Cooke v Cartel Trading Limited [2013] NZHC 2995 (13 November 2013)

Last Updated: 5 December 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4534 [2013] NZHC 2995

UNDER Residential Tenancies Act 1986

BETWEEN PETER DAVID JAMES COOKE Applicant

AND CARTEL TRADING LIMITED Respondent

Hearing: 12 November 2013

Appearances: P D J Cooke in person

No appearance for Respondent

Judgment: 13 November 2013

_{JUDGMENT OF KATZ J}

This judgment was delivered by me on 13 November 2013 at 11:00 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Copy to: P D J Cooke, Auckland

N K Fong-Anae, Cartel Trading Limited, Auckland

COOKE v CARTEL TRADING LIMITED [2013] NZHC 2995 [13 November 2013]

Introduction

[1] The appellant, Mr Peter Cooke, seeks leave to appeal out of time against a judgment of District Court Judge G A Andrée Wiltens dated 28 August 2013 (“Judgment”). In particular, Mr Cooke alleges that Judge Wiltens erred in dismissing his appeal from a Tenancy Tribunal (“Tribunal”) decision of 20 December 2012.

Background

[2] Mr Cooke brought proceedings in the Tribunal against his landlord, Cartel Trading Ltd (“Cartel”). He alleged that the tenant of a neighbouring flat (also owned by Cartel) was harassing him. The Tribunal summarised Mr Cooke’s allegations as follows:

Mr Cooke contends that Mr Tietz has for the past one year harassed him persistently when Mr Tietz allegedly cut off power to his television, scrapes against his wall “in quote from Texas Chainsaw Massacre”, thumping on ceilings in the dead of night, attempting to approach him from behind through the wall during a gay scene on TV, causing “floorboard harassment to his left buttock”, soiling the bottom of his blender with faeces, stealing bread from him on 3 September (which was the anniversary date of the WW2 Polish invasion), having a guest “boy” staying over at Unit 2 “tweaked with gas flame”, interfered with his use of the shower when “washing particular areas”, wall banging at 3:00am, verbal abuses, causing “sexual vibrations through the bed”, trying to seduce him and various other bizarre incidents. Mr Cooke also accuses Mr Tietz of moving into Unit 2 to deliberately harass him.

[3] The Tribunal heard from Mr Cooke, Ms Fong-Anae (a shareholder and/or director of Cartel) and Mr Tietz. It found it to be clear “that none of the matters complained [of] by Mr Cooke can be substantiated to any degree”. The Tribunal concluded that:

Some of the matters complained [of] fall outside the realm of reality and are physically impossible to be carried out by any living person.

The peculiarity of the matters complained [of] leaves little doubt that they are likely to be figment of imagination of an over-sensitive mind.

The charge against Mr Tietz for harassment has not been proved and accordingly there is absolutely no cause for the Tribunal to order the landlord to evict Mr Tietz.

Similarly, the consequential claim for exemplary damages against the landlord for harassment also fails.

[4] Mr Cooke appealed to the District Court. Judge Wiltens dismissed all seven of Mr Cooke’s grounds of appeal, finding that the Tribunal had not erred in any respect. Additional evidence presented in the District Court did not take the matter any further. In relation to Mr Cooke (who represented himself) the Judge observed that:

Having observed Mr Cooke’s demeanour and considered the issues of consistency/inconsistency with regard to both his veracity and credibility, I have no hesitation in confirming the Tribunal’s assessment regarding what weight to attribute to Mr Cooke’s evidence, namely very little, if any. As an example, it was quite preposterous to allege that Mr Tietz moved in next door to deliberately harass Mr Cooke – he didn’t know him or of him; and he only spoke with him once in the time they were neighbours. Such baseless allegations completely undermined Mr Cooke’s position.

Notice of Appeal

[5] A further appeal to this Court from a decision originating in the Tribunal may only be on a question of law.¹ Mr Cooke’s draft amended notice of appeal sets out the following three grounds:

Ground of appeal 1: ‘Discretionary’ overturning of retaliatory notice order lacking jurisdiction or requiring clarification of Parliament if jurisdiction might apply.

Ground of appeal 2: Incorrect signature or recusal.

Ground of appeal 3: Judge Wiltens’ decision, if good in other respects, as a point of law cannot alter another judge’s ruling at the District Court stage, the ruling of Judge Gittos on June 10, 2013 that further evidence be allowed would have to have been appealed by the other party to the High Court, Judge Wiltens’ ruling on that evidence is irrelevant, and, if he was not present, unreliable.

[6] Each of these grounds are elaborated upon further in Mr Cooke’s notice of appeal. I discuss them in further detail below.

¹ Residential Tenancies Act 1986, s 119.

Leave to appeal out of time

[7] Judge Wiltens released his decision on 28 August 2013. Mr Cooke had

20 working days (that is, by 25 September 2013) within which to file a notice of appeal. He did not do so. Rather, on 16 October 2013 he filed an interlocutory application seeking leave to extend the time for filing a notice of appeal, together with a proposed notice of appeal. Accordingly, the issue before me is whether Mr Cooke should be granted an extension of time to appeal.

[8] Rule 20.4(3) of the High Court Rules gives this Court the power to extend the time limit, subject to any time limitations provided in the enactment governing the right of appeal. There are no such limitations provided for under the Residential Tenancies Act 1986 (“Act”). The principles set out in r 20.4 therefore apply. A succinct summary of those principles was provided by Wylie J in Ike v New Zealand

Couriers Ltd:²

[19] An extension of time is an indulgence within the discretion of the

Court.

[20] Relevant authorities suggest that where application is made for an extension of time, the onus is on the applicant to explain the delay in not filing in time, and that a proper explanation should be provided by way of affidavit as to the relevant circumstance.³ In exercising the discretion whether or not to extend time, important factors the Court will consider include the following:

(a) the reasons for failing to bring the appeal in time;

(b) prejudice that may have been incurred by the other party; (c) subsequent events; and

(d) the merits of the intended appeal.

The governing consideration is the requirements of the justice of the case.⁴

I will consider each issue in turn, save for “subsequent events,” as no relevant

_{subsequent events were relied on.}

² _{Ike v New Zealand Couriers HC Auckland CIV-2011-404-648, 14 March 2011.}

³ Ilich v Commissioner of Inland Revenue (2009) 24 NZTC 23,556 (HC); Christchurch City

_{Council v McVicar HC Christchurch CIV-2004-485-925, 20 May 2004.}

⁴ Steadmances v Steadmances [1987] 2 NZLR 336 (CA).

Reasons for failing to bring the appeal in time

[9] Mr Cooke says he was unable to file a notice of appeal within time as he could not afford the filing fee and did not believe he would be granted a fee waiver. However, he made no efforts to apply for a fee waiver during the relevant period. His reasons for failing to bring an appeal within time are therefore far from compelling.

Prejudice incurred by Cartel/Ms Fong-Anae

[10] It was evident from observing Ms Fong-Anae at the first call of this matter that these proceedings have been very stressful and upsetting for her. However any prejudice to the respondent in allowing a late appeal would be relatively low, given that the period of delay is fairly short.

Merits of the first ground of appeal

[11] The first ground of appeal is poorly articulated and somewhat difficult to follow. Interpreting it liberally, and in the most favourable manner to Mr Cooke, it raises the issue of whether the Judge misdirected himself as to the appropriate approach to an appeal from the Tenancy Tribunal.

[12] The appeal to the District Court was brought under s 117 of the Act, which provides:

117 Appeal to District Court

(1) Subject to subsection (2) of this section, any party to any proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal in the proceedings may appeal to a District Court against that decision.

...

(3) A District Court shall have jurisdiction to hear and determine an appeal under this section notwithstanding any limits imposed on such courts in their ordinary civil jurisdiction by sections 29to34 of the District Courts Act 1947.

(4) The provisions of section 85 of this Act, with any necessary modifications, shall apply in respect of the hearing and determination by a District Court of an appeal brought under this section.

...

[13] Section 85 provides:

85 Manner in which jurisdiction is to be exercised

(1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.

(2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

[14] Judge Wiltens discussed s 117 at some length, concluding, in apparent reliance on Housing New Zealand Corporation v Salt⁵ that appeals from the Tribunal should be approached on a stricto sensu basis. A stricto sensu appeal is another name for a “pure” appeal which limits the appellate court to substituting a judgment which could have been given at the original hearing on the basis of the evidence presented. It is a more restrictive kind of appeal than an appeal by way of

rehearing, because of the inability to present new evidence or take into account subsequent events.

[15] However, in Housing New Zealand Corporation v Salt Judge Joyce QC had concluded that District Court Judges were required to determine appeals under s 117 of the Act by way of rehearing. I note that this conclusion is also consistent with r

14.17 of the District Court Rules, which provides that “appeals are by way of rehearing.” The correct approach to an appeal by way of rehearing was set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar:⁶

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

⁵ _{Housing New Zealand Corporation v Salt [2008] DCR 697.}

⁶ Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at [16].

[16] Further, there is some suggestion in the Judgment, although it is not entirely clear, that the Judge may have seen the Tribunal’s decision (or aspects of it) as being discretionary in nature, which also potentially impacts on the correct appellate approach. However, the Tenancy Tribunal’s decision was not a discretionary one. The Tribunal was applying s 45(1)(e) of the Act which provides:

45 Landlord's responsibilities

_{(1) The landlord shall—}

...

(e) Take all reasonable steps to ensure that none of the landlord's other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.

(1A) Failure by the landlord to comply with any of paragraphs (a) to (ca)

of subsection (1) is declared to be an unlawful act.

The Tribunal was required to make a factual determination, on the basis of the evidence before it, as to whether Cartel had breached its obligations under s 45(1)(e).

[17] Accordingly it would appear to be at least arguable on appeal, if an extension of time were granted, that the Judgment mis-states the correct approach to an appeal from the Tribunal.

[18] In practical terms, however, the issue appears to be largely one of semantics. A careful review of the Judgment indicates that Judge Wiltens did in fact proceed by way of rehearing. The re-hearing appears to have been comprehensive, including the hearing of further evidence, a review of the evidence before the Tribunal (including the affidavit evidence and the notes of evidence), and a review of the extensive correspondence on file.

[19] I am therefore satisfied that, whether or not the Judge accurately described the correct approach to an appeal from the Tribunal, he in fact proceeded correctly, by way of re-hearing.

Merits of second ground of appeal - Signature/recusal

[20] The second ground is, in essence, two grounds. Firstly, Mr Cooke alleges that the person whose name is on the Judgment, Judge Andrée Wiltens, is not the same person who actually heard his appeal. Rather, he says that a person who was introduced as Judge Andrée Wilson actually heard his appeal. However, Judge Andrée Wiltens (who is allegedly a different person to Judge Andrée Wilson) then wrote and delivered the judgment.

[21] The second ground of appeal also includes an allegation that Judge Wiltens is a director of Cartel and therefore, if he was indeed the Judge who heard the case, he should have recused himself due to his financial interest.

[22] There is absolutely no evidence to support either of these allegations. These grounds of appeal are entirely without merit.

Merits of third ground of appeal

[23] The third ground of appeal is also somewhat difficult to follow. The allegation appears to be that Judge Wiltens, in effect, overruled an earlier decision of Judge Gittos which permitted further evidence to be adduced at the hearing of the appeal. Mr Cooke relied in particular on the following paragraph of the Judgment:

[45] I could not find anything to support or enhance Mr Cooke’s allegation in the evidence led before me. In fact, if anything, it indicated certain aspects of paranoia and most definitely confused thinking. This demonstrated to me the personal vendetta Mr Cooke was pursuing, in spite of the overwhelming evidence to the contrary of what he was alleging.

[24] It is apparent from this passage that Judge Wiltens did not overrule Judge Gittos’ decision to allow further evidence. However, the further evidence that was adduced did not support or enhance Mr Cooke’s position. Ultimately it was detrimental to his case. Those were findings that the Judge was entitled to make, based on the evidence before him.

[25] This ground of appeal is misconceived and does not raise any arguable point of law.

Overall justice

[26] The final issue is to determine where the overall justice lies. Mr Cooke has now moved house so granting the primary relief sought, the eviction of his former neighbour, would no longer serve any practical purpose. Save for any potential issue of damages the proceedings are moot. Further, they lack merit and have no realistic prospects of success. Given the evidence before him, there appears to have been no basis on which the Judge could have reasonably reached a different conclusion to the Tribunal. The prospects of success on any further appeal to this Court are similarly remote.

[27] I have no hesitation in concluding that the overall justice weighs heavily against granting an extension of time for the filing of an appeal. The time has come for Mr Cooke to put this protracted litigation behind him and move on with his life. No purpose would be served by allowing an extension of time for filing an appeal.

Result

[28] The application for leave to extend time to appeal is dismissed.

_{[29] As neither party was legally represented, I make no award as to costs.}

Katz J