NOBLE v SIMONS [2020] NZCA 259

NOBLE v SIMONS [2020] NZCA 259 [26 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA39/2020[2020] NZCA 259BETWEEN ROBERT CHARLES NOBLEApplicantAND GRAEME LESLIE SIMONSRespondentCourt: Miller and Clifford JJCounsel: Applicant in personRespondent in personJudgment:(On the papers)26 June 2020 at 10 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] This is an application by Mr Noble, pursuant to s 120 of the ResidentialTenancies Act 1986 (the Act), for special leave to bring a second appeal on a questionof law against a decision of the High Court upholding determinations of theTenancy Tribunal and the District Court.11 Noble v Simons [2018] NZDC 26672 [District Court appeal]; Noble v Simons [2019] NZHC 2438[High Court appeal]; and Noble v Simons [2019] NZHC 3242 [High Court leave decision].[2] Section 120(3) of the Act provides that this Court may grant leave if, in itsopinion, the appeal involves a question of law that, because of its general or publicimportance or for any other reason, ought to be submitted to the Court of Appeal fordecision. Upon a second appeal this Court is not engaged in the general correction oferror. Its primary function is to clarify the law and to determine whether it has beenproperly construed and applied by the Court below.2BackgroundThe claims to the Tribunal[3] Between November 2016 and May 2017 Mr Simons was a tenant in a propertyowned by Mr Noble. During the period of that tenancy, Mr Noble was endeavouringto sell the property. Mr Simons knew that was Mr Noble's intention when he enteredinto the tenancy agreement. Mr Simons formed the view, however, that Mr Noble'sattendances at the property went beyond what was reasonable or agreed. Havinghimself found a house to buy, he gave notice terminating his tenancy.[4] Subsequently Mr Simons brought a damages claim in the Tenancy Tribunalagainst Mr Noble, based on Mr Noble's alleged breach of his right of quiet enjoyment.Mr Noble then claimed unpaid rent from Mr Simons.[5] The Tribunal upheld Mr Simons' claim for damages, but dismissed Mr Noble'sclaim for rent arrears.[6] In upholding Mr Simons' claim, and making a global award of exemplarydamages totalling $2,250, the adjudicator said:3In the almost seven years I have been a Tenancy Tribunal adjudicator, this isone of the worst, if the not the worst case, of sustained harassment that I haveseen. I order the Landlord to pay the Tenant $2,250.00 in this regard. Hadthe Tenant not limited his claim to $2,250.00 I would have awarded nearly themaximum or the maximum amount of exemplary damages allowed, whichhere would have been $3,000.00.2 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.3 Pursuant to the Residential Tenancies Act 1986, ss 38(3), 48(4), 109 and sch 1A.Appeal to the District Court4[7] On appeal to the District Court Judge Neave was satisfied, on the facts, theaward of damages against Mr Noble was appropriate. In doing so, and to bring the"global" award within the separate caps found in sch 1A for such awards under ss 38and 48 of the Act, the Judge made separate awards under both sections within thestatutory caps, but, together, equalling the global award made by the Tribunal.5[8] The decision on the rental arrears claim needs a little explanation. Mr Noblehad based that claim for unpaid rent on Mr Simons' having given an initial notice oftermination, nominating Sunday 30 May as the date the tenancy would end.That notice was in error: 30 May was not a Sunday and, in any event, Mr Simons hadoriginally intended to terminate his tenancy on 30 April. Mr Simons gave asubsequent notice, terminating his tenancy as at 14 May, and made his final rentpayment on that basis. Mr Noble said Mr Simons was bound by his first notice.The Judge accepted Mr Noble should have, but had not, applied under s 51(7) ofthe Act for consent — first from Mr Noble and then, if Mr Noble refused, fromthe Tribunal — to vary his notice. The Judge was satisfied, however, Mr Noble couldhave applied at the hearing for after the fact approval. Moreover, if he had done so,the Judge was satisfied that application would have been granted.6 The Judge upheldthe Tribunal's decision accordingly.First appeal on a question of law[9] Mr Noble's right of appeal to the High Court was limited to questions of law.Having noted Mr Noble had difficulty framing his appeals as questions of law,Dunningham J identified those questions as whether the District Court had beencorrect to dismiss Mr Noble's challenge to the award of damages against him and todismiss his claim for rent arrears.7 Dunningham J determined the answer to both ofthose questions was, in substance, yes.84 Appeals to the District Court from decisions of the Tenancy Tribunal generally proceed by way ofrehearing.5 District Court appeal, above n 1, at [22].6 At [37]–[38].7 High Court appeal, above n 1, at [27].8 At [56]–[57].[10] As regards Mr Simons' damages claim, she did so, as had the District Court,on the basis that the factual evidence on which that claim was based was clearlysufficient.9[11] On the question of rent arrears the Judge found, contrary to Judge Neave, thatthe second notice of termination had been validly given and served. Thus, whilstthe Judge had been in error in the way he upheld the Tribunal's decision, neverthelessthe outcome was not affected.10Application to High Court for leave[12] Mr Noble sought leave of the High Court to bring a second appeal on twoproposed questions:11Before awarding punitive damages, is the Tribunal required to find as a factthe party acted intentionally and flagrantly disregarded the other party'srights?Is a party that is given notice to terminate a tenancy that complies with therequirements of s 51(3) entitled to issue an amended notice to terminate atenancy notwithstanding s 51(6) or s 51(9) and the prejudice to any party?[13] On the award of damages to Mr Simons, the Judge referred to the terms ofs 109.12 For there to be an award of such damages there must be a finding ofan intentional unlawful act by the person against whom the order is sought.If the Tribunal is then satisfied that:13 having regard to—(a) the intent of that person in committing the unlawful act; and(b) the effect of the unlawful act; and(c) the interests of the landlord or the tenant against whom theunlawful act was committed; and(d) the public interest,—9 At [30]–[37].10 At [51]–[52].11 High Court leave decision, above n 1, at [6] (reordered and footnote omitted).12 At [13].13 Residential Tenancies Act, s 109(3).it would be just to require the person against whom the order is soughtto pay a sum in the nature of exemplary damages, the Tribunal maymake an order accordingly.[14] Given the clear statutory criteria there was no legal basis for a question of lawbased on the proposition that flagrant disregard for rights was required.14Moreover, Mr Noble was in fact seeking to relitigate the Tribunal's findings of fact,upheld by the District Court and then by the High Court.[15] As to the claim for arrears of rent, the original notice of termination Mr Simonshad given was not a valid notice, there being clear errors on its face as had been foundby the Tribunal and the High Court. Mr Noble's argument based on the propositionthat the initial notice complied with s 51(3) therefore raised no seriously arguablequestion of law.15[16] The Judge declined leave accordingly.This application[17] In applying to this Court, Mr Noble adds a third proposed question of law tothe two on which he was declined leave by the High Court. That third question is:When determining a case between lay litigants is the Court entitled toessentially determine the matter on the basis of evidence and argument notpreviously raised or addressed by any party and which was not submitted tothe lower Tribunal / Court, and further the Court not giving an opportunity forthe party to respond?[18] That question resembled one of the questions of law on which Mr Noble basedhis appeal in the High Court. It is not clear to us that, in seeking leave from this Courtafter leave is declined by the High Court, the applicant may vary the proposedquestions. Were that to be possible, the purpose of the initial application tothe High Court would be rendered nugatory and the application to this Court would bea different one. We do not think, however, that it is necessary to resolve that issuehere. As the Judge found in the High Court, that question was in reality anotherexpression of Mr Noble's challenges to the factual findings of the Tribunal and14 High Court leave decision, above n 1, at [16].15 At [11].the District Court.16 Those factual findings were upheld in the High Court.We proceed on that basis.[19] We are satisfied, for very similar reasons to those given by the Judge inthe High Court, that these are not questions on which special leave should be givenfor a second appeal on a question of law. This dispute involves two essentially factualquestions. Was Mr Noble's conduct towards Mr Simons such as to warrant an awardof damages and was Mr Simons' notice of termination of his tenancy as at 14 Mayeffective? Any possible legal argument has now been ventilated in the High Court,and the decision of the Tribunal and the District Court upheld. As Dunningham Jfound, the further questions of law for which Mr Noble seeks a second appeal werenot raised by the way the case had been argued and responded to. Moreover, giventhe original circumstances of the dispute, and the relatively small amount of moneyinvolved, there can be no public interest in, or any other reason for, a further appeal tothis Court.Result[20] The application for leave to appeal is declined.[21] As both parties represented themselves, there is no order as to costs.16 High Court appeal, above n 1, at [29].