judge Mabey. I noted that the latter is not ordinarily done, but given I had the materials available and to ensure Miss Whakatihi had a full opportunity to present her case before me, I was comfortable in doing so. I stood the matter down for a time to enable Miss Whakatihi to review the materials (many of which were documents and text messages and the like which she would have already seen). I also made timetabling orders permitting either party to file supplementary submissions on the appeal in light of these materials.
[8] Miss Whakatihi took the opportunity to file supplementary submissions, though the respondent waived its right to do so. Miss Whakatihi also purported to file an “affidavit” with her supplementary submissions. I had not granted leave to file any further evidence on the appeal, which would be highly unusual on a second appeal in any event, and particularly one on a question of law only. Further, Miss Whakatihi’s “affidavit” was neither sworn nor affirmed (despite her being requested to do so by Registry staff). I have accordingly put that document to one side and have not taken it into account.
[9] In her supplementary submissions, Miss Whakatihi says that she has not been provided with the Notes of Evidence from the Tribunal. She points to this Court’s decision in Kelly v Portfolio Property NZ Ltd, in which a District Court judgment was set aside on the basis the Judge did not have before him the oral evidence from the Tribunal hearing.2 In that case, a witness summons had been issued by the Tribunal and a direction that the witness be cross-examined at the hearing. The Notes of Evidence in relation to that witness were, however, largely incomplete because the evidence was inaudible when transcribed. In that context, Thomas J held that the District Court Judge ought to have exercised his discretion under r 18.20 of the District Court Rules to rehear that evidence.
[10] I accordingly caused further inquiries to be made of the Tribunal in this regard. The adjudicator who heard the matter in the Tribunal confirmed there was no evidence given in the hearing, in terms of witnesses giving evidence and being cross-examined (rather than submissions being made by each party on the materials provided and exchanges between the adjudicator and the parties in that regard). That explains the absence of any Notes of Evidence from that forum.
[11]I now turn to the factual background to the Notice in more detail.
Factual background
[12] As noted, the respondent issued the Notice to Miss Whakatihi in March 2019. The respondent placed various materials before the Tenancy Tribunal adjudicator to support its submission that the issuing of the Notice to Miss Whakatihi (and her neighbour) was not in retaliation to Miss Whakatihi insisting on a right of quiet enjoyment under the tenancy agreement, but as a “last resort” step to dealing with a serious dispute between neighbours. Those materials demonstrate an ongoing dispute between the two neighbours and various allegations and counter-allegations between them. As the District Court Judge (rightly) stated, “the documents disclose a clear conflict between the tenants of both properties”.3
2 Kelly v Portfolio Property NZ Ltd [2017] NZHC 915.
3 Whakatihi v Rent Assured NZ Ltd [2019] NZDC 15072 at [10].
[13] As the District Court Judge also rightly noted, it was not necessary for the Tribunal, the District Court, nor this Court, to make any factual findings or reach any conclusions on the allegations and counter-allegations between the neighbours, or to effectively conclude who was “right” and who was “wrong”. That is an important point, which does not appear to be reflected in Miss Whakatihi’s submissions. Rather, the sole issue for the Tribunal (and on appeal to the District Court) was whether the motivation for the respondent issuing the Notice was as set out in s 54 of the Act.
[14] Included in the Tenancy Tribunal file are various texts between Miss Whakatihi and the respondent raising issues with her neighbours. It appears from those materials that the respondent was discussing the various allegations between the neighbours with each set of neighbours, and seeking to find a resolution. For example, in an email of 8 January 2019, the respondent stated:
It is common for neighbours to have disputes when they live in close proximity this often means one party will move on to a home that is more respectful. If you are looking to find a new home we will be happy to provide a written reference for you and [your son].
We have contacted your neighbours with a similar letter and hope you can put your differences behind you.
[15] In the same email, the respondent stated they would not consider taking civil action against the neighbours at that time, “as there is no proof of any untoward issues”.
[16] In a further email from the respondent to Miss Whakatihi, the respondent stated:
Tracie Williams has talked to me about your concerns and the issues again of last night with tenants in rear property.
As Tracie mentioned to you yesterday about needing evidence so that we can have proof. Could you get a friend to help you with your phone so you can collect evidence of your concerns.
At the moment we have both you and your neighbour with differing views.
Without evidence we can take no further action. Threatening to take us to the Tenancy Tribunal over this is not helpful either.
We will keep an eye out for another home for you.
[17] Also on the file is correspondence from two contractors that had visited Miss Whakatihi’s premises, a painter and heat pump service repairer. Miss Whakatihi claims that the painter threw bolts and stones at her dog Max. A statement by the painter was before the Tribunal who stated:
During the month of February, 2018, whilst painting her roof she began accusing me of throwing stones at her dog. Being an avid dog owner myself and knowing better, I ignored her and continued on with my work. She then began throwing stones up at me continuously yelling abusive foul language. I did not deserve to be spoken to nor treated that way hence I have decided to write this letter of complaint.
[18]A communication from the heat pump repair company to the respondent stated:
Upon arrival he set about to instruct on cleaning the filters which the tenant that is not her responsibility (sic) and promptly ordered him off the property. She was quite aggressive at the time.
[19] As a result of these matters, the property manager for the respondent informed Miss Whakatihi that she would meet any contractors going forward at the property if work needed to be done in relation to it.
[20] I note that neither of these contractors, nor Miss Whakatihi’s neighbours (or their friends) who wrote letters of complaint in relation to her behaviour (which were before the Tribunal) were called by the respondent to give evidence and thus able to be cross-examined by Miss Whakatihi. Nor were they summonsed by the Tribunal.
The Tribunal’s decision
[21] The Tribunal’s decision is recorded in its written decision dated 6 May 2019. The Tribunal adjudicator noted that both parties attended the hearing. The adjudicator stated that:4
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any act, or by any complaint against the landlord.
4 Whakatihi v Rent Assured NZ Ltd [2019] NZTT Rotorua 4185623 at [6].
[22] The adjudicator summarised Miss Whakatihi’s position, and her complaints in relation to her neighbours’ behaviour. The adjudicator noted Miss Whakatihi’s submission that she received the Notice because of her complaints against her neighbours.
[23] The adjudicator then recorded the respondent’s position, namely that Miss Whakatihi and the neighbouring tenants had been making complaints about each other and that a 90-day notice was issued to both to end the dispute. The adjudicator noted the respondent’s characterisation of the issue as a “he said, she said saga”. The respondent had asked each set of tenants for evidence in relation to the complaints. The adjudicator also referred to the written statements from the painter and heat pump repair man and the three written statements from three tenants. The adjudicator also referred to a transcript of a verbal exchange between Miss Whakatihi and her neighbours on 23 March 2019. Ms Van Den Broek confirmed at the hearing before me that transcript had been prepared by her.
[24] The adjudicator found that the respondent did take reasonable steps to try to sort out the problems between the neighbours, as both were reminded to be respectful given they were living in close proximity. The adjudicator also stated, “it was also reasonable of the landlord to request some form of evidence from each tenant to back up their respective claims”. The adjudicator stated that “Miss Whakatihi was unable to provide any documentary evidence to corroborate her claims and there is a direct conflict of views as to who was the aggressor or instigator”. The adjudicator then said:5
I find that in the recording provided, Ms Whakatihi was the only person using aggressive and abusive language; but I am also mindful that it was only a snapshot and does not show the context of full interaction between the parties.
[25] Ultimately, the adjudicator concluded that they were not persuaded the respondent’s motivation in giving the notice was in retaliation, rather describing it as:6
…. a last resort to end the ongoing and seemingly intractable dispute between neighbouring tenants. The dispute seems to be escalating and I agree that the
5 At [13].
6 At [14].
only fair, sensible and reasonable resolution was for both parties to be given their notice to move on.
The District Court decision
[26] In his reserved judgment on the appeal to the District Court, Judge Mabey recorded that he had seen the documents that were available to the Tribunal at the hearing and that he had reviewed all of them. He recorded the parties’ respective positions and also discussed the test pursuant to s 54 of the Act. Having considered the plain and ordinary meaning of the statutory section and dictionary definitions of the concept of “motivation”, the Judge summarised the test as follows:7
Thus for the Tribunal to rule that the 90-day notice given to Olive was invalid it must establish on balance that, at least in part, the reason for the notice was Olive asserting her right to quiet enjoyment of the property.
[27] The Judge also noted that, although not expressly stated in s 117 of the Act, appeals to the District Court from the Tenancy Tribunal are by way of rehearing on the Tribunal’s record. This is consistent with the concept of a rehearing as described by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.8 The Judge also referred to the following extract from Housing New Zealand Corporation v Salt:9
[14] There is something akin to a presumption that the decision appealed from is correct and it is also customary for this Court to exercise restraint in interfering with discretionary decisions.
[15] Thus, ordinarily, the appellate body will only differ from the factual findings of the decision maker at first instance if:
(a)The conclusion reached was not open on the evidence, that is, where there is no evidence to support it; or
(b)The lower body was plainly wrong in the conclusion it reached.
[28] The Judge then said the following in relation to his review of the materials from the Tribunal:
[35] I have considered all of the information available to the Tribunal. At the appeal hearing I heard directly from the parties that appeared before the Tribunal and have had the benefit of their oral submissions together with written submissions filed by Olive.
7 Whakatihi v Rent Assured NZ Ltd, above n 3, at [23].
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
9 Housing New Zealand Corporation v Salt [2008] DCR 697.
[36] On all of the information available to me I am more than satisfied that the Tribunal was correct in its ruling. There is not a hint of retaliation in the actions of the landlord and Olive has not persuaded me that the 90 day notice given to her was motivated wholly or in part by retaliation for her insistence upon her right to quiet enjoyment.
[37] Undoubtedly she has that right. Undoubtedly she is entitled to insist upon it. However, I am quite satisfied that the landlord, in the form of Ms Van Den Broek and Ms Williams, went to considerable length to quell the dispute between the neighbours, acted in response to Olive’s complaint and those of the neighbours and as a last resort gave notice to both tenants.
[38] The independent evidence of the trademan (sic) who were subject to Olive’s calumny was persuasive before the Tribunal and is persuasive before me.
[39] For whatever reason Olive was unable to get on with the occupants of 5B Spinel Place. I do not know if her allegations against them are true or false. I do not know if the tenants at 5B Spinel Place have made false allegations against Olive. What I do know is that the landlord was placed in an impossible position after considerable efforts to deal with the problem and exercised a legal right under s 51 of the Act to terminate the tenancy. That right was lawfully exercised and there is no basis at all for Olive’s claim that the notice was retaliatory.
[40] For that reason Olive’s appeal is dismissed, the interim order staying the notice is revoked with the consequence that Olive must now vacate in accordance with that notice.
[Emphasis added]
[29] The Judge issued a stay of enforcement of his judgment pending Miss Whakatihi’s appeal to this Court.
Submissions
Miss Whakatihi’s submissions
[30] Miss Whakatihi raises four grounds of appeal in her notice of appeal as follows:
(a)Did the decision maker err in law by failing to apply the correct statutory legal test to the relevant facts established to the correct standard and by examining the fundamental question:
On the balance of probabilities, was the landlord motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy?
(b)Did the decision maker err in law by taking into account irrelevant facts in arriving at the conclusion that the notice could not be held to be of no effect.
(c)Did the decision maker err in law by excluding relevant facts, or by giving relevant facts insufficient weight, in arriving at the conclusion that the notice could not be held to be of no effect.
(d)Did the decision maker err in law by finding facts on no evidence, or on evidence that was clearly insufficient to support the conclusion, that the notice could not be held to be of no effect.
[31] At the hearing before me, and in her written submissions filed in advance, Miss Whakatihi did not advance any particular issue with the statutory test that the District Court Judge adopted (and set out at [26] above). I am satisfied the Judge has correctly identified the legal test to be applied under s 54 of the Act. Miss Whakatihi confirmed that the essence of her appeal is that there was simply no or insufficient evidence upon which the District Court Judge could reach the conclusion he did. She was particularly concerned with the reliance placed by both the Tribunal and the Judge on the written statements by the contractors who were not called to give viva voce evidence and therefore not cross-examined, together with the reliance on the transcript of the interaction between Miss Whakatihi and her neighbours which had been provided to the Tribunal. Miss Whakatihi raised a concern that this was a “snapshot” only of the interactions between her and her neighbours (as the Tribunal adjudicator had noted), but nevertheless appears to have had significant weight put on it. Miss Whakatihi submits:
The evidence provided was, in this submission, documentary hearsay, unsworn or affirmed and unable to be tested by cross-examination by the appellant or by questions from the adjudicator. The appellant was not given the opportunity to rebut this alleged evidence.
[32] Miss Whakatihi further notes that she had two sets of neighbours prior to the dispute arising and had no issues with those neighbours. She also submits:
… the fact that both tenants (5A and 5B) were issued with simultaneous 90- day notices should at least have raised the concern that “on the face of it” these notices could be motivated at least partly by either the appellant or the neighbours at 5B, or both, exercising their rights under s 38 of the RTA 1986 to quiet enjoyment.
[33] Accordingly, Miss Whakatihi submits that over-reliance on the written statement of the tradesmen (being in her submission, irrelevant and deficient evidence)
and reliance on a “snapshot” only of her relationship with her neighbours did not provide sufficient support for the Tenancy Tribunal’s findings, nor the District Court Judge’s findings having reviewed that material. Miss Whakatihi also takes issue with the transcript of the cell phone video recording having been prepared by Ms Van Den Broek, rather than an independent party.10 In her supplementary submissions, Miss Whakatihi also takes issue with the District Court Judge’s reference to “the independent evidence of the tradesman (sic) who were subject to Olive’s calumny”,11 given, as noted, those tradesmen were not called to give evidence at the Tribunal hearing and subject to cross-examination.
Respondent’s submissions
[34] The respondent points to this being an appeal on a question of law only and highlights the discussion of the nature of such an appeal by Duffy J in Anderson v FM Custodians Ltd (set out in full below).12 The respondent says Miss Whakatihi’s appeal is an appeal against the factual findings made in the Tribunal and the District Court, effectively “dressed up” as an appeal on a question of law.
[35] The respondent refers to Judge Ongley’s statement in Kerr v Woodham that the issue is whether a notice was given in retaliation or for “genuine and fair reasons”.13 The respondent notes this was recently referred to with approval by Venning J in Douglas v Sutter Ltd.14 The respondent also refers to other District Court decisions in which it has been held that 90-day notices have not been issued for retaliatory reasons, including legitimately in response to an irretrievable breakdown in the relationship between landlord and tenant, and in response to written complaints to both the landlord and Police in relation to the appellant’s behaviour.15
[36] The respondent further submits there was ample evidence to support the finding that the respondent was motivated by genuine and proper reasons in issuing
10 I note, however, that Miss Whakatihi has not pointed to any specific concerns or alleged errors with the transcript.
11 Whakatihi v Rent Assured NZ Ltd, above n 3, at [38].
12 Anderson v FM Custodians Ltd [2013] NZHC 2423, (2013) 15 NZCPR 123.
13 Kerr v Woodman DC Porirua 244/88, 3 November 1988 at 4.
14 Douglas v Sutter Ltd [2018] NZHC 137.
15 Hooker v Abode Acquisitions Ltd DC Napier CIV-2011-041-83, 13 April 2011; Franicevic v KGH Trust [2016] NZDC 10582.
the Notice; namely, an intractable dispute between neighbours. The respondent says that it is not the role of this Court to interfere with factual findings and the assessment of the relevant materials by the earlier decision-makers, though does accept that a question of law will extend to whether there is no evidence or no sufficient evidence to support the conclusions reached.
Approach
[37] As noted, this appeal proceeds by way of a question of law. As noted, I do not consider the Judge erred in his formulation of the statutory test to be applied in s 54 of the Act.
[38] It is correct, however, that a question of law can extend to the type of appeal advanced by Miss Whakatihi, namely that there is no or insufficient evidence to support the findings actually reached. In Anderson v FM Custodians Ltd, Duffy J summarised the approach as follows:16
[31] It is clear from the wording of this section that this Court can only be concerned with questions of law, so the approach identified in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 does not apply. The later reference in s 119(2) to the application of the High Court Rules, which would include the rule in Part 20 that appeals to this Court are to be by way of rehearing, cannot override the clear language of s 119(1). The procedural rules on appeals to this Court must be tailored to meet the clear language of s 119(1).
[32] For an appeal on a question of law, the approach is that which was applied in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[27], and later confirmed in Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [5]-[55]. In short, this Court is not to substitute its own views for that of the lower Court; instead the Court must consider whether the decisions under appeal reveal a misinterpretation and/or misapplication of the statutory powers in the RT Act, and if not, whether what has been decided is so misconceived that it is an unlawful decision: see Vodafone New Zealand Ltd at [50]. The respondents have argued that a substantial part of the appellants' argument relies on allegations of factual errors in the decisions below. The respondents are correct that, unlike with general appeals, the right of appeal in this case does not allow argument based on factual error. However, as was recognised in Vodafone New Zealand Ltd and in Bryson, there are the rare occasions where “an ultimate conclusion of a fact finding body can sometimes be so insupportable — so clearly untenable — as to amount to an error of law, because proper application of the law requires a different answer”: see Vodafone New Zealand Ltd at [52]. The Supreme Court drew these principles
16 Anderson v FM Custodians Ltd, above n 12, at [31]-[34].
from the well known case of Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL) where the House of Lords set out the limited circumstances in which an appellant on an appeal on a point of law could raise questions challenging a decision-maker's findings of fact. These were (at [52] of Vodafone New Zealand Ltd):
“a state of affairs ‘in which there is no evidence to support the determination’, or ‘one in which the evidence is inconsistent with and contradictory of the determination’, or ‘one in which the true and only reasonable conclusion contradicts the determination’.”
[33] However, the Supreme Court in Vodafone New Zealand Ltd recognised that a court should be slow to reach the view that the decision under appeal is based on an untenable conclusion on the facts (at [53]):
“Some caution is, however, required of the appeal court in assessing whether the decision-maker has reached an untenable conclusion on the facts. In Bryson this Court took notice of the observation by Lord Donaldson MR in Piggott Brothers & Co Ltd v Jackson [[1992] ICR 85 at 92] that:
‘It does not matter whether, with whatever degree of certainty, the appellate court considers it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option.
[34] Thus, while the bar is set high, it is possible to challenge factual findings that come within the limited range of circumstances where this has been permitted.
[39] As already noted, Miss Whakatihi has raised a number of issues about the quality of the “evidence” before the Tribunal, and in particular, that none of the tradesmen or neighbours (or their friends) were called to give evidence. In this context, I observe that s 97(4) of the Act provides that:
Subject to section 89, the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law.
[40] Accordingly, there was no error in the Tribunal receiving into evidence the materials about which Miss Whakatihi complains, or that material forming part of the record on which Judge Mabey made his decision. What weight the Tribunal and Judge Mabey put on those materials is a matter for them.
Discussion
[41] Having reviewed the parties’ submissions and the materials before the Tenancy Tribunal, the record of the hearing before the District Court, the decisions reached in the Tribunal and the District Court, and the further materials put before me, I am satisfied the appeal must be dismissed.
[42] As the respondent notes, this is an appeal on a question of law. It is important on such appeals that the appeal court does not substitute its own views on factual determinations made by the courts below, save in those rare circumstances discussed in Bryson and Anderson v FM Custodians.17
[43] I am satisfied that those circumstances do not arise in the current case. I have fully reviewed the underlying Tenancy Tribunal file and Miss Whakatihi’s various submissions in relation to those materials. As I have flagged earlier, it is important to recognise that the relevant issue in this case is not who was right or wrong in the dispute between the two sets of tenants, but whether Miss Whakatihi satisfied the Tribunal that the Notice was issued in breach of s 54. There is clear evidence that there was a serious and escalating dispute between Miss Whakatihi and her neighbours. That does not, in the event, appear to be in contention. There is also ample evidence that the respondent tried on a number of occasions to resolve that dispute to no avail. It is also clear that it took an even handed approach, and sought evidence from each party, rather than relying on allegations only. That even-handed approach extended to ultimately issuing both tenants with 90-day notices.
[44] In this context, I concur with the District Court Judge that there is ample evidence that the issuing of the Notice (and that issued to the other tenant) was not “motivated wholly or partly by the exercise or the proposed exercise by the tenant” of any rights under the tenancy agreement, but rather as a last resort in the context of an ongoing and intractable dispute between neighbours. I consider the approach taken by the respondent to have been fair and reasonable in those circumstances.
17 See [38] above.
[45] I note the Judge’s comment concerning “Olive’s calumny”. But as the quoted extract from the Judge’s decision set out at [26] indicates, the Judge was fully alive to the fact that it was not necessary to form any views on the rights or wrongs as to the overall dispute, but rather, for the purposes of s 54 of the Act, to focus on the “motivation” for the respondent issuing the Notice. For the reasons set out above, having reviewed the materials in this case, I consider there was ample evidence for the Judge to reach the conclusion he did on that issue.
[46] Accordingly, I find the current circumstances to fall well below the threshold envisaged in Bryson where a lack of evidence will be elevated to an error of law.
[47] The appeal is accordingly dismissed. As a result, I also lift the stay of enforcement of the District Court judgment.18
[48] Miss Whakatihi requests that, if the appeal is dismissed, the Court confirm that the Notice does not act “retrospectively”, but only operates going forward as from the time the stay is listed, such that she has a further three months in which to vacate the property. I do not accept that submission. A 90-day notice was given, and the Tribunal, the District Court and this Court have found that it was validly given. The 90-day period has already expired. Miss Whakatihi has had the benefit of a stay while her appeal rights are pursued. It would be quite wrong in principle to effectively “start the clock again” on the Notice, as if it had only been issued as of the date of this judgment.
[49] The respondent requests that this Court exercise its inherent jurisdiction and make an order granting immediate possession of the property to the respondent “to bring this matter to a full and final conclusion and avoid further prejudice to the respondent”. The respondent submits that the granting of the stays in both the District Court and High Court pending the outcome of the appeal has prevented the respondent from being able to apply to the Tribunal for an order for possession of the property. However, in granting the stays, the courts were clearly of the view that that was an appropriate outcome in the circumstances. I do not consider it appropriate to make an
18 Which had been ordered by Judge Mabey on 27 August 2019 given Miss Whakatihi’s appeal to this Court.
order granting immediate possession of the property to the respondent (even if I had the jurisdiction to do so).
[50] The respondent also seeks an order that Miss Whakatihi pay its disbursements in having a solicitor assist in preparing the submissions on the present appeal. The solicitor’s invoice, in the sum of $633.00 has been provided to the Court. On the face of it, that invoice is fair and reasonable. I also accept the respondent’s submission that sums paid to a solicitor to help lay litigants in preparing documents and preparing and arguing the case in person can be recovered.19
[51] But in this case, the respondent is a company. It ought to have been represented by a solicitor in all aspects of this appeal. As noted in earlier minutes on this file, the respondent was granted a significant indulgence in being permitted to be represented by Ms Van Den Broek at the hearing rather than a solicitor. The respondent has accordingly avoided incurring much more significant legal costs by not engaging a lawyer in the ordinary way. Further, had the respondent been represented by counsel in the ordinary way, and had been awarded scale costs as a result, that award would inevitably not have extended to the respondent’s full, actual costs. In other words, it still would have been “out of pocket” to a certain extent had it been represented by counsel. Nor would there have been any basis to award indemnity costs against Miss Whakatihi. Despite my finding that her appeal lacked merit, she conducted the appeal appropriately and filed balanced and helpful submissions.
[52] In these circumstances, I do not consider it appropriate to award the respondent the cost of their solicitor’s assistance.
Result
[53]Miss Whakatihi’s appeal is dismissed.
[54]I make no orders as to costs.
S Fitzgerald J
19 Working Capital Solutions Holding Ltd v Pezaro [2014] NZHC 2480 at [14]-[19].
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