What was Tenancy Tribunal case 4613810 about?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 4613810?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4613810?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4613810?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10286644-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4613810 about?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 4613810?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4613810?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4613810?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10286644-Tribunal_Order_Redacted.pdf.

55. ormanby Road, Karaka, RD 1, Papakura 2580 Tenancy Tribunal Case 4613810 — Rent arrears

Order

The application for rehearing is dismissed.
The name of the landlord is suppressed.

Reasons

Both parties attended the hearing on the 22 April 2024 to consider the rehearing application filed by the tenant. [The landlord/s] attended in person and Mr Perese by telephone due to ill health.
After the hearing, I listened to the recording of the hearing on the 9 November 2023. Procedural History.
I set out the background of these proceedings because they are relevant to the current application.
The landlord applied for termination and rent arrears award on the 23 June 2023, at the date of the application the landlord claimed that the tenant was $6125.00 in arrears. The matter was set down to be heard on the 2 August 2023, on that date the tenant’s daughter informed the Tribunal that the tenant was very unwell and sought and adjournment. An adjournment was granted. Had the application been heard that day then the rent arrears ledger filed by the landlord showed the rent arrears as $8,439.69 as at 4 August.
The matter was not able to be rescheduled until the 9 November 2023. On the 8 November 2023, Ms Hart using her father’s (the tenant) email address emailed the Tribunal seeking an adjournment again due to her father’s ill health. In that email she stated: The rent arrears have been cleared and the rent is now in advance through to December. My family trust has almost sealed a deal to purchase the property as well, and this may conclude today or tomorrow. (Own emphasis added)
I asked the Registry to refer the tenant’s request to the landlord. The landlord strongly opposed the adjournment on the basis that the rent arrears were then over $15,0000.
I declined the tenant’s request for adjournment saying: The request for the adjournment is declined. The hearing will proceed tomorrow. The tenant can attend by telephone if he wishes- he will need to provide a contact number, or he can send a representative to attend on his behalf.
The Tribunal received a response at 10.52am from the tenant’s email address that said: “The contact number is xxxx.Cori Perese has the phone. Viliamu Perese is currently being assessed and waiting for assessment by doctors in the present time and is unable to speak, but Cori will do what he is able.” And also in another email: “My brother Cori Perese will hopefully be with my Dad (or nearby) soon who is ill. Dads phone number is xxxxx Please note an objection to the adjournment decision. Please also note attached confirmations of funds transfers to the property manager (which puts rent in advance to end of dec 2023), and also a copy of the confirmed sale and purchase contract that has now been entered into as previously advised.”
At the allocated hearing time on the 9 November 2023 [The landlord/s] attended in person. I rang the number provided in the tenant’s email and the person identified themselves as Cori Perese. I asked if he had authority to speak for his father and he said he was not sure. 1
During the hearing it was clear that Cori Perese, knew a lot about the situation, he told me that there was an agreement for sale and purchase for the property 1 The landlord told me at the hearing that he believed that the person on the phone was not Mr Cori Perese but was Mr Viliamu Perese himself. and he knew the status of the agreement, he also told me in detail about payments that had been made for the rent which were ‘embargoed’ due to banking issues.
At the end of the hearing, and in reliance of what Ms Hart and Mr Perese had told me I made a conditional termination order, allowing the rent to be paid in full by the 14 November. If the rent was not paid in full on that date, then the tenancy would terminate.
The tenant made an application for rehearing on the 13 November and requested a stay pf proceeding.
I declined the stay of proceedings 2 but set the application for rehearing down for a hearing.
The hearing to consider the application for rehearing was adjourned on 8 February again due to the tenant’s ill health.
On the 21 April 2023 the tenant advised that he was still unwell but wished to be heard on the telephone. I allowed him to be heard by telephone. The grounds for rehearing.
The tenant has made detailed submissions on why a rehearing should be granted. These can be summarised as: a) That my decision not to grant the adjournment on the 9 November 2023 because of the tenant’s ill health deprived the tenant of his right to be heard. b) That Cori Perese did not have authority to represent his father at the hearing. c) That the tenant had a valid cross application that if that had been heard at the same time would have extinguished the rent arrears. The law
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”.
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. 3 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.
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: 2 Paragraph 7 decision of 17 November 2023. 3 Yogeswaran v Doubletree Properties Ltd [2021] NZDC 15704 [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.
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. In Jemma Trust v Rutherford (DC North Shore, CIV-2009-044-2056, 11 December 1999), the District Court quoted an extract from the Court of Appeal outlining the relevant considerations: The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite party is on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial....While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC. In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
The High Court has confirmed that it is not a miscarriage of justice to decline rehearing just because evidence was not considered at original hearing, when that evidence could have been produced at original hearing. 4

Has a substantial wrong or miscarriage of justice occurred?

Tenant’s submissions.

The tenant has submitted in his submissions of 19 April 2024. 5 I was only asking for a week or 2 to get my health in order so I could attend and defend my position and push costs I was seeking from the Landlord. I was prevented in doing so and now must address this rehearing issue first. (20) The Hearing on 9 November 2023 was manifestly unjust and unfair. If a decision is going to affect the rights and benefits of an individual such as me, then the Tribunals, which includes the Court11 Confirmed in A Bill of Rights for New Zealand: A White Paper (New Zealand. Parliament. House of Representatives. 1985. AJHR. A6), para 10.171 , are required to uphold the principles of Natural Justice. The legal obligation to observe these rules is set out in New Zealand Bill of Rights Act 1990, s27 (1), which states: “Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.” (21) There are two key principles of Natural Justice2 2 Furnell v Whangarei High Schools Board [1973] AC 660 Decisions must be made by an unbiased and disinterested decision maker – this is the rule against Bias; and A Fair Procedure requires the hearing of ‘both sides’ (not just one), including that the parties are allowed to argue their own case (and provide relevant admissible evidence)3 3 Ridge v Baldwin [1964] AC 40; [1963] 2 A11 ER 66 (HL) and hear the case against them (including the opportunity to challenge the evidence offered against them)4 4 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) (22) In the Tribunal Hearing of 9 November 2023, I had all my rights in this regard breached. The Tribunal could have adjourned for the short period sought, but did not. It should have been obvious before the 9 November 2023 Hearing, that my desire to attend and defend was unquestionable. 4 Angelo v Lehr [2022] NZHC 3033 5 I have copied the tenant’s full submissions in here, so there is no submission lost in summation. (23) The conduct of the hearing is always subject to compliance with the relevant statutory provisions, applicable court rules and the general requirements of Natural Justice5 5 Confirmed by Court of Appeal in Minister of Foreign Affairs v Benipal outlined. The primary rules for conduct of hearings are: The Decider must afford the parties a proper opportunity to be heard, and the parties must be allowed to adduce relevant admissible evidence and challenge the evidence of the other side6 6 Minister of Foreign Affairs v Benipal [1984] 1 NZLR 758 ; and The Decider must not intervene in the proceeding to an extent that might indicate bias7 7 EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146; (1987) 3 CRNZ 38 (CA); R v Taito [2001] UKPC 15, [2003] 3 NZLR 577, (2002) 19 CRNZ 224 (PC) and R v Smith [2003] 3 NZLR 617, (2002) 20 CRNZ 124 (CA) ; and The Decider may not have regard to material that has been withheld from any of the parties to the proceeding8 8 Minister of Foreign Affairs v Benipal [1984] 1 NZLR 758 (CA) ; and The Decider may not conduct experiments or make observations in the absence of the parties and without their knowledge9 9 Fever v Booker [1921] NZLR 499, [1921] GLR 188 . (24) In Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA)10 10 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) , the Court of Appeal established that Natural Justice requires that you have the right to hear the case against you. The court established the following in this respect: A party that has legal authority to make a decision affecting the rights of individuals is required to observe the principles of Natural Justice. Natural Justice requires informing the individual of the nature of the case against them and giving a reasonable opportunity of answering this case. The individual should have had a fair opportunity of responding to and correcting, any information provided by the other party that may be prejudicial to his/her position. (25) Also in Minister of Foreign Affairs v Benipal [1984] 1 NZLR 75811 11 Minister of Foreign Affairs v Benipal [1984] 1 NZLR 758 , the Court of Appeal upheld the principle that Natural Justice requires Judge (Decider) to afford both parties a proper opportunity to be heard. (26) Insofar as Bias is concerned, the Law applies as follows (to which this Tribunal is bound), to the Bias that is mentioned herein. The perception of Bias (whether actual or only perceived) can be due to a certain set of circumstances, that may lead the Public to question the impartiality of Justice. It less relevant whether or not there is any Bias in the mind of the Judge (Decider), but moreover; only whether the facts as perceived by the Public may suggest that there is. Established (and mentioned earlier Supra) in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259 12 12 R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259 ; "it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" Therefore if a Judge (Decider) does not appear to bring an impartial mind to adjudicating a dispute, litigants may seek to have the Judge (Decider) recused, or a Judge (Decider) may recuse themselves if they acknowledge that their impartiality may be, or may ‘Appear To Be’, compromised. (27) The Authority is Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No. 2) [2009] NZSC 122, [2010] 1 NZLR 76 (SC)13 13 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No. 2) [2009] NZSC 122,[2010] 1NZLR76 (SC) that states “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (28) This is a 2-stage test, where (a) What are the actual circumstances which have a direct bearing on a suggestion that the Judge was or ‘May be Seen’(“Perceived”) to be Biased 14 (Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495) - which requires a factual inquiry rigorous enough to avoid frivolous or unsubstantiated claims of Bias; and (b) Would the “fair minded observer” think on the basis of these facts that the Judge might not be impartial.15 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No. 2) [2009] NZSC 122, [2010] 1 NZLR 76 This is resolved somewhat by:- A Fair minded observer being a "non-lawyer but reasonably informed about the workings of our [New Zealand] judicial system"; and "neither unduly sensitive or suspicious nor complacent about what may influence the judge's decision". the identification of what it is said might lead a Judge to decide a case other than on its legal and factual merits; and there must be “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”. having an interest, including a pecuniary and non-pecuniary interest, in a person or entity that is also interested in the case; (followed in Saxmere) engaging in conduct that leads to an apprehension of Bias, either in the course of, or outside the proceedings; being associated, either directly or indirectly, with a person or persons interested in the proceedings; and obtaining extraneous information, namely prejudicial knowledge that may give rise to an apprehension of Bias. The Threshold is for “a ‘real likelihood or danger’ of Bias 16 16 Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) ; Although more recently in Australia, this has been softened to: require a “possibility (real and not remote), not a probability” 17 17 High Court of Australia in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337) (29) The test has much more recently been clarified by the High Court Rongotai Investments Ltd v Land Valuation Tribunal [2022] NZHC 166918 18 Rongotai Investments Ltd v Land Valuation Tribunal [2022] NZHC 1669 as requiring a two-step analysis: (30) There are four distinct categories of Judicial interests that the Courts accept may give rise to apparent Bias (High Court of Australia in Webb v R (1994) 181 CLR 4119 19 High Court of Australia in Webb v R (1994) 181 CLR 41 ): (31) I say that the Bias in this case strongly resembles engaging in conduct that leads to an apprehension of Bias, in the course the proceedings, and the Decision, and encompasses all the Bias argument above. The overall crux is that Bias is not an argument to be lightly examined, but also one not to be unfairly dismissed simply because the Courts find a level of dis-ease with making such findings regarding a Decider Colleague. It is a difficult task, but one the interests of Justice require. It is the highly unusual situations outlined, that lead to one undeniable conclusion, that the Adjudicator displayed Bias (even if unintentional). (32) I now seek that the Tenancy Tribunal grant me a Rehearing. If one is not granted then I will continue with the Appeal in the Court that is already filed. I will be legally represented in the District Court by a Lawyer. It simply cannot be fair or just that a Hearing proceeds without a party as in my circumstances. (33) My son was placed in a hugely difficult position by the Tribunal Adjudicator and this situation has to be corrected. (34) I will also be seeking from the Tribunal via Cross-Claim. Decision.
Having considered the evidence and the submissions by both parties I am not satisfied that there would be a substantial wrong or miscarriage of justice if I did not allow the rehearing because: a) Mr Perese was given a reasonable opportunity to attend the hearing on the 9 November 2023, he was given notice of the hearing and on the 8 November, he was permitted to attend phone or appointing a representative. A message was sent from Mr Perese’s email on the day of the hearing that the Tribunal should contact Mr Cori Perese who would attend the hearing, and a phone number was provided. b) Mr Perese was heard through his son and daughter who either attended or gave evidence on his behalf. Mr Cori Perese was knowledgeable about the proceedings, the rent arrears, the agreement for sale and purchase and the reasons why the rent may not have been received in the landlord’s bank account. c) Ms Hart had also contacted the Tribunal by email, and having used her father’s email address to correspond it was reasonable to infer that she had authority to represent her father and was giving evidence in support of her father. d) Ms Hart’s statement on the 8 November that “The rent arrears have been cleared and the rent is now in advance through to December” and the confirmation that payments had been made on the 9 November was clearly false. Ms Hart provided screen shots that of payments she claimed had been made towards the rent that show the payment as confirmed at 9 November 2023, they must also be false. The rent arrears were not paid and continue to be outstanding. It was in reliance of the evidence given by Mr Cori Perese on the phone on the 9 November that there may have been problems with the payment going through, that I made a conditional order. Those statements alone show that tenant was heard at the hearing and the benefit of the doubt was given to him. I now consider those statements to be false and regard much of the evidence given by both Ms Hart and Mr Cori Perese to not be credible. e) The Tribunal must balance the rights of both parties when determining whether to grant an adjournment. Section 85 of the RTA provides: i. the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. ii. The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. f)The landlord had waited from June to November to have the matter heard. The tenant did not file a counterclaim within this time. The tenant was well aware of the proceedings and been afforded an adjournment of the matter in August. g) Whilst the Tribunal is sympathetic to a party’s ill health, this must be balanced with the Applicant’s right to be heard. The Tribunal gave Mr Perese an opportunity to be represented and heard at the hearing, and his son and daughter represented him at the hearing. Mr Perese’s condition was as part of a chronic condition, he could have made arrangements to put in place other representation before the hearing, such as making submissions in writing, or appointing a representative. h) There is no new evidence that has been supplied that was relevant to the landlord’s claim for termination or rent arrears owing. The tenants claim for damages for landlord’s breaches of the RTA can be heard separately without any prejudice to the tenant. i)The tenant had from June to November to file a counterclaim and did not do so. 6 j)There is no new evidence that supports the tenants’ claim that rent arrears were not due and owing as per the Tribunal’s order.
The application for rehearing is dismissed.
The tenant has filed lodged documents for a failure to maintain under this application number. The tenant needs to file a new application and pay the filing fee for these claims to be considered.
As the landlord has been successful in their claim I suppress their name.

Tenancy Tribunal case 4613810 — Rent arrears at 55. ormanby Road, Karaka, RD 1, Papakura 2580

At a glance

Tenancy Tribunal case 4613810 — Rent arrears at 55. ormanby Road, Karaka, RD 1, Papakura 2580

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions