Published tribunal order
Tenancy Tribunal case 4490560 — Rent arrears
Decided 5 Oct 2023 · Published 5 Oct 2023 · Application 4490560
- Rent arrears
Party names are redacted in the official published order.
Order
- The Tribunal’s previous order around name suppression continues to apply.
- [The tenant/s] to pay [The landlord/s], the sum of $1,840.37, calculated as follows: ItemAmount ordered Rent arrears as of 6 July 2023$1,819.93. Filing fee reimbursement $20.44 Total amount payable by tenant to landlord$1,840.37
- The application for rehearing is dismissed.
- The stay in relation to the order terminating the tenancy and granting possession of the premises to the landlord, is lifted.
- The hearing is adjourned pending submissions on costs.
Reasons
- The Tribunal has before it applications from the landlord against the tenant. The background in this case has been lengthy and complicated, with a number of previous hearings and orders having been issued. However the remaining two issues for the Tribunal to consider is firstly whether a rehearing can be ordered in relation to a decision ordering termination of the tenancy, and secondly whether rent arrears can be ordered.
BACKGROUND
- The background in these claims is involved, and the Tribunal’s files now sit around the 2,000 page mark. A file that size is unusual in this Tribunal, particularly given the issues in dispute. I will attempt to summarise the background as succinctly as possible, and in chronological order.
- The parties entered into a fixed term tenancy agreement, commencing on 23 July 2022, ending on 23 February 2023. The landlord is [The landlord/s] by way of an agent, property manager, [The property management company]. The sole tenant is [The tenant/s].
- Unfortunately over the course of the tenancy, things did not go smoothly. There was a problem with the oven, washing machine and laundry. The landlord agreed to pay compensation for the oven at $70.00 per week from the start of the tenancy. The landlord paid a lump sum to the tenant of $490.00 oven for the first seven weeks of the tenancy. There is a dispute as to when the $70.00 payments should end however, and that is relevant for the rent arrears claim before me. Otherwise the landlord also paid compensation for the washing machine and laundry, but that was not raised in dispute at this current hearing.
- Further dispute arose between the parties around the landlord being able to access the property so as to undertake the necessary maintenance and inspections. Put simply the tenant would not allow entry for the landlord except on her terms. I note here that the landlord had obligations under the Residential Tenancies Act 1986 (RTA) to maintain the premises as required, and furthermore has a statutory right to enter the premises for maintenance and inspections with notice. Application 4402060 (termination because of failure to allow landlord entry)
- On 19 September 2022, the landlord applied to the Tribunal for orders terminating the tenancy on the grounds that the tenant has not allowed access to the premises, and further allowing access in order to carry out the repairs and cleaning requested by the tenant. Order 25 October 2022
- A hearing was convened on 25 October 2022 before Adjudicator Ms Merrett. There was no appearance by the tenant. The hearing was adjourned, but the Adjudicator put the tenant on notice that she needed to allow the landlord entry to the premises, and that there was a risk the tenancy would be terminated if she did not comply: Taking into account the particular circumstances here, I consider that it would not be equitable (fair) to terminate the tenancy today. However, it is clear that the refusal to allow the landlords their legitimate right to access the premises cannot continue. I therefore give [The tenant/s] a further opportunity to allow the landlord, the property managers, or contractors employed by the landlord to access the premises to complete repairs (or any work the landlord considers necessary) to remedy the issues with the oven and to repair the outside lighting. The landlord must first give [The tenant/s] at least 24 hours’ notice in writing of the date and approximate time of the intended access and [The tenant/s] must allow that access to occur. I therefore adjourn the application for termination and the parties will be advised by Tenancy Services of the date and time of the next hearing. [The tenant/s] should be aware that her tenancy may be at risk of termination at the next hearing if she does not allow access as set out in paragraph 10 (above).
- The landlord gave a further notice for a property inspection on 21 November 2022, and later the landlord reporting that the tenant refused entry for that inspection also. The tenant issued trespass notices for various officers of the landlord. Application 4490560 (Landlords application for rent arrears and termination due to rent arrears)
- On 26 January 2023, the landlord filed a second application with the Tribunal, that is application 4490560. The landlord sought a termination of the tenancy on the grounds that the rent arrears at the date of filing the application, was more than 21 days of arrears (an application under section 55 of the RTA). The application also sought an order that the tenant pay rent arrears. Application 4508655 (Tenants application for work orders, compensation and exemplary damages)
- On 7 March 2023 the tenant filed an application against the landlord. The application related to a claim for works orders and compensation in relation to the oven, and also a claim for exemplary damages for the landlord acting to terminate the tenancy without grounds. Subsequently the tenant amended the application to include a request for further a number of additional orders. However on 31 May 2023 the tenant withdrew this application.
- On 10 March 2023 the landlord issued a termination notice to the tenant, stating: We are writing to advise that we are providing you 90 days notice to vacate, for your tenancy at [Tenancy address suppressed], for the following reason: The property is to be put on the market and the owner requires vacant possession of the dwelling at the conclusion of the 90 days Your final day of tenancy being: 08/06/2023. Order 16 March 2023
- On 15 March 2023, Adjudicator Merrett convened a further hearing, then issuing a decision on 16 March 2023, making the following orders: a. The landlord’s application for termination of the tenancy due to rent arrears (4490560) was dismissed. The Adjudicator considered that the landlord had not established a breach of the tenants rent obligations, necessary to support termination of the tenancy b. Adjourning applications 4490560, 4402060 and 4508655. c. In relation to 4402060 (access to the premises), the Adjudicator recorded that there was agreement at the hearing that [The tenant/s] would allow the landlord entry to the premises following notice, and on the basis that specific people would be attending for the inspection. The Adjudicator stated:
- I am therefore prepared to give [The tenant/s] the chance to allow the inspection to take place in the manner agreed. The application is therefore adjourned. However, [The tenant/s] should be aware that if she refuses to allow the inspection to take place in the manner set out above her tenancy is likely to be terminated when it next comes back before the Tribunal.
- On 17 March 2023 the landlord’s legal representative gave notice of a further proposed entry to the premises.
- In multiple subsequent emails the tenant confirmed that she refused entry.
- On 24 March 2023 [The landlord’s representative/s], counsel for the landlord, requested a further hearing to proceed with the application for termination on the grounds of further refused entries to the premises.
- On 18 April 2023 [The tenant/s] signed an authority to act form for [The tenant’s representative/s], approving the organisation to act in relation to the matter before the Tenancy Tribunal. Order 2 May 2023
- On 27 April 2023 a hearing was convened in relation to application 4402060. The Adjudicator was Ms Morgan. Ms Morgan recorded that both parties attended the hearing and “Both were represented by counsel”.
- Ms Morgan summarised the prior hearings and orders, before addressing the question of whether the tenancy should be terminated. Ms Morgan recorded:
- Given the previous findings of the Tribunal, the only issues for me to determine are whether there has been a further refusal to allow access to the premises and, if so, is the tenant’s breach now of such a nature and extent, it would be inequitable to refuse termination. See s56(1)(c) Residential Tenancies Act 1986.
- The evidence establishes that the tenant did refuse access again following the Tribunal’s Order of 16 March 2023. Following requests for entry on 17 and 21 March, [The tenant/s] sent an email which stated: “...so no one is entitled to come to my home tomorrow.”
- [The tenant/s] says that since the end of the March, she has allowed access for repairs to be completed by competent trades people. [The tenant/s] has granted access, after landlord’s Memorandum of 24 March seeking immediate termination. I am not persuaded that allowing access in those circumstances represents a genuine intention to comply with [The tenant/s]’s obligations, especially considering the contemporaneous correspondence from her to the landlord or its agents and representatives. The correspondence is argumentative and obstructive.
- [The tenant/s] also gave evidence that she now has a positive relationship with Counsel for the landlord. Counsel did not accept that assessment and referred to correspondence where [The tenant/s] called him a “moron” and objected to communicating with him.
- I am not satisfied that [The tenant/s] will allow lawful entry by the landlord or its agents, without the constant oversight of the Tribunal. She has been given two opportunities to allow access but failed to do so until it was apparent that the tenancy would be terminated.
- Put another way, I am satisfied that [The tenant/s]’s persistent refusal to allow access to the landlord is now of such a nature and extent that it would be inequitable to refuse termination.
- It is reasonable to allow [The tenant/s] some time to make alternative living arrangements. The tenancy will terminate, and the landlord will be entitled to possession of the premises at 4pm on Monday, 22 May 2023.
- Ms Morgan ordered suppression of both parties names. Application for rehearing filed
- [The tenant/s] filed an application for rehearing, recording: Reasons for rehearing
- The Tribunal on several occasions failed to comply with s 91 of the Residential Tenancies Act 1986 for the hearing which was held on 25 October 2022. Accordingly, there was no lawful basis to hear and determine the matter on 25 October 2022, and no lawful basis to adjourn the matter, as per s 92 of the Residential Tenancies Act. As such, it was unjust for the Tribunal to rely on this order in making its order on 2 May 2023, as it did.
- The Tribunal and/or the adjudicator failed to comply with s 65 and s 66 of the Human Rights Act 1993, amounting to an unjustified limitation on the applicant's rights as per s 19 and s 27 of the New Zealand Bill of Rights Act 1990.
- The Tribunal disregarded relevant considerations and took irrelevant considerations into account, including that an order to terminate the tenancy was made before evidence arising from relevant cross- application claims by the applicant could be considered, and that the Tribunal failed to give appropriate weight to the wording of an order of the Tribunal made on 16 March 2023.
- The Tribunal failed to comply with s 56 of the Residential Tenancies Act, including, but not limited to, by not considering or addressing s 56(l)(b) as part of its decision.
- The Tribunal failed to comply with natural justice to the detriment of the applicant.
- The Tribunal failed to consider claims brought by the applicant with regards to the correct interpretation of "landlord" and "agent" as per s 2(1) of the Residential Tenancies Act.
- In granting the request by the applicant in applying for representation for the hearing on 27 April 2023, the Tribunal's actions resulted in non- compliance with s 93(4) of the Residential Tenancies Act. These failures resulted in a substantial miscarriage of justice. The Tribunal ordered the termination of the tenancy in circumstances where it was not lawful to do so. The tenancy has been ordered to terminate on 22 May 2023 and the tenant will likely be forced to vacate the premises in circumstances where she will have substantial difficulty in finding a new place to live. Accordingly, the applicant seeks orders for a stay of proceedings to maintain the status quo and extend the tenancy until her application for a rehearing can be dealt with by the Tribunal Order 10 May 2023
- Following receipt of the rehearing application, Ms Morgan ordered that a three-hour hearing be scheduled to consider the rehearing request. Ms Morgan ordered a stay of proceedings until the rehearing application was decided. Directions 23 May 2023
- On 23 May 2023 Adjudicator Morgan issued directions that: a. Any communications filed with the Tribunal needed to be forwarded to the other party; and b. Ordered an adjournment in relation to application 4402060 to a hearing date in July. Adjudicator Morgan noted that [The tenant/s] has had some 7 months in order to arrange legal representation, however the Adjudicator approved an adjournment until July, stating that: However, having regard to [The tenant’s representative/s]’s letter of 18 May 2023, I am prepared to grant a further, finite, adjournment of the rehearing hearing for [The tenant/s] to obtain representation. Directions 24 May 2023
- On 24 May 2023, Adjudicator Ms Merrett issued directions: a. Approving legal representation for the tenant; and b. Adjourning applications 4508655 and 4490560 to be heard in July 2023. In relation to the adjournment, Ms Merrett stated: I endorse Ms Morgan’s comments in her 23 May adjournment directions. [The tenant/s] has had ample time to appoint counsel and I recall suggesting to her at the October 2022 hearing that she consider obtaining assistance, whether legal or otherwise, to prepare and present her case. However, I also agree with Ms Morgan’s comments that, in light of [The tenant’s representative/s]’s letter of 18 May 2023, a further finite adjournment is appropriate.
- Subsequently both Mr Morgan and Ms Merrett recused themselves from dealing what these matters. Both cases have been allocated to myself.
- A hearing was convened in [Event location suppressed] on 6 July 2023, in order to hear the two outstanding applications under 4402060 and 4490560. In attendance was [The tenant/s] who attended by telephone at her election. Attending in person was [The landlord’s representative/s] (counsel for the landlord) and [The property manager/s], who are officers of [The property management company].
PROCEDURAL NOTE
- At the commencement of the hearing on 6 July 2023, I advised both parties that in my assessment of the file, there are only two matters to be adjudicated, that is the application for rehearing and the application for rent arrears.
- Having considered the file, it was clear that both parties considered the matters that would be considered at this current hearing were beyond those two narrow issues. They are not. The Tribunal can only adjudicate matters that are the subject of applications, and in this case the only outstanding applications are around the rehearing and rent arrears.
- The Landlord believed there was an outstanding exemplary damages claim on application 4402060. That application was the subject of Ms Morgan’s decision from 2 May 2023. As I explained at the hearing, that decision was final, it did not adjourn any matters such as exemplary damages. If the Landlord considered that Ms Morgan had missed that claim, then the Landlord could have appealed that decision to the District Court, or requested a rehearing, but the Landlord has done neither. That means all I can consider as far as that application number is concerned, is whether a rehearing can be granted of Ms Morgan’s decision to terminate the tenancy and grant possession to the landlord.
- [The tenant/s] also raised a number of procedural / jurisdictional matters. I will address the matters [The tenant/s] raised at the hearing, as follows: a. [The tenant/s] requested that the parties promise to tell the truth. While the Tribunal can request that evidence be given on promise. The District Court has confirmed that the Tribunal should not require parties to present their case under statutory promise, when what they say comprises a mixture of evidence and submissions (See Cooke v Rugg [2015] NZDC 5612). In any event I do not consider that there was any evidence given by the landlord at the hearing on 6 July 2023 that needed to be given under promises. The landlords case was presented by way of submissions with reference to documentary evidence. b. It was submitted that the tenant has not received proper notice for the original hearing, and by association this hearing. I am satisfied that proper notice has been given, and I will explain why further below. c. It was submitted that ‘[The property management company]’ are not the landlord, and should not be granted a right of appearance. At the hearing I confirmed my acceptance that the landlord is [The landlord/s], and that [The landlord/s] has appointed an agent that is property manager, [The property management company]. I am satisfied that [The property manager/s] are officers of [The property management company]. I am also satisfied that [The landlord’s representative/s] appears as counsel for the agent. I note section 2 of the RTA (the interpretation section) provides a definition of ‘landlord’ and that includes confirmation that ‘landlord’ includes an agent of the landlord. Therefore technically [The property management company] would be deemed a landlord under the RTA. d. Finally it was submitted that what was occurring on 6 July 2023 was a ‘conversation’ not a ‘hearing’. That is not the case. The matter was scheduled as a hearing. At no stage has [The tenant/s] been advised otherwise.
- I was satisfied that the Tribunal has notified the parties of the hearing, and so the hearing proceeded to hear both applications. TENANT’S APPLICATION FOR REHEARING (4402060)
- The tenant submits that a rehearing should be granted on seven grounds which I will address shortly. Relevant law
- Section 105 of the Residential Tenancies Act 1986 relates to rehearing’s. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
- The applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in the District Court Judgment of Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard, and that: [18] ... They most obviously apply ... to cases of procedural error eg a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available. [19] In my view, however, the words do not cover a complaint that the Tribunal was merely mistaken or wrong in its findings of fact or in its application of the law. There are two reasons for this. First the strength of the language in s 105 is such that something more than a mere wrong decision must be shown. The section does not speak of a decision being wrong, but of a substantial wrong or miscarriage of justice occurring. This implies obvious injustice, not merely an erroneous decision. [20] Secondly, if a mere erroneous decision is enough, whether the error is factual or legal or both, it would enable parties to in effect appeal any decision twice: once to the very Tribunal which made it by way of an application for rehearing, and then again to the District Court against the grant or refusal of the application for rehearing. Not only does that offend the general hierarchical nature of the appeal system, it would also make the time limit for filing notice of appeal against an original decision nugatory.
- As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made. Analysis
- The tenant presented her application for rehearing based on 7 specific grounds. I will consider each in turn. a. The Tribunal on several occasions failed to comply with s 91 of the Residential Tenancies Act 1986 for the hearing which was held on 25 October 2022. Accordingly, there was no lawful basis to hear and determine the matter on 25 October 2022, and no lawful basis to adjourn the matter, as per s 92 of the Residential Tenancies Act. As such, it was unjust for the Tribunal to rely on this order in making its order on 2 May 2023, as it did.
- [The tenant/s] submits that in her original notice of hearing for the October 2022 hearing, she had not been notified that the hearing was to consider a termination of the tenancy, only issues around cleaning the oven, so that is all she was prepared to argue. [The tenant/s] said she wanted an amended notice of hearing so she could know what would be discussed at the hearing but this was not provided. [The tenant/s] states that she was in a difficult time mentally then. Ultimately matters were discussed at the hearing that were not consistent with the notice. There has been a breach of sections 91 and 92 of the RTA. Further it was submitted that an adjournment should have been granted.
- In response [The landlord’s representative/s] submits that it is not clear what the nature of the breach of sections 91 and 92 is, the only question would be whether notice was received, which it was. Further in the original order the Tribunal did not terminate the tenancy. The original hearing notice included reference to an application under section 56.
- In conclusion the tenant accepts that a notice of hearing was received for the original hearing, but again submitted that it was deficient.
- The tenant accepted that [The tenant’s representative/s] who was at the hearing on 27 April 2023 is a lawyer, but states he was not representing the tenant at that time. There has been an injustice in the hearing proceeding with one party who is experienced and legally represented, going ‘head to head’ with someone with [The tenant/s]’s disabilities. Analysis
- It is important to emphasise that the rehearing request relates to the decision issued on 2 May 2023. So the question is ‘what went wrong with the procedure for that hearing’. What the tenant is arguing is that she did not get proper notice of the first hearing in October 2022.
- Nevertheless, I am not persuaded that she was not given proper notice of the original hearing (which [The tenant/s] did not attend), because the original hearing notice for the 25 October 2022 hearing records it was to consider an application under section 56, which is a termination provision in the RTA. Furthermore the tenant was provided with a copy of the application filed by the landlord, in which the landlord has clearly claimed for a termination of the tenancy. The application form states: I am seeking termination of the tenancy because at the date I filed the application. Termination for a breach of the tenancy agreement that is incapable of remedy - a 14 day notice has not been issued for this breach.
- It was clear in my view, that the original hearing was to consider a termination for a breach of the tenants obligations, that is a termination application under section 56.
- However, even if that were not the case, there is no doubt at all that by the time of the hearing on 27 April 2023, that the tenant would have been squarely aware of the claim brought by the landlord being a termination. The tenant received two warnings from the Tribunal that her tenancy may terminate if she failed to allow the landlord entry to her tenancy.
- I am satisfied the tenant has been properly notified of the hearing as required in section 91 of the RTA.
- I will deal with the other matters raised under this ground below.
- Otherwise, no substantial wrong or miscarriage of justice has been identified on this ground actual or even potential. b. The Tribunal and/or the adjudicator failed to comply with s 65 and s 66 of the Human Rights Act 1993, amounting to an unjustified limitation on the applicant's rights as per s 19 and s 27 of the New Zealand Bill of Rights Act 1990.
- The tenant submits that she had not managed to find any representation given she is an isolated person. [The tenant/s] states that given her neurocognitive brain damage she is not able to adequately prepare for the hearings. [The tenant/s] submitted that she cannot perform on the same level as would the legal representative for the Landlord. [The tenant/s] states that accommodations were requested, and declined. In that regard a request was made to adjourn the hearing to allow another legal representative to be found. It was submitted that the Adjudicator was wrong in approving the landlord having a legal representative. While [The tenant’s representative/s] was in attendance at the April 2023 hearing, it was not as a representative and he did not know the relevant law.
- In response [The landlord’s representative/s] submitted that in all hearings the applicant has been afforded consideration to meet her specific needs. It is not clear how there has been any discrimination against the tenant, she has not been treated differently to the landlord given her disabilities. Analysis
- There is no evidence to support Ms Morgan (or Ms Merrett) breaching any obligations in relation to the Human Rights Act, or New Zealand Bill or Rights Act. Section 66 of the Human Rights Act relates to indirect discrimination, and section 67 victimisation. Section 19 and 27 of the New Zealand Bill of Rights Act relate to freedom from discrimination and a right to justice. There is no evidence before me to show that [The tenant/s] has been indirectly discriminated against. The evidence points to the adjudicators treating both parties on the same footing. I cannot see how the adjudicators have victimised the Tenant or otherwise having discriminated against her or infringed her right to justice.
- As noted below, having considered the evidence and having listened to the hearing recording, I am satisfied that [The tenant/s] was represented by counsel at the hearing, and it could not be said there was a material disparity in legal skill of the parties before Ms Morgan.
- Even if that were not the case, I agree with Ms Merrett and Ms Morgan, that the Tenant had a fulsome opportunity to arrange legal support and representation by 27 April 2023, particularly given the landlords application was lodged in September 2022, therefore the tenant nearly half a year to arrange legal representation.
- No substantial wrong or miscarriage of justice, has been identified on this ground, actual or potential. c. The Tribunal disregarded relevant considerations and took irrelevant considerations into account, including that an order to terminate the tenancy was made before evidence arising from relevant cross-application claims by the applicant could be considered, and that the Tribunal failed to give appropriate weight to the wording of an order of the Tribunal made on 16 March 2023.
- [The tenant/s] submitted that she has not unlawfully refused permission for the landlord to enter the premises. [The tenant/s] states that there may have been some confusion on her part, as she filed her cross applications in relation to the claims made against her by the landlord. The Adjudicator did not hear the tenant’s evidence because she had categorised them as separate claims. Her evidence has not been considered. The Adjudicator gave more leeway to [The landlord’s representative/s] to present the landlords case, than had been given to the Tenant.
- [The landlord’s representative/s] submitted that the Tribunal had ruled that the tenant had been unlawfully refusing entry to the premises prior to the hearing on 27 April 2023. [The landlord’s representative/s] noted that there had been a previous refusal to allow access to the premises, and the Adjudicator was satisfied on the evidence regarding that. It was submitted that [The tenant/s] had been given a fair opportunity to present her case to the Tribunal. The matter before the Tribunal was not a discretionary decision matter, it was issued within the powers of the RTA, otherwise the tenant has not explained where the adjudicator went wrong in her discretionary decision making.
- In conclusion [The tenant/s] made submissions around work that had been undertaken in the premises by the landlord as being substandard and at times unlawful (ie electrical work), leading to safety concerns for the tenant, so the Tenant was justified in declining access to the premises. Ms Morgan had not taken the tenants evidence into account sufficiently. Analysis
- Again I have listened to the hearing recording from 27 April 2023. My impression is that the parties did have a fair opportunity to raise issues that were important to them. My impression was that each party used around half of the hearing time to present their cases. Further I consider that each party was treated equally. I consider Ms Morgan’s decision does reflect an understanding of the background that is consistent with the information on file, and raised at the hearing on 6 July with me.
- The arguments made by the tenant at the hearing amount to a submission that Ms Morgan got her decision from 2 May 2023 wrong on the facts, or that Ms Morgan was mistaken on what she needed to decide. [The tenant/s] has not convinced me that is the case, but in any event that would not be grounds for a rehearing, but could have formed the basis for an appeal to the District Court.
- I do not consider it was an absolute requirement for the Adjudicator to have heard the tenants cross application before issuing her decision, the tenant was able to present her side of things at the hearing on 27 April 2022, and I believe she did so.
- No substantial wrong or miscarriage of justice, has been identified on this ground, actual or potential. d. The Tribunal failed to comply with s 56 of the Residential Tenancies Act, including, but not limited to, by not considering or addressing s 56(l)(b) as part of its decision.
- [The tenant/s] submitted that the Tribunal had incorrectly failed to consider all requirements in section 56, in that the adjudicator had not considered if the breach could be remedied.
- [The landlord’s representative/s] submitted that at the hearing on 27 April it was considered in submissions whether the breach was capable of remedy, but it was not capable of remedy. However it was submitted that even if the Adjudicator was wrong in not considering subsection 1(b), that would not be a ground for rehearing.
- In conclusion [The tenant/s] submitted that any claimed breach was capable of remedy. Analysis
- Section 56 is a general termination provision. It provides the Tribunal with an ability to terminate the tenancy when: a. The other party has committed a breach of the Act; and b. “in the case of a breach capable of remedy”, that the applicant has given a 14 day notice, and the tenant has not complied with that notice; and c. The breach is of such a nature or such an extent that it would be inequitable to refuse to terminate the tenancy.
- Accordingly then, if the breach was capable of remedy then a 14 day notice must be given before the Tribunal could order termination of the tenancy, but if the breach is not capable of remedy, that step is not needed.
- I agree with [The landlord’s representative/s], that the issue of whether the breach was capable of remedy was raised at the hearing, [The tenant’s representative/s] provided specific submissions on that issue. In fact it was a matter raised on a number of occasions during the hearing and was an issue of prominence.
- I do agree with [The tenant/s] that Ms Morgan did not discuss in her decision what her conclusion was in relation to whether the breach was capable of remedy, but that is not the same as saying the Adjudicator did not consider it. There is however an inference in Ms Morgan’s order that she considered that the breach was incapable of remedy, where Ms Morgan wrote that: I am not satisfied that [The tenant/s] will allow lawful entry by the landlord or its agents, without the constant oversight of the Tribunal. She was given two opportunities to allow access but failed to do so until it was apparent that the tenancy would be terminated.
- On balance, I consider it more likely than not that Ms Morgan had determined the breach was not capable of remedy, so the adjudicator did not need to analyse the merits of section 56(1)(b).
- While I have reached a conclusion on that matter, [The landlord’s representative/s] is right that even if the adjudicator had misapplied the law, that would not be a matter for a rehearing consideration, but would be an issue for an appeal to the District Court.
- No substantial wrong or miscarriage of justice, has been identified on this ground, actual or potential. e. The Tribunal failed to comply with natural justice to the detriment of the applicant.
- [The tenant/s] submitted that this is a broad ground, and she was not entirely certain why this ground was put as a separate point. But it was submitted that natural justice is about fairness, and there was no fairness arising in this case. It was submitted that the result has not been fair or expeditious, taking into account the disparity of skill between the parties, and the fact that [The tenant/s] has not been heard. The Tenant needs preparation time.
- [The landlord’s representative/s] submitted that there have been a number of adjournment requests approved, and every reasonable opportunity has been given to the Tenants to prepare and present her case. [The tenant/s] has been given every opportunity to be heard, and she has been heard. There is no breach of natural justice.
- In conclusion [The tenant/s] advised that the hearing on 27 April should have considered matters from the start. If proper notices of the hearing had been given so she knew what she needed to address, then the matter would not have “dragged on” as long as it has. Analysis
- I am not of the view that there was a material disparity between the parties. Both parties were legally represented at the hearing. Having listened to [The tenant’s representative/s]’s submissions at the April 2022 hearing, I consider that he did have a good understanding of the case and relevant law. Again the tenant has had a fulsome opportunity to have prepared for the hearing given the final hearing was more than five months following the Landlords application being filed.
- I am entirely satisfied that the tenant has had a fair opportunity to present her case and engage in the proceeding. I have seen nothing in this case to suggest a breach of [The tenant/s]’s natural justice expectations. During the hearing Ms Morgan did not push the parties or limit their time in presenting their cases, she gave a fulsome opportunity for [The tenant’s representative/s] and [The tenant/s] to provide any response in defence of the claim.
- [The tenant/s] is right, natural justice is about fairness. But fairness in a proceeding does not necessarily mean a party will have an unlimited opportunity to prepare for the hearing. An adjudicator when faced with adjournment requests will balance many factors when deciding if an adjournment will be approved, and that includes the views of the other party. There in an expectation in the RTA that the Tenancy Tribunal act expeditiously.
- I do not however note there was one aspect of the hearing that did follow established hearing routine. Normally a hearing proceeds by hearing from the applicant, then the respondent, and then concluding submissions from the applicant. In this case the adjudicator followed that usual order, then after hearing from the respondent (the tenant), Ms Morgan asked [The tenant/s] and [The tenant’s representative/s] if they had said what they wanted to say, and they confirmed they had. Ms Morgan would surely have believed that they had presented their defence. Concluding submissions where then provided from the applicant (the landlord). That complied with accepted process. However when Ms Morgan was concluding the hearing (asking about name suppression requests), [The tenant/s] advised that she had not presented her case yet. Ms Morgan fairly noted that that earlier [The tenant/s] and [The tenant’s representative/s] had confirmed the respondent had said what they wanted to say. [The tenant/s] advised the situation arose consequent to her disability. Ms Morgan then proceeded to direct a short break, after which the hearing was reconvened to give [The tenant/s] and [The tenant’s representative/s] a further chance to present the tenants case.
- The Adjudicator again concluded this further phase of evidence and submissions by asking whether [The tenant/s] had anything further to say to which [The tenant/s] again confirmed she had finished. Only then did the landlord prove any further concluding submissions, after which the hearing was closed.
- In the circumstances I consider that Ms Morgan acted appropriately in adjourning and allowing the further submissions and evidence, which in turn has afforded [The tenant/s] the opportunity to fairly present her case.
- I also make the observation that at times when [The tenant/s]’s evidence was straying away from the issues to be adjudicated, Ms Morgan stopped [The tenant/s] to remind her of what the adjudicator needed to consider. That was the right thing to do. That approach would if anything assist the tenant to present her case on the relevant points the adjudicator would be turning her mind to.
- As above, I find that [The tenant/s] has received proper notice of the hearings.
- No substantial wrong or miscarriage of justice, has been identified on this ground, actual or potential. f. The Tribunal failed to consider claims brought by the applicant with regards to the correct interpretation of "landlord" and "agent" as per s 2(1) of the Residential Tenancies Act.
- [The tenant/s] did not advance this claim further, given my earlier acceptance that the landlord is [The landlord/s] by way of an agent, property manager, [The property management company], and further that [The landlord’s representative/s] was properly appointed as the representative of the agent. g. In granting the request by the applicant in applying for representation for the hearing on 27 April 2023, the Tribunal's actions resulted in non-compliance with s 93(4) of the Residential Tenancies Act
- [The tenant/s] submitted that the Tribunal has wrongly approached the approval of legal representation to the landlord, on the basis of the tenant being ‘granted’ counsel. In this case [The tenant’s representative/s] was only working to find a lawyer to represent her, not actually represent her. Otherwise [The tenant/s] could not afford legal representation. [The tenant/s] states that she had requested four weeks adjournment in order to find a lawyer.
- [The landlord’s representative/s] submitted that at the time the tenant had filed an application for damages more than $6,000.00, so the landlord was entitled to be represented by counsel. Further the tenant was in fact represented by counsel, so the Tribunal was statutorily required to grant leave to counsel.
- In conclusion [The tenant/s] submitted that [The landlord’s representative/s] had misinterpreted the statute. It is disputed [The tenant/s] had a fair opportunity to find a Lawyer to represent her. [The tenant’s representative/s] was from [The tenant’s representative/s] appeared at the hearing as a “legal advocate with a law degree”, not counsel. Analysis
- As indicated above, I have listened to the hearing recording from 27 April 2023. At the commencement of the hearing the parties introduced themselves, with Ms Morgan recording in the introduction that [The tenant’s representative/s] was appearing as “counsel” for [The tenant/s]. Importantly, neither [The tenant/s] nor [The tenant’s representative/s] correct the adjudicators understanding. Furthermore, the hearing proceeded as would be expected in a case where a party was represented. That is [The tenant’s representative/s] presented the case for the tenant, just as counsel would do.
- At the hearing on 6 July 2023, [The tenant/s] confirmed that [The tenant’s representative/s] was a lawyer with the [The tenant’s representative/s] office, and in that regard [The tenant’s representative/s] had provided an authority from [The tenant/s] to act as a legal representative. That again is entirely consistent with [The tenant’s representative/s] appearing as counsel.
- Furthermore, I note that in communication with the Tribunal, such as an email from 18 May 2023, [The tenant’s representative/s] has referred to himself as “Lawyer”.
- For those reasons, I find that [The tenant/s] was legally represented at the hearing on 27 April 2023, she was represented by counsel as we would understand that term in New Zealand.
- Section 93(4) of the RTA relates to a right of audience in the Tribunal, and holds: (4) Where any party to any proceedings before the Tribunal is represented by counsel, any other party to those proceedings may be represented by counsel.
- Because [The tenant/s] was represented by counsel, whether that be [The tenant’s representative/s] or any other lawyer from [The tenant’s representative/s] in general, then the Landlord was statutorily entitled to be represented by counsel at the hearing.
- Subsection 4 above does not provide a discretion to the Tribunal to refuse the other party being legally represented as [The tenant/s] submitted. Use of the word ‘may’ indicates an election that the other party can make, as to whether they wished to be legally represented, not a discretion on the Adjudicator to approve counsel.
- I also note for completeness, that even if [The tenant/s] was not legally represented, Ms Morgan (or Ms Merrett) could have approved the Landlord being represented by counsel under section 93(4): The Tribunal may allow any party to be represented by counsel if it considers that it would be appropriate to do so, having regard to— (a) the nature and complexity of the issue involved; or (b) any significant disparity between the parties affecting their ability to represent their respective cases.
- There is no doubt that the case was complex, and in circumstances of considerable friction between the parties. Ms Morgan could have approved the Landlord being legally represented whether or not [The tenant/s] was also legally represented.
- No substantial wrong or miscarriage of justice has been identified on this ground, actual or potential. Conclusion in relation to rehearing
- I have considered the grounds advanced by the tenant for why a rehearing should be granted. My assessment is that it has not been established to the balance of probabilities that there was any possible miscarriage of justice of substantial wrong.
- In my view the tenant has had a very fair opportunity to present her case and to obtain any necessary support. I further find that [The tenant/s] was represented by counsel at the hearing, and in the that regard [The tenant’s representative/s] represented [The tenant/s] to a high standard. The fact that [The tenant/s] was not successful, is not evidence that her legal representative did a substandard job – the evidence and the law was not on [The tenant/s]’s side in this case.
- The application for rehearing must be dismissed. That means the stay ordered in relation to the Termination is lifted. The Landlord can enforce the possession order if he wishes to do so. LANDLORD’S APPLICATION FOR RENT ARREARS (4490560)
- The landlord seeks an order for rent arrears. The landlord has provided an updated copy of the rent ledger in support of this claim. The only area of dispute between the parties over rent claim, is the date that a $70.00 rent reduction was to apply to in relation to the oven. The landlord says it should end on 14 September 2023 because on 15 September 2023 the tenant refused entry to clean the oven. The tenant disputes that, and considers it should go on until the oven was replaced more recently. Landlords case
- The landlord submits that the rent arrears as of 6 July 2023 is $1,819.93, and seeks an order to that amount, minus the oven credit. The landlord considers the $70.00 rent credit for the oven should only apply to 14 September 2023, as on 15 September 2023 the Tenant refused the landlord entry to undertake the needed works to the oven – cleaning it. To that extent the landlord submits that the tenant should not be able to profit from her refusal to allow entry. In the alternative the landlord submits that the credit should only apply until 31 October 2022, when cleaning of the oven occurred, unknown by the landlord at that time. Tenants case
- The tenant’s position is that a $70.00 rent credit should apply until the oven was completely ‘repaired’, which occurred when it was replaced in April 2023. Analysis
- This dispute is relatively straightforward, and turns on the question of the date that the $70.00 credit for the oven should come to an end?
- There is no dispute between the parties that there was an agreement that a $70.00 rent credit to be provided for the oven. At the hearing we referred to an email on 8 September 2022, where the property manager made the following offer: With regards to the oven and relevant to my email yesterday, we would like to offer compensation of $70 per week for the loss of service here from the start of your tenancy, until this has been fully resolved.
- The tenant responded that same day, accepting that offer.
- It is the case that the landlord had paid the tenant the sum of $490.00 by way of a bank transfer. To put there’s another way, that money was not included in the rent ledger, it was a direct compensation payment to the tenant. The landlord’s position is that $490.00 represented the first seven weeks of the $70.00 payments. Therefore, the landlord considers that the compensation has already been paid to 8 September 2023.
- I accept that is the case. Based on the information on file I accept that the $490.00 lump sum payment was intended to comprise the first seven weeks of the $70.00 compensation payment. For example the property manager sent an email to the tenant on 8 September 2022 stating: I’ll arrange the $70 per week to be paid to you ASAP (I can do that tomorrow if we get the preferred bank account in time). Just need your preferred bank account for the funds. The payment would be from 23 July (start of tenancy) , up to 7 weeks so far to Friday 8th September inclusive. We can go from there after that.
- So the question then relates to the credit that should have been paid post 8 September.
- Having considered the information available, I find that the position taken by the Landlord was correct, and reasonable, that is that the further $70.00 should only be paid until 15 September 2022.
- The file shows that there was engagement between the parties as to what was necessary to address the issues with the oven. I note for example an email from the tenant of 8 September 2022, where she states that: So I am perfectly happy to receive your cleaner to look at my oven, because I also wonder if it takes more of a commercial cleaner to diagnose the problem.
- The landlord responded advising that they would work out who was best to assess the oven.
- On 14 September 2022, the tenant emailed the landlord advising that she had received a text message from [The cleaner] asking if she could attend the premises on 15 September to clean the oven. The tenant advised that she went back to [The cleaner] saying “thank you and that I’ll get back to her”.
- The tenant responded on 14 September 2022, advising that [The cleaner] could attend the premises at 4:00 pm on 15 September “to clean my oven”, and stating in part: This is, however, not what we agreed and you change the plan without keeping me informed, even though you’d promised to, and to keep the interference to me to a minimum. Then [The property manager/s] lied again to me about the agreement and you supported that lie by pretending [The property manager/s] and [The cleaner] said “clean and assess” rather than “clean” ... However, I want to be able to use my oven. So I’ll expect [The cleaner] tomorrow at 4. And the oven is still questionable I’ll take it from there.
- On 14 September 2022, the tenant emailed the landlord advising that she had cancelled the contractor: By the way, I’ve cancelled with [The cleaner] and she’s asked to see photos of the oven just in case she can assess it from that. So I now know [The property manager/s] didn’t tell her what the problem was and didn’t put through a correct work order. I’m sure [The property manager/s] knows this too. So, my instinct was correct. So no more bullshit about the oven.
- The landlord responded having spoken to [The cleaner] confirming she would be at the premises at 4:00 pm the following day.
- The tenant replied that same day, objecting to the notice that have been given. The subsequent emails from the tenant were accusatory toward the landlord, accusing the landlord of lying to her.
- On 15 September 2022, the tenant advised the landlord by email that she would let [The cleaner] know not to come to the premises for the oven cleaning: I’ll let [The cleaner] know not to come at 4 to clean my oven. I’m not breaking any RTA laws: I’ve asked for ages for an oven fix and been ignored. [The property manager/s] told me it would be assessed by someone suitable, and then pretended that we had agreed a domestic cleaner would clean it. I have no reason to trust [The property manager/s] or anyone she seems to my home. So will sort this out through the TT.
- In my assessment, the evidence favours a conclusion that the parties had agreed that the problems with the oven would be addressed, and in good faith the landlord had arranged for a cleaner to attend, no doubt with a view to determining whether that resolved the problem with the oven. That was a fair first step to take. While the tenant initially was agreeable to that course of action, she subsequently changed her position, and the cleaner attendance was declined.
- Taking into consideration the RTA, the obligation to undertake maintenance is with the landlord. The landlord has the right to determine how maintenance is undertaken, and who provides it. That being the case, I conclude that it was not reasonable for the tenant to have declined to allow the cleaner to attend the premises on 15 September 2022, when she did so. It must be implicit in the agreement around the $70.00 compensation payment, that the tenant would allow access to the premises, so that the oven could be addressed. Therefore, on 15 September when the tenant declined to allow access, the tenant was in affect stepping away from the agreement, to the extent that I am entirely satisfied that it will not be reasonable to expect the landlord to continue making the $70.00 compensation payments, from that date.
- At the hearing I calculated the total amount of rent that should’ve been paid over the course of the tenancy until 6 July 2023 as $16,951.43.
- The total amount of rent paid by the tenant is $15,061.50. If I add in the further week of $70.00 compensation (treating it as a rent credit), then that would take the rent paid to $15,131.50.
- Deducting the rent that would be due over the course of the tenancy ($16,951.43) from the rent paid ($15,131.50), then the rent arrears owing as of 6 July 2023 is $1,819.93.
- I note for completeness that is the same amount calculated as due in the landlords rent ledger. That amount is ordered to be paid by the tenant to the landlord.
FILING FEE
- Because the landlord has been successful in the rent arrears claim, I order the filing fee to be paid by the tenant.
REPRESENTATION COSTS
- The landlord has applied for representation costs.
- The Tenancy Tribunal only orders representation costs in limited circumstances as set out in section 102 of the RTA. One of those circumstances is where a party is represented by counsel as is the case for the landlord. The landlord has applied for representation costs, and given the landlord has been successful in the claims, I must consider that application. As I indicated to the parties at the hearing, cost claims are normally considered on the papers.
- I set timetabling for the presentation of the costs claim and respective submissions, as follows: a. The landlord to file the claim and submissions on costs by 1 August 2023. b. The tenant to file any response to that costs claim by 23 August 2023. c. The landlord to file any concluding submission by 7 September 2023.
- I will then issue a decision in relation to the costs claim in writing. I note for completeness, that any responses as timetabled above, must be filed with the Tribunal, and also the other party by the dates set out.
NAME SUPPRESSION
- The Tribunal has ordered name suppression to apply under application 4402060. I must accordingly order continued name suppression.