Cook v Housing New Zealand [2014] NZHC 1261 (6 June 2014)

Last Updated: 10 June 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-000453 [2014] NZHC 1261

BETWEEN	DESMOND COOK Applicant
AND	HOUSING NEW ZEALAND CORPORATION Respondent

Hearing:	4 June 2014 (By telephone)
Appearances:	D Cook (In Person) C P Paterson for Respondent
Judgment:	6 June 2014

_{JUDGMENT OF WHATA J}

This judgment was delivered by me on 6 June 2014 at 12 noon pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date ...............................}

COOK v HOUSING NEW ZEALAND CORPORATION [2014] NZHC 1261 [6 June 2014]

Introduction

[1] Mr Cook seeks leave to appeal to the Court of Appeal my judgment of 4 April

2014.¹ As set out in my judgment:

[1] Desmond Cook is a tenant in a housing complex owned by Housing New Zealand Corporation (“HNZ”). He complains that HNZ allowed another tenant to interfere with the quiet enjoyment of his tenancy. He took this complaint, together with other complaints, to the Tenancy Tribunal. The Tribunal found that HNZ had not breached its obligations to Mr Cook, though it did require HNZ to reimburse him for monies he had spent on mowing the lawns.

[2] Mr Cook appealed to the District Court on the basis, among other things, that the Adjudicator did not have regard to evidence which he says supported his position and got it wrong in terms of the amount payable for the lawn mowing.

[3] The District Court rejected Mr Cook’s appeal, concluding that the

Tribunal properly had regard to all available evidence.

[2] Mr Desmond sought leave to appeal to this Court from the District Court. I

set out his grounds of appeal as follows:

(a) The Adjudicator and the Judge failed to have regard to evidence, including police reports, supporting his claims of harassment by a HNZ tenant;

(b) The Adjudicator and the Judge failed to have regard to evidence of complaints from other tenants and corroborating evidence from a neighbour;

(c) The Judge failed to have regard to a quote supporting Mr Cook’s contention that the cost of the mowing was $30 per fortnight, not $20 per fortnight as found by the Adjudicator;

(d) The Adjudicator and Judge were prejudiced towards him as a Maori with facial tattoos and thereby failed to properly take into account evidence in support of his concerns, including the above evidence;

(e) Overall, the conclusions reached by the Judge were not available to the Judge on the evidence.

[3] I granted leave to appeal but I concluded that the Adjudicator and the Judge did not err in the ways claimed.

¹ Cook v Housing New Zealand Corporation [2014] NZHC 683.

Grounds for leave to appeal

[4] Mr Cook outlines the grounds upon which he makes the application for leave as follows:

1. A miscarriage of justice has taken place.

2. This court has no jurisdiction to review findings of fact unless it can be shown that the Judge made a finding for which there was no evidence of (sic) which was inconsistent with the evidence and contradictory to it.

3. The Tenancy Tribunal Adjudicator, Mrs D Cullen relied on evidence that was not correct from Housing New Zealand in relation to Green Acres.

4. Mr Kuki (sic) evidence was taken only in part and important further information was not accepted or used in Ms Cullens (sic) decision.

5. The Adjudicator, Ms Cullen, was asked to read police reports front page and back page by the applicant and failed to do so.

6. There was a quote from Uncle Tony’s lawn and garden service on the files and was presented to Housing New Zealand staff on the 22^nd of May 2013.

7. There was a letter from OPSM dated 7^th January 2014 in relation to my reading ability which was produced in the High Court to verify that I had a reading problem and why I could not point out to the District Court Judge what she wanted to hear.

[5] Mr Desmond elaborated on these grounds of appeal in a written submission. [6] HNZ opposed leave to appeal on the basis that no point of law is raised.

Process

[7] I convened a telephone conference to afford Mr Cook an opportunity to clarify the points of law that he wished to pursue. In essence he considers that there has been a miscarriage of justice. I discern that his central point is that the Adjudicator made a decision that was not available to her on the evidence and that that error was not corrected on appeal by the District Court Judge or by me.

Assessment

[8] The jurisdiction for appeal is set out at s 120 of the Residential Tenancies Act

1986. It provides in short that the High Court may grant leave if in its opinion the appeal involves a question of law that, because of its general or public importance, or for any reason, ought to be submitted to the Court of Appeal for a decision.

[9] While in recent times there has been some latitude in terms of what constitutes a point of law of general and public importance, in reality Mr Cook is seeking to appeal the merits decisions of the Adjudicator, the District Court and the High Court. He claims that the Adjudicator, the District Court Judge and I failed to consider relevant evidence in his favour. But that claim is not available to him on the record. The decisions of both the Tenancy Tribunal and the District Court reveal that relevant information was considered and that there was at least some evidence to support those decisions. He does not therefore present a proper basis for leave to appeal – there being no clear point of law.

[10] Turning then to the individual grounds:

(a) A miscarriage of justice might be a reason to allow leave to appeal, but it does not by itself raise a point of law. I have concluded in any event, for the reasons above and that will follow, no miscarriage has occurred.

(b) I do not understand why Mr Cook refers to the principle that this Court has no jurisdiction to review findings of fact. The principle is a reason not to allow leave to appeal in this case.

(c) The challenge to the reliance of the Adjudicator on evidence from Housing New Zealand is a merits matter subsequently addressed at least by me in my consideration of Mr Cook’s appeal. It does not raise a question of law.

(d) The assessment of Mr Kuki’s evidence is again a merits matter and

does not give rise to a question of law.

(e) The fact that the Adjudicator had regard to police reports is a matter of record. She was simply not persuaded by Mr Cook’s arguments and reliance on those reports. This presents no question of law.

(f) I found that the District Court had regard to Uncle Tony’s lawn and garden service quote. It did not provide a proper basis for reversing the Adjudicator’s decision and the Judge took it into account in any event. This does not give rise to a point of law.

(g) It may be that Mr Cook has reading difficulties but I do not consider that those difficulties had a material impact on the outcome. Again it does not give rise to a point of law.

[11] For completeness I accept Mr Cook’s submissions at face value, namely that the police records and Mr Kuki’s statement support his contention that he had a justified complaint against a former HNZ tenant, and that the lawn mowing quote supported his claim to compensation. But the evidence said to support Mr Cook’s case was for the most part before the Adjudicator and/or the District Court Judge. As

recorded in my judgment,² the Adjudicator had regard to the police reports and to the

evidence presented by Mr Kuki and formed a judgment to the effect that she did not accept Mr Cook’s central complaint. I also resolved that the lawn mowing quote was tabled in the District Court and considered by the Judge (though it appears that the quote is now missing from the Court file).

[12] To the extent that there may be a point of law (for example on the basis that the decisions were not available on the evidence) I do not consider that it is a question of sufficient public or general importance that it ought to be submitted to the Court of Appeal for a decision. Mr Cook has had his day in three Courts. While he remains concerned about the outcome, there is no general public interest or other

_{reason why the matter should go yet to another Court.}

² At [12] and [14].

[13] For the foregoing reasons, leave to appeal is declined. Again I do not invite submissions on costs.

Solicitors:

Meredith Connell, Auckland