What was Tenancy Tribunal case 4920273 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4920273?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $13,050.00 awarded to landlord

What type of tenancy dispute was case 4920273?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4920273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11121515-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4920273 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4920273?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $13,050.00 awarded to landlord

What type of tenancy dispute was case 4920273?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4920273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11121515-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4920273 — Rent arrears

Claims and awards in Tenancy Tribunal application 4920273 — net $13,070.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 6 December 2024	$13,050.00	Rent arrears to 6 December 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$13,070.44
Total payable by Tenant to Landlord	$13,070.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The application for rehearing is granted.
The order dated 25 September 2024 is set aside.
The stay of proceedings is lifted.
The tenancy of Danielle Te Aroha Rolleston and Richard Malcolm Browne at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 6.00pm on Friday 6 December 2024.
Danielle Te Aroha Rolleston and Richard Malcolm Browne must pay [The landlord/s] $13,070.44 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing in person and with support people.

REHEARING

The tenants have applied for a rehearing of the Tribunal order dated 25 September 2024 on the basis they could not attend the hearing due to Ms Rolleston’s severe health conditions.
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. See section 105 of the Residential Tenancies Act 1986 (“RTA”).
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.
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’s said they were unable to attend the hearing for health reasons and a lack of transportation. Ms Rolleston provided a medical certificate that confirms she is dealing with serious health issues.
I accept that Ms Rolleston has health, financial and vehicle issues which all contributed to the tenants not attending the hearing. A health professional attended this hearing as a support person for Ms Rolleston which confirms her health issues are serious. The tenants did not apply promptly for a rehearing, but I consider that the tenant’s health issues may have contributed to the delay.
For the reasons set out below I do not consider the tenants have a defence to the application for termination, however the landlord did not oppose a rehearing. I therefore consider the landlord will not suffer irreparable harm if this matter is reheard.
For the reasons set out above, I am satisfied that a miscarriage of justice may have occurred, and a rehearing is granted.

SUBSTANTIVE MATTER

Having determined that a rehearing would be held and referring to my order of 23 October 2024 that if a rehearing is granted the substantive claims of rent arrears and termination would be considered at the hearing so as not to further delay these matters, I heard from the parties on these matters. Termination
The landlord has applied for termination of the tenancy, rent arrears 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) of the RTA.
The termination date was discussed at the hearing and by consent the termination date is to be Friday 6 December 2024.
I confirm that I heard the parties on whether there were grounds to make a conditional termination order and I am not satisfied the tenants could pay rent, let alone the rent arrears, within any specified time and I consider it likely they would incur further arrears, as they have done since these proceedings commenced. Rent arrears
The landlord provided rent records which prove the amount owing as at 21 November 2024 is $49,593.57.00
Section 49 of the RTA provides that where a party to a tenancy agreement breaches any provisions of the agreement or the RTA, the other party shall take all reasonable steps to limit damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
This means that that they must take actions to limit any loss from a breach by the other party. When rent arrears occur, a reasonable landlord will mitigate that loss by applying to the Tenancy Tribunal to have the rent arrears paid, or the tenancy terminated.
Where rent arrears are accumulating, ordinarily, the Tribunal would expect to see an application being brought within around 6-8 weeks, 10 at the most. There is then usually a short period before the hearing can take place.
In Huang v Ashworth [2024] NZDC 15726 the District Court confirmed there is a duty to mitigate for rent arrears. The Court confirmed the test of what the landlord ought to do to mitigate its loss is a factual one and depends on whether the landlord took all reasonable steps to mitigate its loss; and more particularly, whether it acted reasonably having regard to all the circumstances of the case. In Huang v Ashworth the Court reduced the rent arrears by a third to take into account a failure to mitigate loss.
In Ho v Tenant [2024] NZTT 4875311, 27 August 2024, a recent decision in the Tribunal, the adjudicator, in applying Huang v Ashworth capped the rent arrears payable by the tenant to 12 weeks.
At times over the last few years there has been significant periods when rent has not been paid.
The landlord accepts that it did not take any formal steps in relation to the rent arrears, by serving the tenants with a 14-day notice to remedy the rent arrears and did not promptly apply to terminate the tenancy.
The landlord accepts that they have failed to mitigate their loss in respect of the rent arrears and indicated they are willing to reduce their claim to $20,000.00.
Having regard to the landlords’ failure to mitigate its loss I consider that it is appropriate to make an order for rent arrears for the following periods: a. For the period commencing 16 April 2024 (being 10 weeks prior to the application by the landlord for termination) to 11 October 2024 (the date the tenancy terminated under the previous order), and b. For the period commencing 23 October 2024 (being the date a hearing in respect of the application for a rehearing was directed, and a stay of proceedings was granted) until 6 December 2024 being the termination date.
I make an order for rent arrears for these dates for $13,050.00. Bond
The landlord’s evidence is that they never received the bond into their bank account. There is no record of a bond being lodged for this tenancy. The landlord withdrew the claim for the bond and accordingly I dismiss this application. Filing fee
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee of $20.44. Suppression
The landlord sought suppression and as the application for termination is successful, I have made an order accordingly.
The tenants did not seek name suppression. See section 95A of the RTA.

Claims and awards in Tenancy Tribunal application 4920273 — net $13,070.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 6 December 2024	$13,050.00	Rent arrears to 6 December 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$13,070.44
Total payable by Tenant to Landlord	$13,070.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The application for rehearing is granted.
The order dated 25 September 2024 is set aside.
The stay of proceedings is lifted.
The tenancy of Danielle Te Aroha Rolleston and Richard Malcolm Browne at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 6.00pm on Friday 6 December 2024.
Danielle Te Aroha Rolleston and Richard Malcolm Browne must pay [The landlord/s] $13,070.44 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing in person and with support people.

REHEARING

The tenants have applied for a rehearing of the Tribunal order dated 25 September 2024 on the basis they could not attend the hearing due to Ms Rolleston’s severe health conditions.
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. See section 105 of the Residential Tenancies Act 1986 (“RTA”).
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.
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’s said they were unable to attend the hearing for health reasons and a lack of transportation. Ms Rolleston provided a medical certificate that confirms she is dealing with serious health issues.
I accept that Ms Rolleston has health, financial and vehicle issues which all contributed to the tenants not attending the hearing. A health professional attended this hearing as a support person for Ms Rolleston which confirms her health issues are serious. The tenants did not apply promptly for a rehearing, but I consider that the tenant’s health issues may have contributed to the delay.
For the reasons set out below I do not consider the tenants have a defence to the application for termination, however the landlord did not oppose a rehearing. I therefore consider the landlord will not suffer irreparable harm if this matter is reheard.
For the reasons set out above, I am satisfied that a miscarriage of justice may have occurred, and a rehearing is granted.

SUBSTANTIVE MATTER

Having determined that a rehearing would be held and referring to my order of 23 October 2024 that if a rehearing is granted the substantive claims of rent arrears and termination would be considered at the hearing so as not to further delay these matters, I heard from the parties on these matters. Termination
The landlord has applied for termination of the tenancy, rent arrears 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) of the RTA.
The termination date was discussed at the hearing and by consent the termination date is to be Friday 6 December 2024.
I confirm that I heard the parties on whether there were grounds to make a conditional termination order and I am not satisfied the tenants could pay rent, let alone the rent arrears, within any specified time and I consider it likely they would incur further arrears, as they have done since these proceedings commenced. Rent arrears
The landlord provided rent records which prove the amount owing as at 21 November 2024 is $49,593.57.00
Section 49 of the RTA provides that where a party to a tenancy agreement breaches any provisions of the agreement or the RTA, the other party shall take all reasonable steps to limit damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
This means that that they must take actions to limit any loss from a breach by the other party. When rent arrears occur, a reasonable landlord will mitigate that loss by applying to the Tenancy Tribunal to have the rent arrears paid, or the tenancy terminated.
Where rent arrears are accumulating, ordinarily, the Tribunal would expect to see an application being brought within around 6-8 weeks, 10 at the most. There is then usually a short period before the hearing can take place.
In Huang v Ashworth [2024] NZDC 15726 the District Court confirmed there is a duty to mitigate for rent arrears. The Court confirmed the test of what the landlord ought to do to mitigate its loss is a factual one and depends on whether the landlord took all reasonable steps to mitigate its loss; and more particularly, whether it acted reasonably having regard to all the circumstances of the case. In Huang v Ashworth the Court reduced the rent arrears by a third to take into account a failure to mitigate loss.
In Ho v Tenant [2024] NZTT 4875311, 27 August 2024, a recent decision in the Tribunal, the adjudicator, in applying Huang v Ashworth capped the rent arrears payable by the tenant to 12 weeks.
At times over the last few years there has been significant periods when rent has not been paid.
The landlord accepts that it did not take any formal steps in relation to the rent arrears, by serving the tenants with a 14-day notice to remedy the rent arrears and did not promptly apply to terminate the tenancy.
The landlord accepts that they have failed to mitigate their loss in respect of the rent arrears and indicated they are willing to reduce their claim to $20,000.00.
Having regard to the landlords’ failure to mitigate its loss I consider that it is appropriate to make an order for rent arrears for the following periods: a. For the period commencing 16 April 2024 (being 10 weeks prior to the application by the landlord for termination) to 11 October 2024 (the date the tenancy terminated under the previous order), and b. For the period commencing 23 October 2024 (being the date a hearing in respect of the application for a rehearing was directed, and a stay of proceedings was granted) until 6 December 2024 being the termination date.
I make an order for rent arrears for these dates for $13,050.00. Bond
The landlord’s evidence is that they never received the bond into their bank account. There is no record of a bond being lodged for this tenancy. The landlord withdrew the claim for the bond and accordingly I dismiss this application. Filing fee
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee of $20.44. Suppression
The landlord sought suppression and as the application for termination is successful, I have made an order accordingly.
The tenants did not seek name suppression. See section 95A of the RTA.

Tenancy Tribunal case 4920273 — Rent arrears

At a glance

Tenancy Tribunal case 4920273 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

REHEARING

SUBSTANTIVE MATTER

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

REHEARING

SUBSTANTIVE MATTER

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions