Smith v Accessible Properties New Zealand Limited [2018] NZHC 1795 (19 July 2018)

Last Updated: 31 July 2018

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-000010 [2018] NZHC 1795

IN THE MATTER	of an appeal pursuant to the Residential Tenancies Act 1986
BETWEEN	ESMERALDA MONICA SMITH Applicant
AND	ACCESSIBLE PROPERTIES NEW ZEALAND LIMITED Respondent

Hearing:	On the papers
Appearances:	M Sharp for the Applicant O Grant for the Respondent
Judgment:	19 July 2018

JUDGMENT OF WOOLFORD J

[On application for leave to appeal to the Court of Appeal]

This judgment was delivered by me on Thursday, 19 July 2018 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Te Whenua Law, Rotorua

Duncan Cotterill, Wellington

Counsel: M Sharp, Barrister, Mt Maunganui

SMITH v ACCESSIBLE PROPERTIES NEW ZEALAND LIMITED [2018] NZHC 1795 [19 July 2018]

[1] On 9 May 2018, I gave judgment in favour of Accessible Properties New Zealand Limited dismissing an appeal by Ms Esmeralda Smith against a decision of Judge PG Mabey QC in the Tauranga District Court dated 18 January 2018.¹ Ms Smith now applies out of time for leave to appeal to the Court of Appeal.

[2] Ms Smith says the delay in filing the application was caused in part by the need to consider the impact of the Gluckman report,² which was published on 29 May 2018, two days before the expiry of the period for filing an application. Without necessarily accepting that the delay in filing the application was necessary, I note it was filed within two weeks of the Gluckman report. The delay is short and the respondent is not prejudiced. I will therefore consider the application on its merits, and it is to that issue I now turn.

[3] The test for leave to appeal is whether the proposed appeal involves 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

[4] Ms Smith submits that the proposed appeal raises questions of law that, because of their general and public importance, ought to be submitted to the Court of Appeal for decision. The proposed questions identified by Ms Smith are:

(a) Is there jurisdiction under the Residential Tenancies Act 1986 (“the Act”) to set aside the exercise of a contractual power as being ‘harsh or oppressive’ under s 78(1)(f) and/or s 85(2) of the Act.

(b) Is there jurisdiction under the Act to set aside the respondent’s termination of the tenancy as being ‘harsh or oppressive’ given that the termination was an exercise of an express right of termination in the tenancy agreement?

¹ Smith v Accessible Properties New Zealand Ltd [2018] NZHC 1010.

2. Peter Gluckman “Methamphetamine contamination in residential tenancies: Exposures, risk levels and interpretation of standards” (29 May 2018, Office of the Prime Minister’s Chief Science Advisor).

³ Residential Tenancies Act 1986 s 120(2).

(c) Does the respondent have the right to carry out methamphetamine testing of tenanted premises as part of its right of inspection under a tenancy agreement given the respondent’s obligations as a landlord relating to health and safety?

(d) Should the exercise of the power to terminate by the respondent based on results of the methamphetamine tests be set aside under s 78(1)(f) or s 85(2) of the Act given that the results did not raise any legitimate health and safety concerns regarding the premises?

[5] Having carefully considered the competing contentions, I am of the view that the application for leave to appeal should be declined. I found that the Act had been carefully constructed to allow for a 90 day notice of termination without the need to give reasons except in carefully defined circumstances. These are, first, if the notice is a retaliatory notice under s 54 or, second, if it has been issued in breach of a tenant’s human rights under s 12. Sections 78(1)(f) and 85(2) do not confer power on the Tribunal to engage in a wide-ranging assessment of the merits of a 90 day notice by reference to notions of harshness or oppressiveness. A statutory right to give a 90 day notice also exists independent of what is contained in a tenancy agreement.

[6] Further, while I did make comment that I thought testing for methamphetamine was not unlawful, I made it clear that I was not obliged to make such a determination. As I understand it, the Gluckman report does not specifically address the lawfulness of methamphetamine testing. It concludes that landlords have been utilising too high a standard when considering the need to remediate properties which have been contaminated by methamphetamine.

[7] Finally, I do not make any finding of fact that the 90 day notice was solely, or even primarily, issued because of the methamphetamine contamination of the property. Ms Smith appears to want to rerun this factual issue on appeal as well as persuade the appellate court that she did not consent to the methamphetamine testing undertaken at her property.
[8] While the first three proposed grounds of appeal involve questions of law, they are not, in my view, of general or public importance. Nor does the Gluckman report provide a reason for them to be submitted to the Court of Appeal for decision.

[9] The application is accordingly declined.







Woolford J