Published tribunal order
Tenancy Tribunal case 4535649 — Boarding House at Room 116, 187 Gillies Avenue, Epsom, Auckland 1023,
Decided 15 Feb 2024 · Published 15 Feb 2024 · Application 4535649
Mixed / unclear
- Boarding House
Order
approving the parties’ full and final settlement of their respective claims. The consent order reads: a. The landlord will pay $1,500.00 to the tenant on 16 November 2023 in full and final settlement of the claims filed herein. b. The tenancy will end on 16 November 2023 and vacant possession will return to the landlord on that date.
- On 6 November 2023, the tenant applied for a rehearing on the grounds that he was not allowed to present his case in full, to address most of the matters in dispute or to complete his submission. The tenant also claims that he entered into a settlement agreement under duress and that he is a victim of serious miscarriage of justice.
- At the hearing to consider the rehearing application on 31 January 2024, the tenant contends that he did not get to present his claim and submissions properly before he was interrupted. The tenant maintains that had he been able to cross examine Mr Heath the maker of the ASJ building report or known that he could have crossed examined him, that could have affected the outcome of the hearing and decision of the Tribunal resulting in the matter not being settled upon the agreed terms.
- While the tenant had brought along a community lawyer with him, the tenant says that he was only there as a support person. The tenant thought that his community lawyer/support person could not speak for him. The tenant says that he was knocked sideways by the landlord’s October 2023 termination notice and his state of mind was not right at the time. The tenant maintains that he has no intention of reneging on the agreement but felt hard done by for not being able to cross examine the landlord’s builder and finish his submissions.
- The tenant seeks an opportunity to relitigate the entire proceedings, in particular the issue of whether the landlord’s notices were retaliatory.
- Section 105(1) Residential Tenancies Act 1986 provides that the Tribunal has the power to order a rehearing where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
- Usually the party applying for the rehearing must show that something went wrong with the Tribunal’s procedure, for example, that they did not receive notice of the hearing or they were not able to properly present their case. A rehearing may also be granted where there is new evidence that was not reasonably available at the first hearing, if it could have affected the outcome.
- The District Court has held that if the Tribunal was simply wrong in its findings of fact, or its application of the law, this is not sufficient to establish a miscarriage of justice: a rehearing is not an alternative to an appeal. Furthermore, a rehearing will not be granted just because a party is unhappy with the decision, or to give them a second opportunity to present their case.
Has a substantial wrong or miscarriage of justice occurred?
- Having listened to the recording of the hearing on 30 October 2023 carefully, I find that Mr Arbuckle has failed to establish the grounds for a rehearing of the consent order reached on 30 October 2023. Mr Arbuckle had been allowed to present his case, to address the matters in dispute and complete his submissions prior to subsequently reaching a full and final settlement of the matters in dispute with the landlord.
- The hearing on 30 October 2023 commenced at 2.34pm; Mr Arbuckle attended with a support person who identified himself as a lawyer from a community centre.
- At the onset, I summarised the outcome of the previous hearing on 31 August 2023 which was adjourned to 30 October and the primary reason for the adjournment.
- I invited counsel for the landlord to address their latest Memorandum on a new notice issued to all tenants of the boarding house to vacate on 16 November 2023. On behalf of the landlord, counsel seeks an order for possession effective 16 November 2023.
- I then invited Mr Arbuckle to speak at 2.37pm whereby he submitted that previous large scale renovations were able to be carried out by the landlord without tenants vacating. This lends credibility to his contention that the landlord’s notices to him (and some other tenants) were retaliatory.
- Part-way, Mr Arbuckle requested the exclusion of lawyers from the hearing given that parties had withdrawn their respective claims which were in excess of $6,000.
- I declined his request to halt legal representation, gave brief
Reasons
why and informed Mr Arbuckle that leave is expressly given to the community lawyer who he brought along to speak for him and participate at the hearing accordingly.
- At 2.41pm Mr Arbuckle submitted the background in relation to the issue about retaliation. Parties were flexible to being able to move around the building/boarding house to facilitate any repairs. The tenant outlined the amicable relationship between parties previously and carried on until 2.44pm where he touched on the landlord’s notices of evictions issued being retaliatory.
- Mr Arbuckle says that he is and was always a good tenant but felt unwanted from March 2023 onwards.
- Mr Arbuckle then described the altercation and disagreement that another tenant Mr Andrew Ross had with the landlord which left Mr Ross in a distressed state
- At 2.50pm, Mr Arbuckle described the incident between Mr Ross and management staff, where later, as “mates”, Mr Arbuckle and Mr Ross were seen in deep conversation.
- Mr Arbuckle attributes this as a likely reason why he has been subsequently stigmatised as someone who is seen to have encouraged Mr Ross to confront management. Mr Arbuckle believes that he has a right to free association and free speech and that his interactions with Mr Ross should not have affected management’s views of him.
- Mr Arbuckle also described the background of the landlord’s proposed renovations being initially limited to one floor only. While inconvenient, Mr Arbuckle states that it was clearly not necessary to relocate tenants away while repairs are carried out.
- At 2.54pm, Mr Arbuckle submitted on the landlord’s and their builder’s retrospective attempts to rewrite their story and pretext to the eviction.
- Contractor Maxima’s letter referred to a purported 3 months’ conversation which was unreliable, according to Mr Arbuckle.
- Mr Arbuckle reiterated that he was stigmatised after being involved with Mr Ross at the material times. Mr Arbuckle completed the first part of his submissions at 2.56pm.
- The landlord’s counsel then responded to Mr Arbuckle’s submission until
- 02pm at which time I briefly summarised the landlord’s response.
- At 3.03pm Mr Arbuckle responded he wanted to critique the landlord’s ASJ report, conceding that other tenants were either unable or unwilling to share the cost of producing an alternative building report which was the basis for the previous adjournment as they were not aware of level of costs for such a report in August 2023.
- While Mr Arbuckle has the means to pay for the report himself (which involves thousands of dollars), if he chose to, he decided against spending the money as he was facing uncertainty and relocation costs and need to pay a bond should he be required to relocate from Rocklands.
- Mr Arbuckle then criticised building reports issued by the landlord’s builders. He maintained that it was not necessary for tenants to move out while proposed works are being carried out.
- Mr Arbuckle also spoke about other options available to Mr Qin to house them elsewhere while works are being carried out.
- Mr Arbuckle submitted until 3.11pm.
- I responded with a summary of my assessment of the evidence to date, latest notice to quit and foreshadowed my findings on the facts before me.
- I did not agree to allow Arbuckle a further adjournment to respond to the landlord’s latest Memorandum.
- I foreshadowed that if I find that the landlord’s notices to be retaliatory, and there appears to be some evidence to suggest this, I will dismiss the landlord’s application for possession of the premises.
- On the other hand, I also foreshadowed that if my ultimate finding is that the landlord’s notice is not retaliatory, I am likely to grant possession to the landlord on 16 November. I briefly set out some reasons for why I may not find the landlord’s notice retaliatory and why I may still grant the boarding house landlord possession of the premises.
- Mr Arbuckle responded that he understood what I said.
- At 3.13pm, Mr Arbuckle’s community lawyer addressed the Tribunal directly to seek a brief adjournment in order to speak with Mr Arbuckle. I granted the adjournment.
- I also encouraged Mr Arbuckle’s community lawyer, Mr Arbuckle and the landlord’s lawyer to discuss a possible settlement of the dispute.
- I adjourned the hearing at 3.15pm. The parties then left the hearing room; I was not privy to the parties’ discussion after that.
- About 50 minutes later, all parties returned at 4.08pm upon which counsel for the landlord states that the parties have come to an agreement of ex-gratia payment to Mr Arbuckle and an order for possession to the landlord on 16 November 2023.
- Mr Arbuckle initially questioned why the money would only be paid on 16 November (“to ensure that I am gone”) before confirming that “I will sign what is in front of me.”
- For the above reasons, I do not accept that Mr Arbuckle was prevented from making full submissions on the case before the Tribunal before he voluntarily and willingly reached an agreement with his lawyer in situ.
- The tenant’s community lawyer was present throughout the hearing and conclusion of the settlement agreement reached on 30 October 2023.
- While Mr Arbuckle did express some initial reluctance to the terms of the agreement, Mr Arbuckle at 4.20pm repeated that “I will sign what is in front of me” which indicated to me that he was fully cognisance of the terms and understood and agreed to the full and final settlement of the claims on these terms: a. The landlord will pay $1,500.00 to the tenant on 16 November 2023 in full and final settlement of the claims filed herein. b. The tenancy will end on 16 November 2023 and vacant possession will return to the landlord on that date.
- I drafted the above consent order while the parties exchanged bank account details for payment of the settlement sum.
- At 4.26pm, on the Tribunal consent order being issued, Mr Arbuckle confirmed that “I accept these terms.”
- I am satisfied that Mr Arbuckle reached that agreement after having voluntarily discussed them with his own lawyer/legal advisor and agreed to those terms. I am satisfied that Mr Arbuckle was not under “duress” as claimed in the rehearing application.
- The recording of the hearing and discussions made in court confirm that Mr Arbuckle and the parties knew the content of what they were discussing.
- Mr Arbuckle appreciated the risk of an unfavourable outcome of the proceedings and ultimately came to the above terms of agreement with the landlord.
- Mr Arbuckle provided no cogent grounds on why those agreed terms of settlement should be overturned and set aside.
- I do not agree that Mr Arbuckle’s ability to cross examine the landlord’s builder who issued the ASJ builder’s report had a material bearing on the outcome of the case. Even if it did, Mr Arbuckle had confirmed and endorsed the above terms of settlement in open court after a period of discussion with his own lawyer, the landlord and their counsel, outside of the hearing.
- It would be inequitable to allow the parties to resile from the terms of a binding order that was reached by consent between the parties after a period of negotiation between themselves.
- I do not consider it to be in the public interest that parties are allowed to renege from agreements reached between themselves and which was duly endorsed by a court or tribunal.
- For those reasons, the tenant’s application for the rehearing fails.
- The consent order reached on 30 October 2023 remains valid and enforceable by the parties.