WINTHER & ORS V HOUSING NEW ZEALAND CORPORATION HC WN CIV-2009-485-001954

WINTHER & ORS V HOUSING NEW ZEALAND CORPORATION HC WN CIV-2009-485-001954 4 November 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2009-485-001954UNDER Section 120 of The Residential Tenancies Act 1986 BETWEEN ROBYN WINTHER, HUIA TAMAKA AND BILLY TAYLOR Applicants AND HOUSING NEW ZEALAND CORPORATION Respondent Hearing: 4 November 2009 Counsel: E A Hall for Applicants, in support S N Haszard and C P Paterson for Respondent, to oppose Judgment: 4 November 2009ORAL JUDGMENT OF WILD JApplications[1] For decision are applications: a) Pursuant to s 120 Residential Tenancies Act 1986, for leave for a further appeal, this time to the Court of Appeal. b) Pursuant to r 12 Court of Appeal (Civil) Rules 2005, for a stay of execution pending that appeal. Effectively, what is sought is a stay of the possession orders made against the applicants by the Tenancy Tribunal until the further appeal can be heard.Background[2] The background to these applications is that the applicants were given 90 days notice to quit the houses they rented from the respondent Housing New Zealand Corporation (HNZC). [3] They refused to leave, asserting they were being unlawfully discriminated against. [4] I am informed by counsel that the applicants have, since the expiry of the notices to quit, continued to pay an income related rent. That is a rent somewhat below market level, but one dictated by their particular circumstances. [5] Successively, each of the Tenancy Tribunal, District Court and High Court has held the 90 day notices were valid. The gist of the three successive decisions is: a) As 90 days notice can be given as of right, without reasons, any reasons given are irrelevant. That is the case even if the reasons indicate unlawful conduct: that has no relevance to the validity of the notice. b) The remedies under the Residential Tenancies Act 1986 (RTA) for unlawful discrimination, if established, are monetary ones. [6] Any further background can be obtained from the three successive decisions.Leave to appeal[7] Section 120(2) RTA provides:(2) An application to the High Court for leave to appeal to the Court of Appeal under this section shall be brought, in accordance with the rules of Court, within 15 working days after the determination of the High Court, or within such further time as the High Court may allow; and the High Court may grant leave accordingly if, in its opinion, the appeal involves a question of law that, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision.[8] The leave principles developed under s 67 Judicature Act 1908 apply here, by analogy. Indeed, s 120(2) RTA mirrors the thrust of those principles. As stated inMcGechan on Procedure para J67.02, the test is:J67.02 The testThe appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. The test is a restricted one and the Court of Appeal has signalled that it may (in the light of British developments) need to reconsider the s 67 criteria, with a view to restricting second appeals even further: Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, at paras 33-37. Snee v Snee [2000] NZFLR 120; (1999) 3 PRNZ 609 (CA), at pp 125-126; pp 612-613; Waller v Hider [1998] 1 NZLR 412 (CA), at p 413. The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. Not every alleged error of law is of such importance either generally or to the parties as to justify further pursuit of litigation already twice considered and ruled upon by a Court, so the test is a restricted one. Further, the Court of Appeal has signalled that it may (in the light of British developments aimed at curbing the steady increase in the number of second appeals) need to consider whether a change in approach is also warranted in New Zealand:Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd[2008] 2 NZLR 591, at paras 29 to 37, Snee v Snee (1999) 3 PRNZ 609; [2000] NZFLR 120 (CA), at paras 612-613; pp 125-126 and Waller v Hider[1998] 1 NZLR 412 (CA), at p 413.[9] The high – and perhaps tightening – threshold for a second appeal is evident from those principles. Here, what is sought is leave for a third appeal – leave to air these questions for a fourth time. So the onus on the applicants must be an exacting one. [10] The questions the applicants seek to have the Court of Appeal answer are set out in their leave application. I gained counsel's acceptance that the following accurately encapsulates these questions (the reference in parentheses after each is to the question as it is stated in the leave application): (1) Has HNZC breached its New Zealand Bill of Rights Act 1990 (BORA) and landlord obligations in issuing the 90 days notices? (2.1.1)(2) Is HNZC, despite being subject to the BORA, still able to give a 90 days notice as of right? In other words, even if the reason for the notice is (or includes) unlawful discrimination against the tenant. (2.1.2.1) (3) Does the Tribunal and/or the District Court have jurisdiction to examine the reason(s) for the 90 days notice given by HNZC, in particular where it is alleged that reason is (or includes) unlawful discrimination? (2.1.2.2) (4) If the reason for a 90 days notice is or includes unlawful discrimination, does the Tribunal and/or the District Court have a discretion to refuse to make a possession order based on the notice? (2.1.2.4) (5) Under the RTA, are a tenant's only remedies for unlawful discrimination by a landlord monetary remedies: compensation and/or exemplary damages? [11] I deal now with each of those five proposed questions, applying the leave principles to each.First question[12] This is a factual question. It is not a question of law. When I asked Ms Hall whether she accepted that, she readily did. Accordingly, leave cannot be granted for Question 1. Relevant to Question 1 is the observation I made in [22] of my judgment of 9 October, which I invite the media carefully to note:[22] ... The (Tenancy) Tribunal specifically – and quite rightly – did not decide whether the reasons given by the Corporation for terminating Ms Taylor's tenancy were lawful. Nor did the Court. I also make no determination about that. That is an important point. The appellants' submissions constantly referred to 'unlawful discrimination by HNZ'. That is an assertion, not an established fact.[13] May I emphasise this point. Although this proceeding seems to run on – at least in the public eye – on the basis that the applicants have been unlawfully discriminated against by HNZC, that has never been established as a fact. It remains an assertion by them. [14] I am not emphasising this point as a criticism of the applicants. They have not yet had – or at least have not yet taken – the opportunity to have determined whether they have been unlawfully discriminated against. What I am doing is emphasising that today's decisions must be made against facts alleged, but not yet determined.Second question[15] For the applicants, Ms Hall submitted that this, in particular, is a bona fide question appropriate for argument before the Court of Appeal. She said that it involves not only the interrelationship of the relevant sections in the RTA – ss 12, 51, 64, 77 and 78 – but also the relationship of the RTA, particularly s 51, and the BORA. Ms Hall estimates that the appeal will take only a day of the Court of Appeal's time. Her preliminary inquiries suggest that hearing time may be available within the next six months. That would mean that some 14 months had elapsed since the expiry of the applicants' leases to the hearing in the Court of Appeal. [16] For the Corporation, Mr Haszard opposed leave being granted on this, or any, of the proposed five questions. He pointed out that the argument on this question has been thrice rejected. He contends that is because it lacks any reasonable possibility of succeeding because it involves reading into s 51 of the RTA, BORA type restrictions. The point is considered in para [22] of my judgment. [17] Secondly, Mr Haszard emphasises that HNZC is not at all suggesting that the applicants are without remedy if they have been unlawfully discriminated against by HNZC. Indeed, he suggests that they had/have four avenues of remedy: under the RTA; under the Human Rights Act; by bringing a general proceeding alleging breach of the BORA and claiming an appropriate remedy for it; or judicial review. Hispoint is that the applicants' argument that the RTA gives them the remedy they contend for is simply untenable. [18] This question, if posed or supported by HNZC, could be viewed as an arguable one of some public importance, justifying a third appeal, but Mr Haszard made it clear that HNZC is content with the three successive 'Yes' answers it has obtained. He said HNZC wants finality. As HNZC is potentially much more widely affected by the answer to this question than are the applicants, I do not consider leave should be given. [19] I have not overlooked the existence of s 120(2), in other words that Parliament itself contemplated an appeal to the Court of Appeal. It could be asked: if this question does not justify leave under s 120, what does? But a factor here is that each of the Tenancy Tribunal, the District Court and this Court has answered this question 'Yes'. They could all be wrong, but I regard the fact that they have given the same answer to the question as a factor militating strongly against the granting of leave. The situation would be different if, for example, the Courts had disagreed with the Tenancy Tribunal or there was disagreement between the District Court and this Court. [20] Accordingly, I decline leave on the second question.Third and fourth questions[21] I put it to Ms Hall that these questions are corollaries of Question 2, in the sense that the answer to Question 2 dictates the answer to them. Ms Hall did not accept that. She considered that, despite a 'No' answer to Question 2, there could be either a 'No' or a 'Yes' answer to Questions 3 and 4. [22] In my view, if Questions 3 and 4 are not corollaries of Question 2, then they are at least closely related to it. If, as I have held, Question 2 is not appropriate for leave, then neither are these two questions. I decline leave to take them on further appeal.Fifth question[23] Ms Hall outlined to me that her argument on Question 5 would be: a) The orders available under s 78 of the RTA could still be made; b) Remedies under the BORA are also available, quite independently of the RTA. For example, a declaration that the 90 days notices are invalid. Ms Hall accepted that the second argument would be a novel one. [24] I do not consider that this fifth question is appropriate for leave for a further appeal. Again, it has been squarely answered in the decisions given thus far. [25] To summarise, I decline leave for a further appeal on all five of the proposed questions.Stay[26] As I have declined leave, it is strictly unnecessary to consider the stay application. I do so briefly, in case my views become relevant. [27] The principles are set out in McGechan on Procedure CR12.01(1):CR12.01 Principles(1) General approach (a)An application under r 12(3) requires the Court to balance the competing rights of the party who obtained the judgment appealed from (ie the benefit of that judgment) against the need to preserve the appellant's position against the event of the appeal succeeding: Duncan v Osborne Buildings Ltd(1992) 6 PRNZ 85 (CA) at p 87. (b)"The object, where it can be fairly achieved, must surely be so to arrange matters that, when the appeal comes to be heard, the appeal Court may be able to do justice between the parties, whatever the outcome of the appeal may be", per Buckley LJ, at p 676, in Minnesota Mining and Manufacturing Co v Johnson & Johnson [1976] RPC 671 (CA), cited by the Court ofAppeal in New Zealand Insulators Ltd v ABB Ltd (2006) 18 PRNZ 565, at para 13. (c)A non-comprehensive list of the factors conventionally taken into account in balancing these competing interests was collected by Hammond J inDymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (CA) at para 9. This list, implicitly endorsed by the Court of Appeal in its judgment in Bilgola Enterprises Ltd v Dymocks Franchise Systems (NSW) Pty Ltd (1999) 13 PRNZ 48 (CA), reported immediately after Hammond J's, and expressly in New Zealand Insulators Ltd v ABB Ltd(above) at para 11 is: (i)Whether the appeal may be rendered nugatory by the lack of a stay. This factor is not determinative: Cousins v Heslop [2007] NZCA 377 at para 10. (ii)Whether the successful party will be injuriously affected by the stay. (iii)The bona fides of the applicant as to the prosecution of the appeal. (iv)The effect on third parties. (v)The novelty and importance of questions involved. (vi)The public interest in the proceeding. (vii)The overall balance of convenience and the status quo. (d)As Fogarty J pointed out in Todd Petroleum Mining Co Ltd v Shell (Petroleum Mining) Co Ltd 5/8/05, Fogarty J, HC Wellington CIV-2005- 485-819, the apparent strength of the appeal is not one of the factors listed in (c), although Heath J adds it as an additional factor in Body Corporate No. 188529 v North Shore CC (No 6) 11/2/09, Heath J, HC Auckland CIV-2004- 404-3230.[28] The factors here are: a) In the sense that, bar a stay, the applicants will be evicted and the appeal questions become substantially pointless, I accept the appeal will be rendered nugatory if there is no stay. I accept the applicants' monetary remedies, if they have been unlawfully discriminated against, will remain available, or at least that some of them will. But they are hardly a substitute for the continuation of their tenancies. b) HNZC will not be able to enforce the possession orders it has if a stay is granted. But, beyond that, it is not injuriously affected. All that Mr Haszard could do was point to the 14 months time lapse from expiryof the applicants' tenancies to the likely hearing date in the Court of Appeal. c) I accept the applicants' bona fides. They obviously do not want to lose these desirable tenancies, and through counsel they have argued the questions competently and comprehensively thus far. These applications could, and by some may, be viewed as delaying or spoiling tactics, but I prefer to view them as bona fide, in other words as brought in good faith. d) No third parties are directly affected. I have not been apprised of any further problems for neighbouring HNZC tenants in the Pomare area, and I have not been given any information about new tenants that HNZC has committed to these tenancies. e) The public are interested in the fact situation and the outcome of this matter, but they are probably much less interested in the answers to these questions. In other words I query, particularly given HNZC's attitude, whether the answers to the questions sought to be appealed further are of genuine public interest. f) If three successive adverse (to the applicants) answers is any indication, the proposed further appeal lacks merit. g) The overall balance of convenience and the status quo both favour a stay, and decisively so.Result[29] I decline the applicants leave for a further appeal to the Court of Appeal on any of the five questions, as I have framed them with counsel's agreement. [30] Consequently, I also decline the applicants a stay of execution of the possession orders made against them by the Tenancy Tribunal.[31] Section 120(3) permits the applicants now to apply to the Court of Appeal for special leave to appeal within 15 working days after today. To protect that right, which Ms Hall indicates the applicants will exercise, I further stay execution of the possession orders on these terms: a) The stay is effective immediately. b) The stay will terminate if a special leave application is not filed, and served on HNZC, by 5pm on Wednesday, 25 November 2009. c) If the stay terminates under b), the applicants are to hand possession of the houses they tenanted back to HNZC by 5pm on Friday, 4 December 2009. d) If a special leave application is filed and served under b), the stay is to continue pending further order of the Court of Appeal.Costs[32] The costs of these applications are reserved.Solicitors: Dana Maniapoto, Lower Hutt for Appellants Crown Solicitor, Auckland for Respondent