What was Tenancy Tribunal case 5143529 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 5143529?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5143529?

The dispute type was not classified.

Where can I read the official tribunal order for case 5143529?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11692075-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5143529 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 5143529?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5143529?

The dispute type was not classified.

Where can I read the official tribunal order for case 5143529?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11692075-Tribunal_Order_Redacted.pdf.

139 Luckens Road, West Harbour, Auckland 0618 Tenancy Tribunal Case 5143529 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Applicant’s name and identifying details.
The application for a rehearing is dismissed.

Reasons

On 10 February 2025, the Tribunal made an order granting possession of the premises to the applicant under section 65 of the Residential Tenancies Act 1986 (RTA).
On 24 February 2025, the respondent, Scott Gordon (preferred name “Scott”) filed an application for a rehearing.
On 7 April 2025, a hearing was held to hear submissions from both parties about why a rehearing should or should not be granted. The Tribunal granted the respondent permission to be represented by Tracey Lynch. The Tribunal heard submissions from Ms Lynch and Scott on behalf of the respondent.
The main grounds upon which the respondent seeks a rehearing are: a. The Tribunal has no jurisdiction to hear the applicant’s claim for a possession order; and b. The respondent was not personally served with a notice of the hearing.

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 person applying for a rehearing 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.”

ANALYSIS

First ground: Jurisdiction of the Tribunal to make a possession order in favour of the applicant

Under section 65 RTA, the Tribunal has jurisdiction to make a possession order in favour of a person entitled to possession of any residential premises if it is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation.
In this case, the Tribunal considered the applicant to be a person entitled to possession of the premises, because they are the registered owner on the certificate of title for the premises.
The respondent claims the applicant is not a person entitled to possession of the premises, because the mortgagee sale, by which ownership was transferred to the applicant, was unlawful.
The respondent is correct in their submission that the Tribunal does not have jurisdiction to determine the lawfulness of the mortgagee sale. This does not mean however, that the Tribunal does not have jurisdiction to make a possession order under section 65 RTA. The Tribunal can make a possession order under this section to a person entitled to possession of the premises. Section 65 does not require the Tribunal to be satisfied that such a person is lawfully in possession of the premises. The Tribunal is not required to enquire into the background circumstances by which an applicant became the registered owner of the property under section 65. All the Tribunal needs to do is determine is whether the applicant is in fact the registered owner and therefore entitled to possession.
The respondent claims they have filed proceedings in the High Court challenging the lawfulness of the mortgagee sale and a decision is pending. The respondent submits that the Tribunal should not make a possession order in favour of the applicant until the High Court has issued its decision.
The District and High Courts have made it clear that the Tribunal cannot evaluate the merits of any claim in another court when determining whether an applicant has a right of possession. 1 The Tribunal has no jurisdiction to allow consideration of other (undetermined) claims. The High Court agreed with the District Court in Tapsell that an Adjudicator is not in a position to evaluate other potential claims before the High Court. 2 1 Chou v Chou [2016] NZDC 15768 at [21]; Sergeant v Nigro & Tapsell [2019] NZHC at [91] – [94]; Rotier v Cotterill [2021] NZDC 23060 at [7]. 2 Ibid at [90].
The fact that there may be extant claims challenging the applicant’s entitlement to possession does not change the present position that they are the registered owner of the premises and therefore entitled to possession. 3 Second ground: the respondent was not personally served with a notice of hearing
The respondent did not attend the hearing on 10 February 2025 and claims that a rehearing should be granted because they were not personally served.
In cases where a party seeks a rehearing after they failed to attend the original hearing, the Tribunal considers the following factors: a. Was the respondent’s failure to appear excusable? b. When the respondent became aware of the orders did they move promptly to apply for a rehearing? c. Is there a defence which ought to be heard? d. Will the other party suffer irreparable harm if the hearing is granted?
Applying these factors to the present case, I make the following observations. Was the respondent’s failure to appear excusable?
The respondent claims they were not personally served with the notice of hearing. Whilst this may be true, personal service is not required under the RTA.
Sections 91A and 136 of the RTA state how documents must be served on a landlord or tenant. These sections do not apply to the present case, because the applicant is not a “landlord” and the respondent is not a “tenant” under section 2 RTA.
Section 65 RTA does not mention service. There is nothing in section 65 which requires a notice of hearing to be served personally.
Section 91(1) RTA relevantly states: Where any application is referred to, or directed to be reconsidered and determined by, the Tribunal under section 87 or section 88, the Tribunal shall cause to be given to each party to the dispute reasonable notice of the time, place, and purpose of the hearing to be held in respect of the application.
I consider it more likely than not that the respondent has been given reasonable notice of the time, place and purpose of the hearing on 10 February 2025. 3 Ibid at [91] – [93].
The respondent gave evidence that they lived at the premises until 18 February 2025. The notice of hearing was posted to the respondent at the premises on 30 January 2025.
The notice of hearing was also emailed to the respondent on 30 January 2025. The respondent accepts that they received this email, but states nothing was attached. The file indicates that the notice of hearing and applicant’s written application were attached. The body of the email states: Kia ora A Tenancy Tribunal hearing has been scheduled for: 10/02/2025 2:00 PM It will be held at 9 Ratanui Street Henderson, Auckland 0612. ...
The respondent was also sent a text message notification on 30 January 2025. The text message was sent to the same number provided by the respondent as a contact number for the phone hearing on 7 April 2025. The text message states: Tenancy App: 5143529 A Tenancy Tribunal hearing has been scheduled for 10/02/2025 2:00 PM It will be held at 9 Ratanui Street, Henderson, Auckland 0612...
The applicant also texted the respondent about the date and time of the hearing on 31 January 2025. The respondent replied to this text message indicating that they read the applicant’s text message.
Although the respondent was not personally served with the notice of hearing, I consider it more likely than not that they were aware of the time, place and purpose of the hearing. The time and place of the hearing were clearly communicated to the respondent via email and text message. The respondent also knew the property had been sold to the applicant at a mortgagee sale and that the applicant was trying to take possession of the property. Even if the respondent did not read or receive the notice of hearing sent to him in the post and by email, I consider it more likely than not that he knew that the hearing on 10 February 2025 involved a request by the applicant for possession of the property.
The fact that the respondent was not personally served with the notice of hearing is not a reasonable excuse for failing to attend. When the respondent became aware of the orders did they move promptly to apply for a rehearing?
The respondent became aware of the orders on 18 February 2025 when bailiffs forcibly removed him from the premises. He filed an application for a rehearing on 24 February 2025, which is 6 days later.
The respondent did not file the application promptly within 5 working days of the date of the order however, I have permitted him to apply for a rehearing out of time.

Is there a defence which ought to be heard?

The respondent did not submit any evidence establishing that the applicant was not the registered owner on the certificate of title and therefore, not entitled to possession of the premises.
The respondent did not submit any evidence establishing that they were living in the premises at the relevant time pursuant to a right of occupation granted by the applicant.
As already discussed, the fact that the respondent has filed proceedings in the High Court challenging the lawfulness of the mortgagee sale is irrelevant to whether the applicant is a person entitled to possession of the premises at the present moment.
The respondent has not proven there is a defence which ought to be heard.

Will the other party suffer irreparable harm if the rehearing is granted?

The respondent has applied for a rehearing and stay of proceedings.
The applicant settled the purchase of the property on 17 January 2025 and is paying a mortgage. If a rehearing and stay are granted, the applicant will risk losing possession of the property in circumstances where they are required to continue paying their mortgage.
The applicant will suffer irreparable harm if a rehearing and stay of proceedings is granted.

CONCLUSION

The above criteria are tests by which the justice of the case is to be measured to determine whether a rehearing should be granted. Weighing up the criteria, I find that the interests of justice dictate that the rehearing application be dismissed.
The first ground for the rehearing reflects a disagreement with the decision of the Tribunal. Disagreement with a decision of the Tribunal is not a legitimate basis upon which to grant a rehearing. Where a party disagrees with a decision of the Tribunal, the appropriate course is to appeal the decision to the District Court within the relevant time frame, not apply for a rehearing.
The second ground for the rehearing is that the respondent was not personally served with the notice of hearing. Whilst that might be true, personal service is not required under the RTA and there is strong evidence to suggest that the respondent knew about the time, place and purpose of the hearing. The notice of hearing was posted to them to an address they were living at, at the relevant time. It was also sent to them via email. Text messages stating the date, time and place of the hearing were also sent to the respondent at the same number the respondent requested to be contacted on for the phone hearing on 7 April 2025.
On the balance of probabilities, I consider it more likely than not that the respondent knew about the hearing on 10 February 2025 and chose not to attend under the mistaken belief that they needed to be personally served with the notice of hearing. That is not the case.
The respondent has not established that a miscarriage of justice or substantial wrong has occurred.

Reasons

On 10 February 2025, the Tribunal made an order granting possession of the premises to the applicant under section 65 of the Residential Tenancies Act 1986 (RTA).

On 24 February 2025, the respondent, Scott Gordon (preferred name “Scott”) filed an application for a rehearing.

On 7 April 2025, a hearing was held to hear submissions from both parties about why a rehearing should or should not be granted. The Tribunal granted the respondent permission to be represented by Tracey Lynch. The Tribunal heard submissions from Ms Lynch and Scott on behalf of the respondent.

The main grounds upon which the respondent seeks a rehearing are: a. The Tribunal has no jurisdiction to hear the applicant’s claim for a possession order; and b. The respondent was not personally served with a notice of the hearing.

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 person applying for a rehearing 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.”

ANALYSIS

First ground: Jurisdiction of the Tribunal to make a possession order in favour of the applicant

Under section 65 RTA, the Tribunal has jurisdiction to make a possession order in favour of a person entitled to possession of any residential premises if it is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation.

In this case, the Tribunal considered the applicant to be a person entitled to possession of the premises, because they are the registered owner on the certificate of title for the premises.

The respondent claims the applicant is not a person entitled to possession of the premises, because the mortgagee sale, by which ownership was transferred to the applicant, was unlawful.

The respondent is correct in their submission that the Tribunal does not have jurisdiction to determine the lawfulness of the mortgagee sale. This does not mean however, that the Tribunal does not have jurisdiction to make a possession order under section 65 RTA. The Tribunal can make a possession order under this section to a person entitled to possession of the premises. Section 65 does not require the Tribunal to be satisfied that such a person is lawfully in possession of the premises. The Tribunal is not required to enquire into the background circumstances by which an applicant became the registered owner of the property under section 65. All the Tribunal needs to do is determine is whether the applicant is in fact the registered owner and therefore entitled to possession.

The respondent claims they have filed proceedings in the High Court challenging the lawfulness of the mortgagee sale and a decision is pending. The respondent submits that the Tribunal should not make a possession order in favour of the applicant until the High Court has issued its decision.

The District and High Courts have made it clear that the Tribunal cannot evaluate the merits of any claim in another court when determining whether an applicant has a right of possession. 1 The Tribunal has no jurisdiction to allow consideration of other (undetermined) claims. The High Court agreed with the District Court in Tapsell that an Adjudicator is not in a position to evaluate other potential claims before the High Court. 2 1 Chou v Chou [2016] NZDC 15768 at [21]; Sergeant v Nigro & Tapsell [2019] NZHC at [91] – [94]; Rotier v Cotterill [2021] NZDC 23060 at [7]. 2 Ibid at [90].

The fact that there may be extant claims challenging the applicant’s entitlement to possession does not change the present position that they are the registered owner of the premises and therefore entitled to possession. 3 Second ground: the respondent was not personally served with a notice of hearing

The respondent did not attend the hearing on 10 February 2025 and claims that a rehearing should be granted because they were not personally served.

In cases where a party seeks a rehearing after they failed to attend the original hearing, the Tribunal considers the following factors: a. Was the respondent’s failure to appear excusable? b. When the respondent became aware of the orders did they move promptly to apply for a rehearing? c. Is there a defence which ought to be heard? d. Will the other party suffer irreparable harm if the hearing is granted?

Applying these factors to the present case, I make the following observations. Was the respondent’s failure to appear excusable?

The respondent claims they were not personally served with the notice of hearing. Whilst this may be true, personal service is not required under the RTA.

Sections 91A and 136 of the RTA state how documents must be served on a landlord or tenant. These sections do not apply to the present case, because the applicant is not a “landlord” and the respondent is not a “tenant” under section 2 RTA.

Section 65 RTA does not mention service. There is nothing in section 65 which requires a notice of hearing to be served personally.

Section 91(1) RTA relevantly states: Where any application is referred to, or directed to be reconsidered and determined by, the Tribunal under section 87 or section 88, the Tribunal shall cause to be given to each party to the dispute reasonable notice of the time, place, and purpose of the hearing to be held in respect of the application.

I consider it more likely than not that the respondent has been given reasonable notice of the time, place and purpose of the hearing on 10 February 2025. 3 Ibid at [91] – [93].

The respondent gave evidence that they lived at the premises until 18 February 2025. The notice of hearing was posted to the respondent at the premises on 30 January 2025.

The notice of hearing was also emailed to the respondent on 30 January 2025. The respondent accepts that they received this email, but states nothing was attached. The file indicates that the notice of hearing and applicant’s written application were attached. The body of the email states: Kia ora A Tenancy Tribunal hearing has been scheduled for: 10/02/2025 2:00 PM It will be held at 9 Ratanui Street Henderson, Auckland 0612. ...

The respondent was also sent a text message notification on 30 January 2025. The text message was sent to the same number provided by the respondent as a contact number for the phone hearing on 7 April 2025. The text message states: Tenancy App: 5143529 A Tenancy Tribunal hearing has been scheduled for 10/02/2025 2:00 PM It will be held at 9 Ratanui Street, Henderson, Auckland 0612...

The applicant also texted the respondent about the date and time of the hearing on 31 January 2025. The respondent replied to this text message indicating that they read the applicant’s text message.

Although the respondent was not personally served with the notice of hearing, I consider it more likely than not that they were aware of the time, place and purpose of the hearing. The time and place of the hearing were clearly communicated to the respondent via email and text message. The respondent also knew the property had been sold to the applicant at a mortgagee sale and that the applicant was trying to take possession of the property. Even if the respondent did not read or receive the notice of hearing sent to him in the post and by email, I consider it more likely than not that he knew that the hearing on 10 February 2025 involved a request by the applicant for possession of the property.

The fact that the respondent was not personally served with the notice of hearing is not a reasonable excuse for failing to attend. When the respondent became aware of the orders did they move promptly to apply for a rehearing?

The respondent became aware of the orders on 18 February 2025 when bailiffs forcibly removed him from the premises. He filed an application for a rehearing on 24 February 2025, which is 6 days later.

The respondent did not file the application promptly within 5 working days of the date of the order however, I have permitted him to apply for a rehearing out of time.

Is there a defence which ought to be heard?

The respondent did not submit any evidence establishing that the applicant was not the registered owner on the certificate of title and therefore, not entitled to possession of the premises.

The respondent did not submit any evidence establishing that they were living in the premises at the relevant time pursuant to a right of occupation granted by the applicant.

As already discussed, the fact that the respondent has filed proceedings in the High Court challenging the lawfulness of the mortgagee sale is irrelevant to whether the applicant is a person entitled to possession of the premises at the present moment.

The respondent has not proven there is a defence which ought to be heard.

Will the other party suffer irreparable harm if the rehearing is granted?

The respondent has applied for a rehearing and stay of proceedings.

The applicant settled the purchase of the property on 17 January 2025 and is paying a mortgage. If a rehearing and stay are granted, the applicant will risk losing possession of the property in circumstances where they are required to continue paying their mortgage.

The applicant will suffer irreparable harm if a rehearing and stay of proceedings is granted.

CONCLUSION

The above criteria are tests by which the justice of the case is to be measured to determine whether a rehearing should be granted. Weighing up the criteria, I find that the interests of justice dictate that the rehearing application be dismissed.

The first ground for the rehearing reflects a disagreement with the decision of the Tribunal. Disagreement with a decision of the Tribunal is not a legitimate basis upon which to grant a rehearing. Where a party disagrees with a decision of the Tribunal, the appropriate course is to appeal the decision to the District Court within the relevant time frame, not apply for a rehearing.

The second ground for the rehearing is that the respondent was not personally served with the notice of hearing. Whilst that might be true, personal service is not required under the RTA and there is strong evidence to suggest that the respondent knew about the time, place and purpose of the hearing. The notice of hearing was posted to them to an address they were living at, at the relevant time. It was also sent to them via email. Text messages stating the date, time and place of the hearing were also sent to the respondent at the same number the respondent requested to be contacted on for the phone hearing on 7 April 2025.

On the balance of probabilities, I consider it more likely than not that the respondent knew about the hearing on 10 February 2025 and chose not to attend under the mistaken belief that they needed to be personally served with the notice of hearing. That is not the case.

The respondent has not established that a miscarriage of justice or substantial wrong has occurred.

Tenancy Tribunal case 5143529 — Tenancy dispute at 139 Luckens Road, West Harbour, Auckland 0618

At a glance

Claims & awards

Tenancy Tribunal case 5143529 — Tenancy dispute at 139 Luckens Road, West Harbour, Auckland 0618

At a glance

Claims & awards

Order

Reasons

THE LAW

ANALYSIS

Is there a defence which ought to be heard?

Will the other party suffer irreparable harm if the rehearing is granted?

CONCLUSION

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

THE LAW

ANALYSIS

Is there a defence which ought to be heard?

Will the other party suffer irreparable harm if the rehearing is granted?

CONCLUSION

Topics & place

Residential Tenancies Act sections

Frequently asked questions