What was the outcome of Tenancy Tribunal case 4339494?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4339494?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4339494?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4339494?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9399442-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4339494?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4339494?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4339494?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4339494?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9399442-Tribunal_Order.pdf.

40 Pipitea Street, Thorndon, Wellington 6011, Pipitea Mews Tenancy Tribunal Case 4339494 — Cleanliness

Order

No suppression orders apply around publication of this decision.
The application is dismissed for want of jurisdiction.

Reasons

The Tribunal has before it an application filed by Chandler Investments Limited (the Applicant), against the Embassy of the People’s Republic of China in New Zealand (the Respondent). The landlord seeks orders in relation to cleaning, rubbish removal and cutting keys. However the preliminary matter for the Tribunal to determine, is whether the Tribunal has jurisdiction to consider this application, which is an application filed by a company against a State.

BACKGROUND

The Applicant has filed only limited evidence with its claim. However I summarise what has been filed, as follows.
The landlord has provided a document entitled “tenants application form”, which is appears to be an application form a tenant would complete if applying for a tenancy. The Applicant has referred to this document as being a tenancy agreement, but it does not appear to be a tenancy agreement as would be commonly seen in New Zealand.
The application form is from ‘J H Bethune & Co Limited’ a real estate agency. This document makes no reference at all to the Applicant, Chandler Investments Limited. In any event the applicant for the tenancy is recorded as “Embassy of the Peoples Republic of China”.
Other than some receipts from March and April 2016, there are no other contemporaneous documents provided to the Tribunal.
On 10 May 2022 the Applicant filed this application with the Tenancy Tribunal, seeking an order for compensation in relation to cleaning, rubbish removal and key cutting at the end of the tenancy.
On 31 May 2023 I convened a pre-hearing telephone case conference. In attendance was Ms Chandler for the Applicant. I was able to raise a person from the Chinese Embassy, but she knew nothing about this application. In my subsequent minute I noted that the initial matter for the Tribunal to determine is whether I had jurisdiction to consider the claim, and in particular whether an immunity applied. I directed that a hearing be convened to determine that matter as a preliminary matter. I directed that a hearing be convened in Wellington, and further confirmed that the New Zealand Ministry of Foreign Affairs and Trade would have a right of appearance given the nature of the claim against a State. MINISTRY OF FOREIGN AFFAIRS AND TRADE’S SUBMISSIONS
In the circumstances where the claim is against a State, the Tribunal granted a right of appearance to the Ministry of Foreign Affairs and Trade (MFAT).
Written submissions were provided from Crown Law in advance of the hearing. Mr Gallagher and Ms Carrad appeared at the hearing. Given that neither the applicant nor respondent were present, MFAT / Crown Law’s written submissions were taken as read.
The crux of those submissions is to the extent that a Sovereign Immunity would arise by way of common law, meaning the claim could not be adjudicated in the civil context by the Tribunal. Counsel set out the New Zealand authorities for that position. However counsel noted that a commercial exception to any sovereign immunity may apply in certain circumstances, with counsel submitting that: ... where a commercial arrangement is closely associated with the diplomatic functions of the State, immunity would apply, and the courts of the receiving State would not have jurisdiction to hear the dispute without a waiver of immunity from the sending State. Further, while considered in a situation where the relevant immunity was diplomatic rather than Sovereign Immunity, the Tenancy Tribunal in New Zealand considered that a diplomat entering a lease was not a commercial arrangement but rather connected to their role and therefore they were immune from the jurisdiction of the tribunal.
I will address that mentioned decision of the Tenancy Tribunal further below.
Otherwise counsel submitted that it was not aware that in this case the Respondent has waived any immunity that would otherwise apply.
I am grateful to counsel and MFAT for their assistance to the Tribunal in this case. APPLICANT’S CASE
There was no appearance by the Applicant at the hearing on 9 August 2023. The Applicant had requested to attend the hearing by telephone, but that request was declined. Given the nature of the issue to be adjudicated, it would not be suitable to be conducted other than in person.
The Applicant has not filed submissions. The best I can determine is that the Applicants position is that there is a tenancy agreement between it and the Respondent, and the claim should be determined by the Tribunal. RESPONDENT’S CASE
There was no appearance by the Respondent. I do not know the position it takes on this claim, but record for completeness I have received no communication suggesting the Embassy or Peoples Republic of China have waived any immunity applying.

ANALYSIS

It is usually the case that before a court or tribunal considers any claim before it, the decision makers will firstly satisfy themselves that they have jurisdiction to hear the claim. In the context of the current claim, if a sovereign immunity applies, then the Tribunal would not have jurisdiction to adjudicate the claim, and that would be the end of the matter.
Here the claim is filed against the Embassy of the People’s Republic of China in New Zealand. It must follow that the claim is in fact a claim against a State, the People’s Republic of China.
The question is whether a sovereign immunity would apply, so as to limit the Tribunals jurisdiction to consider this claim.
Sovereign immunity is a doctrine applying to sovereign states. In general common law in New Zealand (that is the law as confirmed by the courts), reflects international law, that a State will not be the subject of proceedings in the courts and tribunals of another country (in this instance New Zealand) against its will and without its consent. While that is the general position in law, it is not an absolute rule, there is an exception when the subject relates to commercial activities, which I will discuss further below.
A leading case around sovereign immunity, is the New Zealand Court of Appeal decision of Governor of Pitcairn and Associated Islands v Sutton [1995] 1NZLR 426. In that case Ms Sutton brought a claim in an employment dispute against the Governor of the Pitcairn, Henderson, Ducie and Oeno Islands. The claim was brough under the Employment Contracts Act. The Court of Appeal noted that that the Employment Contracts Act did not provide for jurisdiction to extend extra territorial states, and to that extent a claim against a State, would be outside of the scope of that legislation. Richardson J noted that: While the Employment Contracts Act is broadly phrased, it is not expressed to apply extra-territorially or to override sovereign immunity. The absence in its general language of any specific restriction on its application to a foreign sovereign cannot be elevated into an expression of intent to override that important presumption grounded in public policy and the common law.
So is the case with the Residential Tenancies Act, which also has no provision providing jurisdiction to the Tribunal to consider a claim against a State.
The Court of Appeal noted that by entering into an employment arrangement, even though it was employment within New Zealand, that Ms Sutton was consenting to an arrangement where the Employment Contracts Act could not be enforced. In that decision, Cook P held: The Auckland office was established by the Governor of Pitcairn not as a diplomatic mission or consulate, except perhaps in a very minor way. It was essentially a place from which, for practical reasons of geography, Her Majesty's administration of Pitcairn could best be conducted. .... Mrs Sutton's duties did not entail any significant responsibility for decision-making, but they were close to the heart of the administrative process. She was an important cog in the administrative wheel. It cannot be right for a New Zealand Court to inquire into and adjudicate on how well or how badly the British overseas administrative machine dealt with her. In truth she chose to become part of it and so outside the scope of the generally-worded provisions of the New Zealand Employment Contracts Act.
A Similar conclusion was reached by Richardson J: I am satisfied on the material now before this Court that Mrs Sutton's employment in the Pitcairn office necessarily involved her in the public acts of the British Crown; and to allow consideration of a claim of unjustifiable dismissal in the Courts of New Zealand would intrude on the exercise of the sovereign functions exercised through the Governor of Pitcairn. There is no trace of a commercial function in the description of the office or of her employment. As sole typist/clerk she performed all secretarial and clerical services necessary to operate the office of Governor. Mr Judd agreed but submitted that where the state enters the market place it is subject to the rules of the market place, in this case the market for locally recruited staff. That is true only up to a point. The more important questions are under what law and in what forum any resulting disputes are to be adjudicated.
Assuming for arguments sake that the Applicant was the landlord in this case before the Tenancy Tribunal, and the Embassy the tenant, it must be reasonably considered that when agreeing to rent premises to an Embassy, that they were providing accommodation for the operation of the Embassy, and like Ms Sutton, consented to an arrangement which fell outside of the usual protections afforded ordinarily to landlords in New Zealand under the Residential Tenancies Act 1986 (RTA).
As I have indicated above, sovereign immunity is not an absolute rule, and one of the relevant exceptions in this case is where the subject of the dispute is commercial in nature. However I am not persuaded that the rental of a residential dwelling to an Embassy would be commercial in nature, as the common law around diplomatic or sovereign immunity would consider it. I note a previous order of the Tribunal, being Matthew Peter Ryan v Eva Tvarozkova [2018] NZTT 4115771. In that case a landlord was bringing a claim against a diplomat for damage to the tenancy premises. The tenant was a diplomat with the European Union. While this was a dispute over a diplomatic immunity, rather than a sovereign immunity, a significant argument made for the landlord was that the commercial activity exclusion would apply. In that decision I set out the relevant case law, but ultimately concluded that there are two threads that emerge from those judgments, as to circumstances that would comprise a commercial activity, being: a. a commercial activity does not extend to include an activity incidental to the daily life of the diplomat, and b. a commercial activity applies to an activity engaged in for profit.
I cannot see any reason those considerations would be different when considering the commercial exclusion in a case regarding sovereign immunity. I noted in the Tvarozkova decision: It would not be difficult to conclude that entering into a lease for a residential dwelling, and performing the tenants obligations under that lease, would be an activity incidental to the diplomats life in their receiving State.
I have received no evidence at to the specific purpose the premises were rented, but if in fact it was a rental for the Embassy, I would presume the lease related to the operation of general Embassy business (certainly there is no evidence to contrary), which would mean the lease would be incidental to the operation of the Embassy, therefore not captured by the exclusion.
The second basis to conclude that the commercial exclusion would apply, is if was an engagement for profit. There is no evidence or suggestion that the lease for this tenancy was engaged in for profit on the part of the Embassy.
The result must be that the commercial activity exclusion has not been established, and therefore I conclude that the Respondent remains availed of sovereign immunity for this claim. On that basis the Tribunal does not hold jurisdiction to consider this claim, which is therefore dismissed.

Tenancy Tribunal case 4339494 — Cleanliness at 40 Pipitea Street, Thorndon, Wellington 6011, Pipitea Mews

At a glance

Tenancy Tribunal case 4339494 — Cleanliness at 40 Pipitea Street, Thorndon, Wellington 6011, Pipitea Mews

At a glance

Claims & awards

Order

Reasons

BACKGROUND

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions