Winther v Housing New Zealand Corporation

The appeal is brought by three tenants who seek to challenge the decision of Housing New Zealand to terminate their tenancies. The Tenancy Tribunal had found that it lacked jurisdiction to determine the merits of the tenants' discrimination claims against the landlord. This finding was upheld on appeal to the District Court and the High Court. The tenants sought leave to appeal to the Court of Appeal which was granted on the basis that important questions of law were involved. The questions of law were: (1) does the Tenancy Tribunal have jurisdiction to determine whether the landlord's decision to terminate the tenancies was based on unlawful discrimination against the tenants as tenants? (2) if the decision to terminate was based on unlawful discrimination, are the 90 day termination notices legally effective? and (3) if the decision to terminate was based on unlawful discrimination, does the Tenancy Tribunal (or the District Court or High Court on appeal) have power to refuse to make a possession order based on the notice? The Court of Appeal held that the Tenancy Tribunal does not have jurisdiction to determine whether the landlord's decision to terminate the tenancies was based on unlawful discrimination against the tenants. Any such question must be determined under the Human Rights Act 1993 by the processes established for the purpose thereunder. If the decision to terminate was based on unlawful discrimination, the 90 day termination notices are legally effective unless and until a finding is made by the Human Rights Review Tribunal that the landlord contravened Part 1A of the Human Rights Act 1993 and thereby committed an unlawful act under s 12(1) of the Residential Tenancies Act 1986. If the decision to terminate was based on unlawful discrimination, the Tenancy Tribunal has power to refuse to make a possession order based on the 90 day notices. The District Court has the same powers as the Tenancy Tribunal on appeal and could likewise refuse to make a possession order in these circumstances. Any appeals to the High Court are limited to questions of law but the Court has wide powers to make such orders as it considers just. The appeal is dismissed. The respondent is to pay costs to the appellants for a complex appeal on a Band A basis with usual disbursements. The interveners are to bear their own costs.