What was the outcome of Tenancy Tribunal case 5054068?

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

How much money was awarded in case 5054068?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5054068?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair.

Where can I read the official tribunal order for case 5054068?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11306629-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5054068?

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

How much money was awarded in case 5054068?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5054068?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair.

Where can I read the official tribunal order for case 5054068?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11306629-Tenancy_Tribunal_Order.pdf.

10 Brown Grove, Porirua East, Porirua 5024 Tenancy Tribunal Case 5054068 — Rent arrears

Order

The application for a rehearing is dismissed.
The tenancy of Benjamin Stuart Booth at 10 Brown Grove, Porirua East, Porirua 5024 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, at 11:59pm on 9 February 2025.
Benjamin Stuart Booth must pay Kāinga Ora–Homes And Communities $1,728.58 immediately being rent arrears to 10 December 2024.

Reasons

Both parties attended the hearing which was set to determine Mr Booth’s application for a rehearing of the Tribunal’s decision on 6 December to terminate his tenancy (the decision).
The landlord’s application to terminate was brought pursuant to section 55(1)(a) of the Residential Tenancies Act 1986 (RTA) as their submission was that Mr Booth was at that time in arrears of his rent in excess of 21 days.
Mr Booth’s application for a rehearing is made on the following grounds: a. The adjudicator (myself) did not discuss or consider his evidence regarding the health and safety / maintenance issues at the premise. b. He was prevented from engaging in the latter part of the hearing due to security staff forcing him from the building and preventing him from returning to the hearing after an adjournment. c. In particular he was not able to challenge the evidence of a witness for the applicant who gave evidence. The law
Section 105(1) RTA 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 in Wellington City Council v McMillan 1 (the McMillian case) held in, 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.”
Therefore, the test is fairly high given the requirement for a substantial wrong or miscarriage of justice. As noted in Powell v Dredge & Ors, CIV-2020-085-193 [2020] p5 “What must be demonstrated is something far greater than unhappiness, disagreement or dissatisfaction.”
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: “Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.” 1 [2003] DCR 50 Tenant’s submissions
Mr Booth elaborated on his written submissions at the hearing stating (summarised): a. The statement of the guard 2 to the Tribunal that they advised him he was allowed re-entrance after the adjournment was incorrect. The exact words used by the guard were “you are done for the day”. At no point, despite questioning them, was he told he could return for the remainder of the hearing. He considers there was a conspiracy by the guards as they lied to the Tribunal. b. The prevention of his attendance at the latter part of the hearing affected the outcome of the hearing because it went to his defence to the rent arrears claim being that he did not consider he should pay rent when the landlord was breaching their obligations. In particular the obligation pursuant to section 45 of the RTA that the premise is provided and maintained in a reasonable state of repair. c. He accepts that the application before the Tribunal was the landlord’s for rent arrears however explains that he had only had it clarified by the Tribunal on 6 November that he had a tenancy at this property and therefore had not had a chance to file any claims for maintenance. d. He cannot agree with my finding 3 that the parties were treated equally because a representative from Kāinga Ora was allowed to use her phone and leave the hearing room, whereas as soon as he stood the guard approached him and prevented him from leaving. e. It is not fair to expect a person to pay rent for a property which is non- compliant with the law. This is why he did not pay rent until directed to by the Tribunal. f. Kāinga Ora has breached section 49 of the RTA as they have failed to mitigate their loss. Had they dealt with the maintenance issues he was raising, he would have paid his rent.
Mr Booth has made a complaint to the Court regarding the security guards’ behaviour. As discussed at this hearing, that is not something I have jurisdiction to make findings on or determine and I leave that to the appropriate processes.
Mr Booth submits that there has been a miscarriage of justice, specifically: i. He was prevented from attending the hearing in its entity; and 2 Noted at paragraph 6 of the decision 3 At paragraph 9 of the decision ii. the Tribunal should not be entitled to focus on one party’s evasion of their responsibilities (i.e. failing to pay rent) whilst ignoring the other party’s (failure to properly maintain).
Accordingly, Mr Booth seeks a rehearing of the landlord’s application for termination. He submits that the consequence of terminating his tenancy will be that he will become homeless. This will have devastating effects for him and his family. The outcome therefore is far reaching and as such should be taken into account in the Tribunal’s decision. Landlord’s submissions
Ms Smith submits on behalf of Kāinga Ora that the rehearing application should be dismissed, and the original order reinstated. She says that maintenance issues were never a part of the original hearing as the Tribunal only had before it the landlord’s application for termination on the basis of rent arrears.
She further submits that the arrears remain in excess of 21 days, although Mr Booth has now commenced paying his rent. Accordingly, the original claim remains established.
Ms Smith submits that Mr Booth has not met the high standard for a rehearing to be granted as set out in the McMillan case of as he has not established that a miscarriage of justice has occurred.
Accordingly, she submits that the application should be dismissed, and tenancy terminated.

Has a substantial wrong or miscarriage of justice occurred or is it likely to occur?

I deal firstly with Mr Booth’s claim that his evidence regarding maintenance had not been properly considered. I reject this claim for the following reasons: i. It was on the basis of this evidence that an extensive discussion regarding maintenance evolved at the hearing and why Mr Henry was allowed to give evidence. Although the matters were not relevant to the landlord’s claim, I allowed Mr Booth to progress his submissions on the point. ii. Mr Booth’s claims regarding maintenance were referenced in the decision, see in particular paragraphs 18, 19, 20 and 31. iii. Accordingly, his evidence was not ignored. It was however disregarded as not relevant to the claim before me because he had not made a cross application for such determination.
I also reject Mr Booth’s submission that he could not have taken up the maintenance issues in the usual way because he thought he did not have a lawful tenancy at this premise. I note that it was advised by Kāinga Ora that he had a tenancy prior to August. That was confirmed by the Tribunal on 6 November. This hearing was held on 6 December, therefore Mr Booth had ample opportunity to file his claim.
Further I note that in his emails 4 to his property manager earlier in the year, he advises of his intention at that time (July) to file a claim regarding maintenance in the Tribunal. He has not done so at any point despite being aware of the process.
As Mr Booth had not filed any claim against Kāinga Ora, for maintenance or otherwise, the only matter before me on 6 December was Kāinga Ora’s application for termination on the basis of rent arrears. 5
Section 55(1) RTA states that the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that (1) the rent was, at the date on which the application was filed...at least 21 days in arrear.
The primary alternative the Tribunal has in such a situation is a conditional order which can only be granted at the Tribunal’s discretion 6 if the Tribunal 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 only other alternative available to the Tribunal is set out in s55(2) where the RTA 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.
Accordingly, to break it down, the decisions for the Tribunal were: a. Was the rent in 21 days arrears on the date the application was made? The answer to this was yes. 7 b. Is, despite the level of arrears, the Tribunal satisfied that the tenant will pay the rent arrears and not fail to pay further arrears? The answer to this was no. 8 c. Alternatively has the breach been remedied and the landlord compensated for loss? Again, no. 4 10 July and 4 July 2024 5 Pursuant to section 55 of the RTA 6 Section 55(1A) 7 See paragraphs 32 and 33 of the decision. 8 See paragraph 34 of the decision.
Section 55 of the RTA makes it clear that the only factors the Tribunal can take into account in considering such an application relate to the payment of rent. There is no provision for alternative factors to be considered. This may be different if a cross application had been filed and set off was relevant. That was not the case here.
The tenant responsibility to pay rent is not dependant on the landlord meeting their obligations under the RTA. Those are separate obligations, and a tenant cannot withhold rent based on a landlord failure.
Accordingly, a lack of maintenance could not have been considered as a reason for withholding rent, particularly in the absence of a cross application by Mr Booth. This is explained in paragraph 31 of the decision.
Mr Booth’s submission and evidence regarding maintenance issues was discussed at the hearing and rejected as a defence to the application. Accordingly, as maintenance issues were not relevant to the claim, this ground for a rehearing must fail.
Mr Booth’s second and primary ground relates to his exclusion from the hearing after the recess was granted upon his request. I agree that Mr Booth should have been present for the final section of the hearing, that would have been best practice. However, I note that the remainder of the hearing was relatively short and primarily was used to hear from the property manager about maintenance emails. Mr Booth had stated that as he had sent emails to the manager about maintenance the manager should provide them. The manager was therefore asked about the emails, which he could not recall. The manager was solely called to respond to Mr Booth’s evidence.
The hearing had continued because I had advised that it would and to my knowledge at the time Mr Booth could return at any time. I was under the impression he had chosen to leave the building.
Regardless, there was no evidence taken without Mr Booth being present at the hearing that was persuasive to my decision. I disregarded the evidence from Mr Henry as it was not relevant. I was merely acquiescing to Mr Booth’s request in allowing Mr Henry to be called.
Mr Booth has also raised the possibility of calling the guard to give evidence about what he said when ejecting Mr Booth. As I advised him at the hearing this would only be necessary if I considered that Mr Booth’s absence for the latter part of the hearing was pivotal. I do not. Whether the hearing had ended at the recess or when it did, my decision would not have been altered.
The crux of the matter is that Mr Booth was 21 days in rent arrears when the application for termination was filed by Kāinga Ora. He was in 21 days arrears at the first hearing and remains so. The requirements of section 55(1)(a) of the RTA are met. In such a situation the legislation is clear: the Tribunal shall terminate the tenancy.
Therefore, I find that Mr Booth has failed to establish the grounds for a rehearing. Accordingly, the tenancy must terminate for the reasons set out in the decision.
I accept Mr Booth’s submission that the termination of his tenancy may have far reaching and devastating effects for himself and his family. I most certainly empathise with him in this regard. However, I am not lawfully permitted to take those effects into account when applying section 55 of the RTA as sought.
I have directed a date for termination with sufficient time for Mr Booth to make alternative arrangements.

Tenancy Tribunal case 5054068 — Rent arrears at 10 Brown Grove, Porirua East, Porirua 5024

At a glance

Tenancy Tribunal case 5054068 — Rent arrears at 10 Brown Grove, Porirua East, Porirua 5024

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred or is it likely to occur?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred or is it likely to occur?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions