High Court rules Kāinga Ora tenant needs to accept eviction after battle to stay in Ōtāhuhu property

The single woman wanted to remain in the three-bedroom property despite the pressure on social housing availability in Auckland.

A woman was locked in a legal battle for more than a year to remain in the three-bedroom state house she lived in alone, costing Kāinga Ora about $32,000 to have her evicted so a family could move in.

Her fight to stay in the Ōtāhuhu property traversed the Tenancy Tribunal, the District Court and the High Court, as a housing crisis that saw families crammed into emergency accommodation and raising their children in motels continued.

For that reason, the social housing provider had terminated the woman’s tenancy in December 2023, citing the considerable pressure on social housing availability in Auckland.

But the woman, who had refused Kāinga Ora access to the property in the months leading up to the termination, claimed it was retaliatory action and she was now homeless.

She argued she had mental health issues, which she believed justified her remaining in the property rather than moving to an alternative one-bedroom Kāinga Ora property in Papatoetoe.

The woman, who cannot be named, also regarded the Ōtāhuhu property as her home and said it was where her last memories of her mother were.

According to a High Court decision released last month, she lived at the property for six years, initially with her mother and nephew.

However, after her mother died and her nephew moved overseas, she remained at the property alone.

Kāinga Ora turned to the Tenancy Tribunal for a possession order of the property.

The background to her eviction was set out in the decision, detailing how Kāinga Ora had turned to the Tenancy Tribunal in October 2023 for an order to access the property to assess its suitability for ongoing tenancy purposes.

The woman had refused the agency and its contractors access since June of that year.

The tribunal made the order, but the woman then applied for a rehearing, claiming a miscarriage of justice had occurred. The application was dismissed.

90 days’ notice - no longer suitable

In December 2023, Kāinga Ora gave the woman 90 days’ notice of termination of her tenancy, explaining that the property was no longer suitable for her and that the unit was available.

The notice period expired in April 2024, but the woman never left the property.

Kāinga Ora then returned to the tribunal to apply for a possession order, which was granted the following month.

However, the woman went on to appeal twice to the District Court against the tribunal’s decisions.

After a judge dismissed those in November 2024, she finally turned to the High Court seeking to appeal the District Court decision.

She also sought a stay of execution of the possession order, which was granted until January 15 this year.

In her notice of appeal, the woman complained about access to the Ōtāhuhu property by Kāinga Ora staff and alleged the termination of her tenancy was a retaliatory action because she had applied for the rehearing in the tribunal.

On the day the stay expired, Justice David Johnstone declined to extend it.

He noted her appeal failed to identify a point of law and gave the woman until February 7 to file a memorandum identifying any point of law she wished to argue.

In the meantime, she was ousted from the property on January 20.

When she later filed the memorandum, she again failed to identify any question of law.

Instead, she made several allegations against Kāinga Ora, including that “staff used a locksmith to violently open” the doors to the property, which she argued was a criminal offence, and complained about her current circumstances.

She listed remedies including a possession order to allow her to return to the property, reimbursement for stays in a motel after her eviction and disconnection of her broadband plan.

Kāinga Ora asked the High Court to strike out the appeal and stated it had already been “put to expense” defending four Tenancy Tribunal applications and two District Court appeals at which the woman did not appear.

In the subsequent decision, Justice Michele Wilkinson-Smith said it was clear that having to leave the address where her mother previously lived had caused the woman significant distress.

She acknowledged the woman claimed to be homeless but pointed out Kāinga Ora had offered her alternative accommodation.

In striking out the proceedings, the judge found the appeal could not be properly characterised as an appeal on a question of law.

“It is simply an attempt to re-argue the same matters rejected in the District Court. This court has no jurisdiction to hear a further appeal on that basis.

“[The woman] will need to accept that she has exhausted her rights to challenge Kāinga Ora’s decision to terminate her tenancy.”

Angela Pearce, Regional Director — Counties Manukau at Kāinga Ora — Homes and Communities, told NZME the appeals processes in the woman’s case cost Kāinga Ora about $32,000 in external legal costs.

“We support a tenant’s right to appeal, but are pleased this situation has now been resolved by the courts,” she said.

Pearce said the agency acknowledged the prospect of leaving the property was distressing for the tenant.

But as a social housing landlord, it has a responsibility to ensure the right tenants live in the right type of homes for their needs, she said.

“We could not justify the tenant remaining in the three-bedroom home when she was living alone, while there is such great need for this type of home.”

Kāinga Ora was unable to say whether the woman was still a social housing tenant but said it worked hard to support her with alternative housing, including working with other agencies where needed.

Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff covering crime and justice, arts and entertainment, and Māori issues.