What was the outcome of Tenancy Tribunal case 4683109?

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

How much money was awarded in case 4683109?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4683109?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 4683109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9732669-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4683109?

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

How much money was awarded in case 4683109?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4683109?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 4683109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9732669-Tribunal_Order.pdf.

84A Salamanca Road, Kelburn, Wellington 6012 Tenancy Tribunal Case 4683109 — Rent arrears

Order

The application for rehearing is dismissed.
The stay on proceedings is removed at midday, Wednesday 13 December 2023.

Reasons

Both parties attended the hearing.
On 10 November 2023 the Tribunal made an order for immediate termination, rent arrears and possession to return to the landlord. The bond was released to the landlord.
On 13 November 2023, Vivek Kedia applied for a rehearing on the grounds that proper consideration of his medical certificate regarding his inability to move was not given and that there was no consideration of a prior tribunal order, TT4653510 and the content within. Lastly, he believed the order should have been made conditional.
A hearing to consider the rehearing application was held via teleconference on 7 December 2023. Both parties were present. Mr Praveer left the tenancy after the first order, returning the keys. Mr Kedia remains at the premises. The conditional stay (requiring weekly rent to be paid as due) remains in place.
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?

For the following reasons Mr Kedia has failed to establish the grounds for a rehearing. Medical grounds
On 13 November 2023, Vivek Kedia applied for a rehearing on the grounds that proper consideration of his medical certificate regarding his inability to move was not given.
I believe the refence is to a doctor’s certificate dated 8 October 2023, submitted approximately a month prior to the hearing. It stated:
No other medical details were provided prior to or at the hearing on 10 November 2023 (more than one month after the certificate date).
Before this hearing of the rehearing application a further doctor’s certificate was provided, dated 4 December 2023. It stated:
The reason for the late submission was explained through a message from the medical centre, explaining:
I note the lapsed time of at least 11 days from any request to see the doctor before the actual appointment. In the absence of actual medical evidence of his “parlous health” and the serious consequences if the tenancy was to end, the lapsed time to see his doctor is curious. There is nothing “fresh” in the second medical certificate.
The medical certificate of 8 October 2023 was seen and considered at the 10 November 2023 hearing.
The hearing considered a landlord application for termination per s 55(1)(a) Residential Tenancies Act 1986. That section requires that where the rent was, at the date on which the application was filed, at least 21 days in arrear, the Tribunal shall make an order terminating the tenancy.
Possible alternatives to a termination order are provided for in the RTA.
The first, Section 55(1A) states: Notwithstanding section 78(3), the Tribunal may, instead of making a final termination order for the non-payment of rent under subsection (1)(a), make a conditional order if, but only if, it is satisfied that— (a) the tenant will pay any rent in arrear within a period specified by the Tribunal; and (b) it is unlikely that the tenant will commit any further breach of a kind to which any of paragraphs (a), (b), and (c) of subsection (1) applies.
The possible use of a conditional order was considered and submissions from both parties received and considered. The landlord did not want a conditional order. After these submissions and consideration, I concluded a conditional order was inappropriate. I reached this conclusion based on the prior exit of another tenant and demonstrable financial stress evident in the rent summary. I could not consider it likely the tenant would pay rent as due in the future and the two other claims pending would be unlikely to alter the rent arrears in a full or timely manner.
I note that since the 10 November 2023 hearing rent has been paid and the conditional stay maintained. There has also been some rent arrears paid but there was still a significant amount outstanding when the rehearing consideration took place. The landlord reaffirmed her concerns about the owner’s exposure over the summer holiday period if this tenancy continued, especially as the bond has now been applied against the rent arrears and is no longer available as security. Mr Kedia stated he is in the process of getting a flatmate in who will help with the rent. Mr Praveer has exited.
A second ground to refuse to make a termination order is available through s 55(2). It states the Tribunal may refuse to make an order under subsection (1) if, but only if, it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies. The breach was not remedied, and this remains the case. I did not consider grounds under s 55(2) to refuse a termination order as sought existed.
Given the termination provision of s 55(1), and neither ss 55(1A) or 55(2) applying exemptions in this instance, I also considered any application of s 85 regarding the certified medical impact if the tenancy was to end, as well as the general circumstances regarding what is a confused tenancy history.
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
In Ziki Investments (Properties) Ltd v McDonald (HC Auckland CIV2008-404- 0038, 23 July 2008), the High Court made it clear that section 85 does not give the Tribunal a carte blanche to decide cases simply on its perception of merits and justice, regard must always be had to the general principles of law. Section 85 can however be used as an aid to interpretation – the general principles of law should be interpreted or applied consistently with the merits and justice of the case where possible.
I considered the limited evidence, being the medical certificate as presented, did not establish sufficient grounds to alter any termination, once established as a consequence per s 55(1)(a) RTA. I was also mindful of the clear direction in Ziki on how the Tribunal must apply the provisions of this section. Previous Tribunal Order
Mr Kedia believed there was no consideration of a prior tribunal order, TT4653510.
That order, dated 25 September 2023, dismissed the application of Mr Kedia made against another tenant, Mr Dunn, due to a lack of jurisdiction (the dispute was between the two tenants). The adjudicator noted at [6] that the Tribunal does not have jurisdiction to hear this dispute and at [7] the Tenant may raise this issue in subsequent proceedings brought by the Landlord.
I was aware of this order and also the two further applications regarding this tenancy that are pending a hearing with another adjudicator. An initial case conference is scheduled for those matters shortly and it appears likely any substantive hearing will not be until next year.
The comment of the previous adjudicator at [7] is noted but I do not read into that anything other than him stating the obvious within the context of the dismissal for lack of jurisdiction as the dispute was between two tenants. It seems to be an unfortunate situation, but I failed to see how that should prevent the landlord successfully obtaining the termination order as sought given the rent arrears totalled $7,670.00 as at the date of the 10 November 2023 hearing.
For the above reasons I do not find the grounds for a rehearing have been established and the application for a rehearing is dismissed. The stay on proceedings is removed from midday, Thursday 14 December 2023.

Order

The application for rehearing is dismissed.
The stay on proceedings is removed at midday, Wednesday 13 December 2023.

Reasons

Both parties attended the hearing.
On 10 November 2023 the Tribunal made an order for immediate termination, rent arrears and possession to return to the landlord. The bond was released to the landlord.
On 13 November 2023, Vivek Kedia applied for a rehearing on the grounds that proper consideration of his medical certificate regarding his inability to move was not given and that there was no consideration of a prior tribunal order, TT4653510 and the content within. Lastly, he believed the order should have been made conditional.
A hearing to consider the rehearing application was held via teleconference on 7 December 2023. Both parties were present. Mr Praveer left the tenancy after the first order, returning the keys. Mr Kedia remains at the premises. The conditional stay (requiring weekly rent to be paid as due) remains in place.
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?

For the following reasons Mr Kedia has failed to establish the grounds for a rehearing. Medical grounds
On 13 November 2023, Vivek Kedia applied for a rehearing on the grounds that proper consideration of his medical certificate regarding his inability to move was not given.
I believe the refence is to a doctor’s certificate dated 8 October 2023, submitted approximately a month prior to the hearing. It stated:
No other medical details were provided prior to or at the hearing on 10 November 2023 (more than one month after the certificate date).
Before this hearing of the rehearing application a further doctor’s certificate was provided, dated 4 December 2023. It stated:
The reason for the late submission was explained through a message from the medical centre, explaining:
I note the lapsed time of at least 11 days from any request to see the doctor before the actual appointment. In the absence of actual medical evidence of his “parlous health” and the serious consequences if the tenancy was to end, the lapsed time to see his doctor is curious. There is nothing “fresh” in the second medical certificate.
The medical certificate of 8 October 2023 was seen and considered at the 10 November 2023 hearing.
The hearing considered a landlord application for termination per s 55(1)(a) Residential Tenancies Act 1986. That section requires that where the rent was, at the date on which the application was filed, at least 21 days in arrear, the Tribunal shall make an order terminating the tenancy.
Possible alternatives to a termination order are provided for in the RTA.
The first, Section 55(1A) states: Notwithstanding section 78(3), the Tribunal may, instead of making a final termination order for the non-payment of rent under subsection (1)(a), make a conditional order if, but only if, it is satisfied that— (a) the tenant will pay any rent in arrear within a period specified by the Tribunal; and (b) it is unlikely that the tenant will commit any further breach of a kind to which any of paragraphs (a), (b), and (c) of subsection (1) applies.
The possible use of a conditional order was considered and submissions from both parties received and considered. The landlord did not want a conditional order. After these submissions and consideration, I concluded a conditional order was inappropriate. I reached this conclusion based on the prior exit of another tenant and demonstrable financial stress evident in the rent summary. I could not consider it likely the tenant would pay rent as due in the future and the two other claims pending would be unlikely to alter the rent arrears in a full or timely manner.
I note that since the 10 November 2023 hearing rent has been paid and the conditional stay maintained. There has also been some rent arrears paid but there was still a significant amount outstanding when the rehearing consideration took place. The landlord reaffirmed her concerns about the owner’s exposure over the summer holiday period if this tenancy continued, especially as the bond has now been applied against the rent arrears and is no longer available as security. Mr Kedia stated he is in the process of getting a flatmate in who will help with the rent. Mr Praveer has exited.
A second ground to refuse to make a termination order is available through s 55(2). It states the Tribunal may refuse to make an order under subsection (1) if, but only if, it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies. The breach was not remedied, and this remains the case. I did not consider grounds under s 55(2) to refuse a termination order as sought existed.
Given the termination provision of s 55(1), and neither ss 55(1A) or 55(2) applying exemptions in this instance, I also considered any application of s 85 regarding the certified medical impact if the tenancy was to end, as well as the general circumstances regarding what is a confused tenancy history.
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
In Ziki Investments (Properties) Ltd v McDonald (HC Auckland CIV2008-404- 0038, 23 July 2008), the High Court made it clear that section 85 does not give the Tribunal a carte blanche to decide cases simply on its perception of merits and justice, regard must always be had to the general principles of law. Section 85 can however be used as an aid to interpretation – the general principles of law should be interpreted or applied consistently with the merits and justice of the case where possible.
I considered the limited evidence, being the medical certificate as presented, did not establish sufficient grounds to alter any termination, once established as a consequence per s 55(1)(a) RTA. I was also mindful of the clear direction in Ziki on how the Tribunal must apply the provisions of this section. Previous Tribunal Order
Mr Kedia believed there was no consideration of a prior tribunal order, TT4653510.
That order, dated 25 September 2023, dismissed the application of Mr Kedia made against another tenant, Mr Dunn, due to a lack of jurisdiction (the dispute was between the two tenants). The adjudicator noted at [6] that the Tribunal does not have jurisdiction to hear this dispute and at [7] the Tenant may raise this issue in subsequent proceedings brought by the Landlord.
I was aware of this order and also the two further applications regarding this tenancy that are pending a hearing with another adjudicator. An initial case conference is scheduled for those matters shortly and it appears likely any substantive hearing will not be until next year.
The comment of the previous adjudicator at [7] is noted but I do not read into that anything other than him stating the obvious within the context of the dismissal for lack of jurisdiction as the dispute was between two tenants. It seems to be an unfortunate situation, but I failed to see how that should prevent the landlord successfully obtaining the termination order as sought given the rent arrears totalled $7,670.00 as at the date of the 10 November 2023 hearing.
For the above reasons I do not find the grounds for a rehearing have been established and the application for a rehearing is dismissed. The stay on proceedings is removed from midday, Thursday 14 December 2023.

Tenancy Tribunal case 4683109 — Rent arrears at 84A Salamanca Road, Kelburn, Wellington 6012

At a glance

Tenancy Tribunal case 4683109 — Rent arrears at 84A Salamanca Road, Kelburn, Wellington 6012

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions