Published tribunal order
Tenancy Tribunal case 4852600 — Rent arrears at Unit/Flat Flat 6, 382 Tremaine Avenue, Takaro, Palmerston
Decided 12 Jul 2024 · Published 12 Jul 2024 · Application 4852600
Landlord favoured
- Rent arrears
Order
- The application for rehearing is granted.
- The tenancy of Isacc James Wilson at Unit/Flat Flat 6, 382 Tremaine Avenue, Takaro, Palmerston North 4412 is terminated, and possession is granted to 100 Percent Rentals Limited, at 6pm on 16 July 2024.
- Isacc James Wilson must pay 100 Percent Rentals Limited $1,810.44 immediately, calculated as shown in the table below:
- The bond has been released to the landlord; I therefore make no further Order in respect to the bond.
Reasons
- Both parties attended the hearing by telephone.
REHEARING
- The tenant has applied for a rehearing of the Tribunal order dated 20 June 2024. Rehearing’s to be heard by same adjudicator.
- It is the usual practice of the Tenancy Tribunal that the application for rehearing is normally considered by the original adjudicator, being the adjudicator who made the decision which is sought to be reheard. I note that approach has been supported by the District Court. In the decision of Goston v Jamieson, the District Court confirmed that: It is nothing extraordinary (indeed it is perfectly ordinary) for an adjudicator or Judge to hear a rehearing application in respect of a decision he or she has earlier given... it would be a mistake for a disappointed party to conclude that because a decision gives precedence to the points made by, and the evidence of, the successful party, their own points of evidence have been ignored. Any adjudicator or Judge must make decisions as to what is persuasively relevant. It is a virtual inevitability that the content of his or her decision or judgement will show emphasis accordingly.
- Similarly in the District Court decision of Dennis Fetherston & Anna Fetherston v Yunji Lee, (DC North Shore, CIV-2012-044-001127, 7 May 2013), the Court observed that: Adjudicator who hears the case initially, entitled to hear any rehearing application. It would be “normal practice” for an adjudicator to do so. Grounds for rehearing
- Section 105 of the Residential Tenancies Act 1986 relates to rehearing. 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: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearing’s are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made. Failure to appear at original hearing
- It is well established (see Russell v Cox [1983] NZLR 654) that where a party fails to appear the following factors ought to be considered when determining whether or not to set a decision aside and rehear the matter: a. Was the party's failure to appear excusable? b. When the party became aware of the decision entered against him, did he move promptly to set it aside? c. Is there a defence which ought to be heard? d. Will the other party suffer irreparable harm if the decision is set aside? Analysis
- When a party fails to attend a scheduled hearing, the need for swift and efficient justice requires that the hearing should proceed as otherwise the party who does attend is put to unnecessary inconvenience.
- The tenant says he did not receive the original notice of hearing by post until after the hearing, that he did not have data or a mobile phone to attend the hearing and he has health issues and memory issues, which contributed to his non-attendance at the hearing. The tenant said he received the Order of 20 June 2024 by post.
- The landlord challenged the tenant’ s evidence. The landlord insisted the tenant would have received the initial hearing notice by email as he must have received the Order of 20 June 2024 by email to file his application for a rehearing by 21 June 2024. The landlord gave evidence that she had reminded the tenant of the original hearing.
- I consider the tenant was properly served and accept the landlord’s evidence that the tenant was aware of the hearing.
- However, factors that I consider relevant are: a. The tenant has personal health issues which would make attending a phone hearing and communicating with the Tribunal challenging. b. The tenant did not have access to his phone at the time of the hearing but promptly provided a new phone number for this hearing. c. The tenant promptly applied for a rehearing. d. The landlord will not suffer irreparable harm if this matter is reheard. e. The effect of termination on the tenant will be significant.
- Had the hearing been in person and the tenant in this case failed to appear I do not consider there would have been grounds for a rehearing.
- For the reasons set out above, I am satisfied that a miscarriage of justice may have occurred, and a rehearing is granted. See section 105 Residential Tenancies Act 1986. SUBSTANTIVE MATTER – TERMINATION AND RENT ARREARS
- Having determined that a rehearing would be held and referring to my order of 20 June 2024 that if a rehearing is granted the substantive issue of rent arrears and termination would be considered afresh at the hearing so as not to further delay these matters, I heard from the parties on these matters.
- The landlord has applied for termination of the tenancy, rent arrears and refund of the bond and reimbursement of the filing fee.
- Rent was at least 21 days in arrears on the date the application was filed. The tenancy is terminated. See section 55(1)(a) Residential Tenancies Act 1986.
- The landlord provided rent records which prove the amount owing as at 10 July 2024 is $2,450.00.
- The tenancy is to terminate on Tuesday 16 July 2024, and I have made an order for rent payable to this date.
- I heard from both parties as to whether a conditional order was appropriate. I could not be satisfied that the tenant will pay the rent arrears (the tenant had missed the most recent rent payment) and I consider the tenant would likely miss further rent payments. Filing fee
- Because the landlord has wholly or substantially succeeded with the claim I must reimburse the filing fee. Suppression
- Neither the landlord nor the tenant sought a suppression order.