Douglas v Sutter Limited

[2018] NZCA 367

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA153/2018
 [2018] NZCA 367

BETWEEN	PAUL DOUGLAS Applicant
AND	SUTTER LIMITED Respondent

Hearing:	On the papers
Court:	Kós P and Clifford J
Counsel:	Applicant in person Respondent in person (via J Canty)
Judgment:	13 September 2018 at 10 am

JUDGMENT OF THE COURT

A        The application for special leave to appeal is declined.

B        There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1. In a determination of 15 March 2017, the Tenancy Tribunal granted Sutter Ltd possession of a residential tenancy it had leased to Mr Douglas.  Mr Douglas unsuccessfully appealed to the District Court.[1]  He then unsuccessfully appealed on questions of law to the High Court.[2]  He now applies for special leave to appeal, pursuant to s 120(2) of the Residential Tenancies Act 1986 (the Act). 

   [1]Douglas v Canty [2017] NZDC 17519.

   [2]Douglas v Sutter Ltd [2018] NZHC 137.

2. The test for special leave is well established. The appeal must involve a question of law that, because of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[3]  Upon a second appeal this Court is not engaged in the general correction of error.  Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the Court below.[4]

   [3]Residential Tenancies Act 1986, s 120(2).

   [4]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

3. The background to the present dispute has been set out in detail by the High Court:[5]

   [5]Douglas v Sutter Ltd, above n 2. 

   [6]       The dispute relates to a residential tenancy at Flat 2, 82 Warwick Street, Wilton, Wellington.  The flat is one of a number in a block owned by the Landlord.  The tenancy had commenced in mid-2014, as a fixed‑term tenancy which was apparently renewed from time to time.  In evidence there is a tenancy agreement for a fixed term ending on 10 May 2016.  But eventually the tenancy became a periodic tenancy.  Mr Douglas was the tenant and Sutter Limited, trading as Sutter Holdings (which has been represented throughout by Mr Canty, a director of the company), was the Landlord.

   [7]       A number of issues arose between Mr Douglas and the Landlord during the course of Mr Douglas’ tenancy of the property.  At the conclusion of a Tenancy Tribunal hearing on 8 November 2016 the Adjudicator recorded that Mr Douglas had agreed to withdraw various applications he had made to the Tribunal and that the Landlord had agreed to arrange treatment of the exterior mould on the building.  The Adjudicator also recorded that the parties had agreed that the Tenancy was to continue and the parties were to “make a fresh start”.  At the same time the Landlord withdrew trespass notices relating to the remainder of the Landlord’s property associated with the other flats in the block.

   [8]       However, unfortunately further issues arose between the parties very shortly thereafter.  On 29 November 2016 the Landlord served a 90 day notice under s 51(1)(d) of the Act on Mr Douglas.  Mr Douglas challenged that notice and applied to the Tribunal for a declaration that it was a retaliatory notice under s 54 of the Act.

   [9]       The matter came before the Tribunal on 15 March 2017.  The transcript of that particular hearing runs for some 93 pages.  By the conclusion of the hearing the position was reached that Mr Douglas agreed to immediately move out of the property.  The Adjudicator recorded:

   (a) Sutter Limited, trading as Sutter Holdings, was granted possession of the premises immediately under s 64(1) of the Act;

   (b) the application by Mr Douglas for a declaration that the 90 day notice should be set aside on the basis it was retaliatory was dismissed; and

   (c)       all other applications were dismissed.

4. On appeal, the District Court found that the Tenancy Tribunal was correct to proceed on the basis that, given the fixed term tenancy had become a periodic tenancy, Sutter Ltd could give a 90 day notice.  There was ample evidence for the Tenancy Tribunal’s conclusion that the 90 day notice was appropriately served and not retaliatory.  Furthermore, at the end of the hearing, Mr Douglas had voluntarily agreed the tenancy should terminate immediately.  That concession was accepted by Sutter Ltd and could not be disturbed on appeal. 

5. On second appeal, the High Court concluded that Mr Douglas had not identified any arguable question of law.  Mr Douglas had sought to argue that the 90 day notice given by the landlord under s 51(1)(d) of the Act was invalid, by virtue of s 7 of the Act.  However, s 7 applies to fixed-term tenancies, rather than periodic tenancies.  It therefore had no application — both parties had agreed at the hearing of the second appeal that the tenancy was a periodic tenancy.  The second question of law raised was whether the notice to quit was a retaliatory notice.  None of the reasons Mr Douglas had identified as possible reasons for the notice being issued were capable of constituting a retaliatory notice.  Finally, and in response to Mr Douglas’ argument that the notice to terminate under s 51 was defective, the High Court noted that the submission was contrary to Mr Douglas’ earlier concessions — namely, that the tenancy had become a periodic tenancy and that he had received the notice.  It was too late for Mr Douglas to withdraw those concessions.

6. In support of the application for leave to bring a special appeal, Mr Douglas relies on a number of grounds.    The main one is that the Tenancy Tribunal reached a clearly wrong outcome on the evidence.  As can be seen above, that ground of appeal has been thoroughly considered by the courts below.  It is not of general or public importance, nor is it capable of bona fide and serious argument.  The evidence before the Tenancy Tribunal clearly supported the outcome it reached.  Mr Douglas also says the High Court erred in finding that Mr Douglas had made concessions at an earlier Tenancy Tribunal hearing.  Again, this is a question of fact not law.  In any event, we have reviewed that part of the transcript of the Tenancy Tribunal recorded by the District Court in its decision, and are satisfied that there is nothing in that ground of appeal.  Mr Douglas clearly made the concessions that the High Court recorded. 

7. Mr Douglas also criticises the court process to date.  He says:

   (a)the High Court ought to have provided a transcript of the High Court hearing; and

   (b)sections 85 and 117(4) of the Act (which govern how hearings in the Tribunal and, on appeal, the District Court are to occur) were unfairly used against Mr Douglas.

8. Again, these grounds clearly do not satisfy the test for a grant of special leave to appeal. 

9. Finally, Mr Douglas has made a variety of allegations against the director of the respondent (Mr Canty), the police, and judges who have been involved in the case to date.  These do not merit any response, save to say that they clearly do not satisfy the test for a grant of special leave to appeal. 

Result

1. The application for special leave to appeal is declined. 

2. There is no order for costs.