Whakatihi v Rent Assured Rotorua Limited [2019] NZHC 2873

Whakatihi v Rent Assured Rotorua Limited [2019] NZHC 2873 [5 November 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2019-463-75[2019] NZHC 2873BETWEEN OLIVE ORIWIA WHAKATIHIAppellantAND RENT ASSURED ROTORUA LIMITEDRespondentHearing: 21 October 2019; further submissions 30 October 2019Appearances: OO Whakatihi, appellant in personD Van Den Broek, on behalf of respondentJudgment: 5 November 2019JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 5 November 2019 at 4 pm,pursuant to Rule 11.5 of the High Court Rules.`Registrar/Deputy RegistrarDateTo: O Whakatihi, RotoruaD Van Den Broek, RotoruaIntroduction[1] Miss Whakatihi appeals against a decision of Judge Mabey QC in the DistrictCourt, 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 periodicbasis) on 26 January 2018. On 27 March 2019, the respondent served Miss Whakatihiwith a 90-day termination notice (the Notice) of her tenancy pursuant to s 51(1)(d) ofthe Residential Tenancies Act 1986 (the Act). The Notice was a culmination ofongoing disputes and issues between Miss Whakatihi and her then neighbours, whichthe respondent had sought to but had been unable to resolve. Miss Whakatihi'sneighbours were also served with a 90-day termination notice (and have since left theproperty).[3] Miss Whakatihi's claim before the Tribunal was that in giving the Notice, therespondent was motivated wholly or partly by Miss Whakatihi's exercise, or proposedexercise, of her right of quiet enjoyment under her tenancy agreement.Miss Whakatihi said that, pursuant to s 54 of the Act, the Notice was accordinglyinvalid.[4] The Tribunal dismissed Miss Whakatihi's claim. On appeal to the DistrictCourt, Judge Mabey dismissed her appeal. As noted, Miss Whakatihi now appeals tothis Court on a question of law.[5] In her notice of appeal, Miss Whakatihi says the District Court Judge failed toapply the correct statutory legal test; took into account irrelevant facts; failed to takeinto account relevant facts; gave relevant facts insufficient weight; and/or madefindings of fact based on no evidence, or evidence that was clearly insufficient tosupport 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 hadbeen 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 (uponMiss 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 theDistrict Court, as well as a copy of a transcript of the appeal hearing before the DistrictCourt itself.[7] There is no record of Miss Whakatihi requesting a copy of the underlyingTribunal file in the context of the District Court appeal. However, as that file had beenmade available to the District Court Judge, I considered it was appropriate for her tohave a copy of it. Accordingly, at the outset of the appeal hearing before me, I madecopies of the Tribunal file available to both Miss Whakatihi and the respondent. I alsoprovided the parties with a copy of the transcript of the legal discussion before JudgeMabey. I noted that the latter is not ordinarily done, but given I had the materialsavailable and to ensure Miss Whakatihi had a full opportunity to present her casebefore me, I was comfortable in doing so. I stood the matter down for a time to enableMiss Whakatihi to review the materials (many of which were documents and textmessages and the like which she would have already seen). I also made timetablingorders permitting either party to file supplementary submissions on the appeal in lightof 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 filean "affidavit" with her supplementary submissions. I had not granted leave to file anyfurther evidence on the appeal, which would be highly unusual on a second appeal inany 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 byRegistry staff). I have accordingly put that document to one side and have not takenit into account.[9] In her supplementary submissions, Miss Whakatihi says that she has not beenprovided with the Notes of Evidence from the Tribunal. She points to this Court'sdecision in Kelly v Portfolio Property NZ Ltd, in which a District Court judgment wasset aside on the basis the Judge did not have before him the oral evidence from theTribunal hearing.2 In that case, a witness summons had been issued by the Tribunaland a direction that the witness be cross-examined at the hearing. The Notes ofEvidence in relation to that witness were, however, largely incomplete because theevidence was inaudible when transcribed. In that context, Thomas J held that theDistrict Court Judge ought to have exercised his discretion under r 18.20 of the DistrictCourt 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 evidencegiven 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 andexchanges between the adjudicator and the parties in that regard). That explains theabsence 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 tosupport its submission that the issuing of the Notice to Miss Whakatihi (and herneighbour) was not in retaliation to Miss Whakatihi insisting on a right of quietenjoyment under the tenancy agreement, but as a "last resort" step to dealing with aserious dispute between neighbours. Those materials demonstrate an ongoing disputebetween the two neighbours and various allegations and counter-allegations betweenthem. As the District Court Judge (rightly) stated, "the documents disclose a clearconflict between the tenants of both properties".32 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 theTribunal, the District Court, nor this Court, to make any factual findings or reach anyconclusions on the allegations and counter-allegations between the neighbours, or toeffectively conclude who was "right" and who was "wrong". That is an importantpoint, 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 themotivation 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 betweenMiss Whakatihi and the respondent raising issues with her neighbours. It appears fromthose materials that the respondent was discussing the various allegations between theneighbours 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 closeproximity this often means one party will move on to a home that is morerespectful. If you are looking to find a new home we will be happy to providea written reference for you and [your son].We have contacted your neighbours with a similar letter and hope you can putyour differences behind you.[15] In the same email, the respondent stated they would not consider taking civilaction against the neighbours at that time, "as there is no proof of any untowardissues".[16] In a further email from the respondent to Miss Whakatihi, the respondentstated:Tracie Williams has talked to me about your concerns and the issues again oflast night with tenants in rear property.As Tracie mentioned to you yesterday about needing evidence so that we canhave proof. Could you get a friend to help you with your phone so you cancollect 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 theTenancy 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 visitedMiss Whakatihi's premises, a painter and heat pump service repairer. Miss Whakatihiclaims that the painter threw bolts and stones at her dog Max. A statement by thepainter was before the Tribunal who stated:During the month of February, 2018, whilst painting her roof she beganaccusing me of throwing stones at her dog. Being an avid dog owner myselfand knowing better, I ignored her and continued on with my work. She thenbegan 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 towrite 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 tenantthat 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 informedMiss Whakatihi that she would meet any contractors going forward at the property ifwork needed to be done in relation to it.[20] I note that neither of these contractors, nor Miss Whakatihi's neighbours (ortheir friends) who wrote letters of complaint in relation to her behaviour (which werebefore the Tribunal) were called by the respondent to give evidence and thus able tobe 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 adjudicatorstated that:4For a notice to be declared retaliatory, the tenant must prove that in terminatingthe tenancy, the landlord was motivated wholly or partly by the tenantexercising a right under the tenancy agreement or any act, or by any complaintagainst 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 inrelation to her neighbours' behaviour. The adjudicator noted Miss Whakatihi'ssubmission that she received the Notice because of her complaints against herneighbours.[23] The adjudicator then recorded the respondent's position, namely thatMiss Whakatihi and the neighbouring tenants had been making complaints about eachother and that a 90-day notice was issued to both to end the dispute. The adjudicatornoted the respondent's characterisation of the issue as a "he said, she said saga". Therespondent 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 pumprepair man and the three written statements from three tenants. The adjudicator alsoreferred to a transcript of a verbal exchange between Miss Whakatihi and herneighbours on 23 March 2019. Ms Van Den Broek confirmed at the hearing beforeme that transcript had been prepared by her.[24] The adjudicator found that the respondent did take reasonable steps to try tosort out the problems between the neighbours, as both were reminded to be respectfulgiven they were living in close proximity. The adjudicator also stated, "it was alsoreasonable of the landlord to request some form of evidence from each tenant to backup their respective claims". The adjudicator stated that "Miss Whakatihi was unableto provide any documentary evidence to corroborate her claims and there is a directconflict of views as to who was the aggressor or instigator". The adjudicator thensaid:5I find that in the recording provided, Ms Whakatihi was the only person usingaggressive and abusive language; but I am also mindful that it was only asnapshot and does not show the context of full interaction between the parties.[25] Ultimately, the adjudicator concluded that they were not persuaded therespondent'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 betweenneighbouring tenants. The dispute seems to be escalating and I agree that the5 At [13].6 At [14].only fair, sensible and reasonable resolution was for both parties to be giventheir notice to move on.The District Court decision[26] In his reserved judgment on the appeal to the District Court, Judge Mabeyrecorded that he had seen the documents that were available to the Tribunal at thehearing and that he had reviewed all of them. He recorded the parties' respectivepositions and also discussed the test pursuant to s 54 of the Act. Having consideredthe plain and ordinary meaning of the statutory section and dictionary definitions ofthe concept of "motivation", the Judge summarised the test as follows:7Thus for the Tribunal to rule that the 90-day notice given to Olive was invalidit must establish on balance that, at least in part, the reason for the notice wasOlive 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 theTribunal's record. This is consistent with the concept of a rehearing as described bythe Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.8 The Judge alsoreferred to the following extract from Housing New Zealand Corporation v Salt:9[14] There is something akin to a presumption that the decision appealedfrom is correct and it is also customary for this Court to exercise restraint ininterfering with discretionary decisions.[15] Thus, ordinarily, the appellate body will only differ from the factualfindings of the decision maker at first instance if:(a) The conclusion reached was not open on the evidence, that is, wherethere 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 materialsfrom the Tribunal:[35] I have considered all of the information available to the Tribunal. Atthe appeal hearing I heard directly from the parties that appeared before theTribunal and have had the benefit of their oral submissions together withwritten 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 thatthe Tribunal was correct in its ruling. There is not a hint of retaliation in theactions of the landlord and Olive has not persuaded me that the 90 day noticegiven to her was motivated wholly or in part by retaliation for her insistenceupon her right to quiet enjoyment.[37] Undoubtedly she has that right. Undoubtedly she is entitled to insistupon it. However, I am quite satisfied that the landlord, in the form of Ms VanDen Broek and Ms Williams, went to considerable length to quell the disputebetween the neighbours, acted in response to Olive's complaint and those ofthe neighbours and as a last resort gave notice to both tenants.[38] The independent evidence of the trademan (sic) who were subject toOlive's calumny was persuasive before the Tribunal and is persuasive beforeme.[39] For whatever reason Olive was unable to get on with the occupants of5B Spinel Place. I do not know if her allegations against them are true orfalse. I do not know if the tenants at 5B Spinel Place have made falseallegations against Olive. What I do know is that the landlord was placedin an impossible position after considerable efforts to deal with theproblem and exercised a legal right under s 51 of the Act to terminate thetenancy. That right was lawfully exercised and there is no basis at all forOlive's claim that the notice was retaliatory.[40] For that reason Olive's appeal is dismissed, the interim order stayingthe notice is revoked with the consequence that Olive must now vacate inaccordance with that notice.[Emphasis added][29] The Judge issued a stay of enforcement of his judgment pendingMiss Whakatihi's appeal to this Court.SubmissionsMiss Whakatihi's submissions[30] Miss Whakatihi raises four grounds of appeal in her notice of appeal asfollows:(a) Did the decision maker err in law by failing to apply the correctstatutory legal test to the relevant facts established to the correctstandard and by examining the fundamental question:On the balance of probabilities, was the landlord motivatedwholly or partly by the exercise or proposed exercise by thetenant of any right, power, authority, or remedy conferred onthe tenant by the tenancy agreement or by this or any otherAct or any complaint by the tenant against the landlordrelating to the tenancy?(b) Did the decision maker err in law by taking into account irrelevantfacts in arriving at the conclusion that the notice could not be held tobe of no effect.(c) Did the decision maker err in law by excluding relevant facts, or bygiving relevant facts insufficient weight, in arriving at the conclusionthat 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, oron 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 theDistrict Court Judge adopted (and set out at [26] above). I am satisfied the Judge hascorrectly identified the legal test to be applied under s 54 of the Act. Miss Whakatihiconfirmed that the essence of her appeal is that there was simply no or insufficientevidence upon which the District Court Judge could reach the conclusion he did. Shewas particularly concerned with the reliance placed by both the Tribunal and the Judgeon the written statements by the contractors who were not called to give viva voceevidence and therefore not cross-examined, together with the reliance on the transcriptof the interaction between Miss Whakatihi and her neighbours which had beenprovided 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 adjudicatorhad 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 theappellant or by questions from the adjudicator. The appellant was not giventhe opportunity to rebut this alleged evidence.[32] Miss Whakatihi further notes that she had two sets of neighbours prior to thedispute 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" thesenotices could be motivated at least partly by either the appellant or theneighbours at 5B, or both, exercising their rights under s 38 of the RTA 1986to quiet enjoyment.[33] Accordingly, Miss Whakatihi submits that over-reliance on the writtenstatement of the tradesmen (being in her submission, irrelevant and deficient evidence)and reliance on a "snapshot" only of her relationship with her neighbours did notprovide sufficient support for the Tenancy Tribunal's findings, nor the District CourtJudge's findings having reviewed that material. Miss Whakatihi also takes issue withthe transcript of the cell phone video recording having been prepared by Ms Van DenBroek, rather than an independent party.10 In her supplementary submissions,Miss Whakatihi also takes issue with the District Court Judge's reference to "theindependent evidence of the tradesman (sic) who were subject to Olive's calumny",11given, as noted, those tradesmen were not called to give evidence at the Tribunalhearing and subject to cross-examination.Respondent's submissions[34] The respondent points to this being an appeal on a question of law only andhighlights the discussion of the nature of such an appeal by Duffy J in Anderson v FMCustodians Ltd (set out in full below).12 The respondent says Miss Whakatihi's appealis 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 thatthe issue is whether a notice was given in retaliation or for "genuine and fairreasons".13 The respondent notes this was recently referred to with approval byVenning J in Douglas v Sutter Ltd.14 The respondent also refers to other District Courtdecisions in which it has been held that 90-day notices have not been issued forretaliatory reasons, including legitimately in response to an irretrievable breakdown inthe relationship between landlord and tenant, and in response to written complaints toboth the landlord and Police in relation to the appellant's behaviour.15[36] The respondent further submits there was ample evidence to support thefinding that the respondent was motivated by genuine and proper reasons in issuing10 I note, however, that Miss Whakatihi has not pointed to any specific concerns or alleged errorswith 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 KGHTrust [2016] NZDC 10582.the Notice; namely, an intractable dispute between neighbours. The respondent saysthat it is not the role of this Court to interfere with factual findings and the assessmentof the relevant materials by the earlier decision-makers, though does accept that aquestion of law will extend to whether there is no evidence or no sufficient evidenceto support the conclusions reached.Approach[37] As noted, this appeal proceeds by way of a question of law. As noted, I do notconsider the Judge erred in his formulation of the statutory test to be applied in s 54 ofthe Act.[38] It is correct, however, that a question of law can extend to the type of appealadvanced by Miss Whakatihi, namely that there is no or insufficient evidence tosupport the findings actually reached. In Anderson v FM Custodians Ltd, Duffy Jsummarised the approach as follows:16[31] It is clear from the wording of this section that this Court can only beconcerned with questions of law, so the approach identified in Austin, Nichols& Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 doesnot apply. The later reference in s 119(2) to the application of the High CourtRules, which would include the rule in Part 20 that appeals to this Court areto be by way of rehearing, cannot override the clear language of s 119(1). Theprocedural rules on appeals to this Court must be tailored to meet the clearlanguage of s 119(1).[32] For an appeal on a question of law, the approach is that which wasapplied in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721at [24]-[27], and later confirmed in Vodafone New Zealand Ltd v Telecom NewZealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [5]-[55]. In short, thisCourt is not to substitute its own views for that of the lower Court; instead theCourt must consider whether the decisions under appeal reveal amisinterpretation 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 anunlawful decision: see Vodafone New Zealand Ltd at [50]. The respondentshave argued that a substantial part of the appellants' argument relies onallegations of factual errors in the decisions below. The respondents arecorrect that, unlike with general appeals, the right of appeal in this case doesnot allow argument based on factual error. However, as was recognised inVodafone New Zealand Ltd and in Bryson, there are the rare occasions where"an ultimate conclusion of a fact finding body can sometimes be soinsupportable — so clearly untenable — as to amount to an error of law,because proper application of the law requires a different answer": seeVodafone New Zealand Ltd at [52]. The Supreme Court drew these principles16 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 inwhich an appellant on an appeal on a point of law could raise questionschallenging a decision-maker's findings of fact. These were (at [52] ofVodafone New Zealand Ltd):"a state of affairs 'in which there is no evidence to support thedetermination', or 'one in which the evidence is inconsistent with andcontradictory of the determination', or 'one in which the true and onlyreasonable conclusion contradicts the determination'."[33] However, the Supreme Court in Vodafone New Zealand Ltdrecognised that a court should be slow to reach the view that the decision underappeal is based on an untenable conclusion on the facts (at [53]):"Some caution is, however, required of the appeal court in assessingwhether the decision-maker has reached an untenable conclusion onthe facts. In Bryson this Court took notice of the observation by LordDonaldson MR in Piggott Brothers & Co Ltd v Jackson [[1992] ICR85 at 92] that:'It does not matter whether, with whatever degree of certainty,the appellate court considers it would have reached a differentconclusion. What matters is whether the decision underappeal was a permissible option.[34] Thus, while the bar is set high, it is possible to challenge factualfindings that come within the limited range of circumstances where this hasbeen permitted.[39] As already noted, Miss Whakatihi has raised a number of issues about thequality of the "evidence" before the Tribunal, and in particular, that none of thetradesmen or neighbours (or their friends) were called to give evidence. In thiscontext, I observe that s 97(4) of the Act provides that:Subject to section 89, the Tribunal may call for and receive as evidence anystatement, document, information, matter, or thing that in its opinion mayassist it to deal effectually with the matters before it, whether or not the samewould be admissible in a court of law.[40] Accordingly, there was no error in the Tribunal receiving into evidence thematerials about which Miss Whakatihi complains, or that material forming part of therecord on which Judge Mabey made his decision. What weight the Tribunal and JudgeMabey put on those materials is a matter for them.Discussion[41] Having reviewed the parties' submissions and the materials before the TenancyTribunal, the record of the hearing before the District Court, the decisions reached inthe Tribunal and the District Court, and the further materials put before me, I amsatisfied the appeal must be dismissed.[42] As the respondent notes, this is an appeal on a question of law. It is importanton such appeals that the appeal court does not substitute its own views on factualdeterminations made by the courts below, save in those rare circumstances discussedin Bryson and Anderson v FM Custodians.17[43] I am satisfied that those circumstances do not arise in the current case. I havefully reviewed the underlying Tenancy Tribunal file and Miss Whakatihi's varioussubmissions in relation to those materials. As I have flagged earlier, it is important torecognise that the relevant issue in this case is not who was right or wrong in thedispute between the two sets of tenants, but whether Miss Whakatihi satisfied theTribunal that the Notice was issued in breach of s 54. There is clear evidence thatthere was a serious and escalating dispute between Miss Whakatihi and herneighbours. That does not, in the event, appear to be in contention. There is alsoample evidence that the respondent tried on a number of occasions to resolve thatdispute to no avail. It is also clear that it took an even handed approach, and soughtevidence from each party, rather than relying on allegations only. That even-handedapproach extended to ultimately issuing both tenants with 90-day notices.[44] In this context, I concur with the District Court Judge that there is ampleevidence 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" ofany rights under the tenancy agreement, but rather as a last resort in the context of anongoing and intractable dispute between neighbours. I consider the approach takenby 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 quotedextract from the Judge's decision set out at [26] indicates, the Judge was fully alive tothe fact that it was not necessary to form any views on the rights or wrongs as to theoverall 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 theJudge to reach the conclusion he did on that issue.[46] Accordingly, I find the current circumstances to fall well below the thresholdenvisaged 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 ofenforcement of the District Court judgment.18[48] Miss Whakatihi requests that, if the appeal is dismissed, the Court confirm thatthe Notice does not act "retrospectively", but only operates going forward as from thetime the stay is listed, such that she has a further three months in which to vacate theproperty. I do not accept that submission. A 90-day notice was given, and theTribunal, the District Court and this Court have found that it was validly given. The90-day period has already expired. Miss Whakatihi has had the benefit of a stay whileher appeal rights are pursued. It would be quite wrong in principle to effectively "startthe clock again" on the Notice, as if it had only been issued as of the date of thisjudgment.[49] The respondent requests that this Court exercise its inherent jurisdiction andmake an order granting immediate possession of the property to the respondent "tobring this matter to a full and final conclusion and avoid further prejudice to therespondent". The respondent submits that the granting of the stays in both the DistrictCourt and High Court pending the outcome of the appeal has prevented the respondentfrom 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 anappropriate outcome in the circumstances. I do not consider it appropriate to make an18 Which had been ordered by Judge Mabey on 27 August 2019 given Miss Whakatihi's appeal tothis Court.order granting immediate possession of the property to the respondent (even if I hadthe jurisdiction to do so).[50] The respondent also seeks an order that Miss Whakatihi pay its disbursementsin having a solicitor assist in preparing the submissions on the present appeal. Thesolicitor's invoice, in the sum of $633.00 has been provided to the Court. On the faceof it, that invoice is fair and reasonable. I also accept the respondent's submission thatsums paid to a solicitor to help lay litigants in preparing documents and preparing andarguing the case in person can be recovered.19[51] But in this case, the respondent is a company. It ought to have been representedby a solicitor in all aspects of this appeal. As noted in earlier minutes on this file, therespondent was granted a significant indulgence in being permitted to be representedby Ms Van Den Broek at the hearing rather than a solicitor. The respondent hasaccordingly avoided incurring much more significant legal costs by not engaging alawyer in the ordinary way. Further, had the respondent been represented by counselin the ordinary way, and had been awarded scale costs as a result, that award wouldinevitably not have extended to the respondent's full, actual costs. In other words, itstill would have been "out of pocket" to a certain extent had it been represented bycounsel. Nor would there have been any basis to award indemnity costs againstMiss Whakatihi. Despite my finding that her appeal lacked merit, she conducted theappeal appropriately and filed balanced and helpful submissions.[52] In these circumstances, I do not consider it appropriate to award the respondentthe cost of their solicitor's assistance.Result[53] Miss Whakatihi's appeal is dismissed.[54] I make no orders as to costs.____________________S Fitzgerald J19 Working Capital Solutions Holding Ltd v Pezaro [2014] NZHC 2480 at [14]-[19].