Clayton Bray v Fletcher Concrete and Infrastructure Ltd [2018] NZDC 4128

Published 24 January 2019

Appeal from Tenancy Tribunal — delay of property owner taking possession — Residential Tenancies Act 1986, s 85(2). The applicant appeared before the Court bringing an appeal from the Tenancy Tribunal granting possession of the applicant's rental property to the legal owner, the respondent. The applicant did not dispute the legality of the landlord's notice to terminate the tenancy, but sought a delay in possession because of financial reasons, ill-health, and because he was unable to find alternative accommodation that met his needs. The applicant relied on the same issues as he raised in the Tribunal. The Judge found that while he was sympathetic to the practical problems the applicant faced, the respondent had a legal right to immediate possession because it was the owner of the property and had lawfully terminated the tenancy by a valid notice. The Judge went on to consider whether the Court had the legal power to suspend the operation of the immediate possession order to which the respondent is entitled. The Judge considered the Residential Tenancies Act, s 85(2) which provides the manner in which jurisdiction is to be exercised. However, the Judge conceded even if such a power existed, to exercise it in this case would not be in accord with the merits of this case. The respondent had given the applicant a number of extensions in his tenancy and should not be deprived of its legal right to possession any longer. Therefore, the Judge dismissed the appeal. Judgment Date: 9 March 2018.

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