The High Court recently granted leave to appeal a residential tenancy case to the Court of Appeal. The case paves the way for the Court of Appeal to consider whether the Tenancy Tribunal has been correctly interpreting Parliament’s intention as to the compensation to be awarded to tenants of unlawful residential premises. Polly Pope and Nadia Murray-Ragg acted on a pro bono basis for the intervener, Community Law Centres Aotearoa (CLCA) in While v Moffitt [2026] NZHC 2780.
Background
Section 78A(4) of the Residential Tenancies Act 1986 allows the Tenancy Tribunal to order that the landlord repay the tenant “the whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful residential premises” or part of the rent “having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.”
In applying this section to date, the courts and Tenancy Tribunal have followed a Court of Appeal decision that considered the Act before s 78A was passed by Parliament. The appeal will allow the Court of Appeal to consider section 78A directly, and in particular whether Parliament intended that there is a presumption that there should be a refund of all rent paid, to be departed from only in special circumstances.
CLCA as Interveners
Justice Gardiner allowed CLCA to intervene, considering that its experience representing tenants in residential tenancy matters would assist the Court in assessing the wider significance of the legal issue for landlords and tenants. Her Honour found:
“Residential tenancy is a core subject area for CLCA, whose solicitors regularly provide advice and representation to tenants in the Tenancy Tribunal (Tribunal) and in the District Court. I considered that CLCA could provide helpful context to the question of law raised by the appellant and its significance to residential tenants and landlords. CLCA’s involvement did not expand the issues or materially elongate the hearing.”
Polly Pope and Nadia Murray-Ragg were instructed by Will Irving and Azita Nafissi of Russell McVeagh, to act for CLCA on a pro bono basis. Counsel and Russell McVeagh were instructed via Te Ara Ture, an online portal connecting lawyers with pro bono opportunities.
Judgment
In her Honour’s decision delivered Thursday 10 September 2026, Justice Gardiner concluded that there was a “genuine question of law as to the correct interpretation of s 78A, [t]hat includes how the Tribunal should approach whether ‘special circumstances’ exist in the context of s 78A(3) and (4), and whether the statements of the Court of Appeal in Want v Parbhu, which continue to be relied upon by the Tribunal and courts, remain relevant.”
Justice Gardiner also found that the appeal raised an issue of wider public importance, given its implications for residential landlords and tenants, particularly vulnerable tenants, and access to justice. The Court observed that the present lack of clarity in the correct interpretation of s 78A is “problematic and is resulting in inconsistency and significant divergence in awards in the Tribunal and the District Court.”
Comment