What was the outcome of Tenancy Tribunal case 4520929?

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

How much money was awarded in case 4520929?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4520929?

The dispute type was not classified.

Where can I read the official tribunal order for case 4520929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9665691-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4520929?

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

How much money was awarded in case 4520929?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4520929?

The dispute type was not classified.

Where can I read the official tribunal order for case 4520929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9665691-Tribunal_Order.pdf.

1226 Devon Road, Bell Block, New Plymouth 4373, Cottage Tenancy Tribunal Case 4520929 — Tenancy dispute

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing to start with. The hearing took place with both parties attending by telephone.
The hearing began at 9.30am. Only Mr Steel attended the hearing for the tenants. Mrs Steel’s telephone number did not connect and went to her voicemail and Mr Steel confirmed she would not be attending.
The Registrar attempted to call the case and Mr Steel interrupted so I asked him to wait until formalities had been done.
The parties then set out their full name for the record and I set out the provisions of s105(1) RTA. I also reminded the parties about the civil burden of proof which has been addressed previously in earlier hearings.
I then invited Mr Steel to make his submissions for the rehearing. Mr Steel advised very briefly that he refutes my ability to hear the case. He set out that he would not be accepting me making decisions as my decisions are biased, unethical and wrong. He said he would be retaining counsel and was declining this rehearing. He said he would be hanging up. He then hung up.
I did not call him back as he had made it clear he did not want to participate. 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”.
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.
Mr Steel chose to leave the hearing but I have dealt with the points raised briefly by him at the hearing and his written submissions. The landlord also provided submissions. Facts
On 21 September 2021 I made an order dismissing the tenant’s application and the landlord’s application. It is against this decision Mr Steel has made an application for a rehearing.
In this case the tenants requested an adjournment of this fourth scheduled hearing in this case due to ill health. The request was made in the early hours of the morning prior to the hearing starting.
The first hearing took place in April 2023, and it was a case management hearing. Mr Phillips requested an adjournment of this hearing which was declined. The hearing proceeded as scheduled.
The second hearing was a jurisdiction hearing (the jurisdiction hearing). This took place in May 2023 and the hearing proceeded as scheduled. The Tribunal accommodated a request by the tenants to attend via AVL.
The following hearing was a one-day hearing scheduled for 7 August 2023. This was to hear the substantive claims of the tenant and the landlord.
The tenant first asked for the hearing time to be moved because, due to time zone differences, the hearing would start at 6am their time. The Court Manager dealt with this request and the hearing proceeded at the scheduled time.
The tenant asked on 4 August 2023 for the hearing on 7 August 2023 to be adjourned citing a family emergency. No other details were given. The tenant chased the registry for a response that same afternoon saying they needed to start travel to assist family. The Tribunal was not sitting in New Plymouth on that day and so the request could not be considered until the morning of the hearing (being the next working day).
On the morning of the hearing the request was initially denied due to there being no evidence to support the case. The registrar then also received a request from Mr Phillips who had contacted the court, both by email and by telephone, to say he was sick with flu like symptoms.
Upon arriving at the Tribunal for the hearing I was told Mr Phillips had now also requested an adjournment. I then allowed the adjournment request of both parties given that Mr Phillips would now consent to the adjournment requested by the tenants due to his own illness.
The next hearing took place on 20 September 2023 with my order being made on 21 September 2023. In short, the tenants requested a late adjournment to this hearing. I declined the request. My order dated 21 September 2023 reasons 2-9 set out the circumstances of this request.
Following the hearing Mr Steel (not Mrs Steel) applied for a re-hearing.
Mr Steel has sent the Tribunal a medical certificate dated 20 September 2023. The Medical certificate is from Dr Matthew Thompson and it states:
Mr Steel also sent an email to the Tribunal on 16 October 2023. These appear to be written submissions to support grounds for a re-hearing.
In the absence of any significant oral submission from Mr Steel, having considered the re-hearing notice and the written submissions his grounds for a rehearing can be broadly stated to be as follows: a. It was wrong for me to not grant an adjournment when Mr and Mrs Steel said they were sick on 20 September 2023. b. I am biased. The proceedings are biased and unethical. I should not hear the application today. Today’s hearing should not have taken place by telephone (or should not have taken place at all – the submission is unclear). c. Procedural challenges are bought in relation to the conduct of proceedings at the case management conference and jurisdiction hearing. d. There is a conflict between the orders when I ruled that there was jurisdiction and the subsequent order where I dismissed a claim for want of jurisdiction. e. I ruled on three points without hearing the tenant’s evidence. f. The tenants want to be represented by counsel. g. There are outstanding separate monetary issues between the parties. h. There have been zero consequences for Mr Steel’s actions.

Has a substantial wrong or miscarriage of justice occurred?

For the reasons set out below Mr Steel has failed to establish the grounds for a rehearing. It was wrong to not grant an adjournment when Mr and Mrs Steel were sick
This ground fails because: a. An application for an adjournment may be declined at the Tribunal’s discretion. Adjournments are generally only granted where exceptional circumstances exist. There was no evidence to support the adjournment at the time the tenants requested it. b. Registrars, adjudicators and judges daily receive cases coming on for hearing where a party asks for an adjournment. Not infrequently “medical” grounds are advanced. Parties who think that this compels the Tribunal to not proceed with the hearing or that their nonattendance strengthens their request are mistaken. The decision whether to adjourn or not remains one for the adjudicator. A party who does not assist the decision maker in providing a principled basis for the adjournment will have difficulty in complaining if the discretion is not exercised in their favour. c. When considering an adjournment, the Tribunal balances fairness to the party with the other parties right to an expeditious hearing and outcome (see s 85 RTA) and Angelo v Lehr [2022] NZHC 3033. d. Mr Phillips states that there is ongoing matter between the parties where he expects to make a substantial recovery in the High Court following a loan to the Steels. He considers that these proceedings have been bought as an attempt by the tenants to show the High Court certain findings about his signature and that he owes the tenant money. He says that the tenants are using the proceedings to harass him as this separate issue continues via debt collectors and possibly in the courts. e. I find that on the basis of the evidence before me the exercise of my discretion was principled. I did not exercise my decision wrongly. This is because there were ample grounds upon which to exercise my discretion in this way: i. Here the tenants’ adjournment request was last minute. ii. The request followed a previous request for an adjournment (and separate request to change of time). iii. The hearing itself was a rescheduled hearing. iv. The request was advanced on tenuous grounds of likely ‘food poisoning’. v. There was no probative evidence to support the position that the tenants were sick. vi. The tenants did not have to travel to the Tribunal to attend the hearing. They could have attended via the scheduled AVL to explain their situation and give oral evidence about their tiredness/illness adding credibility to the emails they were sending the registry. They chose not to. vii. Mr Steel was not so unwell that he could not send coherent and not overly short emails to the registry at the time expressing his incredulity about the situation. viii. Despite an assertion that the tenants had just 15 minutes to prepare (due to the delayed 9.45am start time) this is clearly not correct. The hearing was scheduled well in advance. On the tenant’s own evidence, their sickness started at 1am. I would have expected the tenants to have prepared for a hearing starting at 9.30am NZ time (earlier in their own time zone) prior to the sickness, they say they had, starting. f. I am also satisfied that even on the basis of the evidence now filed for this hearing the tenants did not have good reason not to attend. This is because: i. Mrs Steel has provided no probative evidence of her sickness (and has not applied for a rehearing). Prior to this hearing the registrar asked if this was going to be provided. Mr Steel responded: ‘Oh of course the adjudicator wants this...we wouldn’t expect anything less!’ ii. He then continued to explain that Mrs Steel did not get a medical certificate having been incapacitated for two days. This email asking about Mrs Steel was sent by the registry who was managing the file and seeking to ensure that all evidence had been sent by the tenant rather than a direction from myself. In any event, it was an appropriate request. No medical certificate was provided. iii. Mr and Mrs Steel did not provide any oral evidence of her sickness. Mrs Steel did not attend today’s hearing. Mr Steel hung up. iv. I have no credible basis upon which to find Mrs Steel was unwell. If she was bedridden for two days, as Mr Steel says, I would have expected her to have consulted a doctor (particularly if the consultation could take place online - see below). v. Given that I find that there is no evidence Mrs Steel was unwell, Mrs Steel could have attended the hearing on behalf of Mr Steel if he was so unfit. g. Further and in any event, Mr Steel has provided a medical certificate for himself with very scant information. h. I alerted the tenants to the fact that they may want to consider additional medical evidence on 25 October 2023. i. Mr Steel sent an email in reply asking in part: ‘are you Doctors now? Do you have the intellect, the capacity &/or are you trained as Doctors to review and challenge a Doctors ruling that I was unfit to attend the hearing’ j. Whether I am a doctor or not is irrelevant. The Tribunal makes its decisions based on evidence. It is for the tenants to prove their position. This has been made clear throughout these proceedings. I must assess the weight of any evidence filed including any medical evidence relied upon to show that a party had good reason not to attend a hearing. k. In my judgment the evidence filed falls short of the medical evidence required to show that a party cannot attend a hearing. This is because: i. Such evidence should identify the nature of the consultation, the medical condition concerned and what features of the condition (in the medical attendant’s opinion) prevent participation in the hearing process (here via AVL) and should give the Tribunal some confidence that what is being expressed is independent opinion. The Tribunal can then consider what weight to attach to that opinion. No adjudicator is bound to accept opinion evidence. Even a medical report is just part of the material as a whole (including the history of the case). The document filed does not give sufficient information. ii. It seems likely that this was an online consultation as this is suggested when the verification link on the letter is followed. The website it takes me to states: ‘This medical certificate has been received following an online consultation with a Partner Doctor through updoc’. While this may have been explained by Mr Steel, there was no opportunity to get Mr Steel’s evidence about this at the hearing as he hung up. iii. The medical certificate has noticeable different size fonts in the sections for the dates. While this may have been explained by Mr Steel, there was no opportunity to get Mr Steel’s evidence about this at the hearing as he hung up. iv. The medical certificate cannot be verified via the verification link on it. I have attempted to do this. When the verification link is followed additional information is required (such as an employer’s address which I do not have). There was no opportunity to ask Mr Steel about this at the hearing or ask him to provide verification details as he hung up. v. Overall, the medical certificate relied upon is wholly inadequate. It provides scant information and I am not satisfied it is a reliable basis upon which to find that Mr Steel had good reason not to attend the hearing on 20 September 2023. I am biased. The proceedings are biased and unethical. I should not hear the application today. Today’s hearing should not have taken place by telephone (or should not have taken place at all – the submission is unclear) Various procedural challenges to the conduct of proceedings at the case management conference and jurisdiction hearing.
These grounds fail because: a. Where a rehearing application is filed, a hearing to determine if a rehearing will be granted is required. It was proper for the hearing to be held today. (Havea and Havea v Tupou and Tupou [2021] NZDC 20474) b. The Tribunal frequently conducts hearings by telephone. This matter was a standard rehearing matter to be heard by telephone. Further, the tenant is in Australia. A telephone or AVL is required. Requiring an AVL requires the use of a room usually reserved for a Judge and requiring it is disproportionate to the matter at hand. c. The usual practice of the Tenancy Tribunal is that a rehearing application is considered by the original adjudicator who made the decision which the applicant is seeking to have reheard (Fetherston v Lee, DC North Shore, CIV-2012-044-001127, 7 May 2013). I have considered in this further in the light of the tenant’s allegations that I am biased. For reasons set out in relation to bias below, I find that there is no reason for me not to conduct this rehearing application. d. Essentially the District Court has held that the test for bias is whether a fair- minded observer might reasonably consider that the decision maker did not bring an open mind to the situation. e. Another relevant decision, this time in the Court of Appeal, is Muir v Commissioner of Inland Revenue & Anor (CA) 46/06 [2007] NZCA 334. “In our view, the correct enquiry is a two stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case. This standard emphasises to the challenged judge that a belief in her own purity will not do; she must consider how others would view her conduct.” f. I consider that the lay observer of the hearing would not be of the view that I was preferring the landlord over the tenant. g. In relation to bias and unethical behaviour the tenant appears to rely on the fact that Mr Phillips was granted an adjournment when he was sick. At the time of Mr Phillip’s adjournment request, based on his sickness, the tenants had already requested an adjournment for family reasons. Mr Phillips’s request was essentially consenting to the tenants’ request and this is why I allowed it. It was an appropriate exercise of my discretion and this does not establish bias or unethical behaviour. I note that I denied an adjournment request made by Mr Phillips for the first hearing. h. The tenant also appears to rely on other procedural decisions made in earlier hearings. Where such a challenge is to be made a rehearing request following that decision should be bought. That has not been done. In any event, I do not consider the factors raised by the tenant establish bias or unethical behaviour for the reasons set out below. i. The procedural decisions cited by the tenant in their submissions are far from unusual in the Tenancy Tribunal. ii. Proceedings in the Tribunal are adversarial (the parties must prove their own cases; the Tribunal is an impartial decision-maker) but the proceedings are less formal and more flexible than ordinary court proceedings. There is no formal discovery process and parties may bring documents to the hearing itself. Parties often arrive with witnesses who they have not told the Tribunal about. iii. While the Tribunal may issue requests via the registry to the parties to provide documents in advance or provide the name of witnesses, in the absence of a formal direction, this is simply to assist with the timely running of proceedings. Parties are generally free to adduce documents in the hearing itself or bring witnesses. Having documents in advance assists the Tribunal and the parties particularly here because the tenants wanted to attend via AVL (which is less usual in this Tribunal). This was accommodated in this request by the Tribunal. Attending a hearing remotely slows proceedings down when documents have to be received during the course of proceedings. iv. I gave directions at the case management hearing about Mr Phillips establishing whether the cottage was lawful premises. I also repeated the request in a later order. There was nothing irregular about this. In any event no satisfactory supporting documents were produced by Mr Phillips and his application was dismissed. No rehearing was applied for following these directions. The tenant did provide additional documents in any event on or about 16 May 2023. v. The hearing dealing with jurisdiction dealt with all matters relating to jurisdiction. This includes whether or not a residential tenancy was in place. All parties were heard in full including witnesses. The tenants were clearly aware of this. The tenancy agreement itself was discussed at the hearing itself and their own written submissions of 8 May 2023 also refer to the signing of the tenancy agreements in the context of the jurisdiction hearing. It is up to the tenants to ensure that the evidence they want considered (including questions asked of witnesses) is presented to the Tribunal. It is not up to the Tribunal to extract that evidence. No rehearing was applied for following that decision. No appeal was made. vi. To the extent that the tenants are unhappy with the decision made relating to jurisdiction (or other orders) this is not a ground for a rehearing and no appeal has been made. vii. Order 3 of my order dated 21 September 2023 refers to the cottage being unlawful residential premises but that does not prevent the premises from being ‘residential premises’ and therefore subject to the usual provisions of the RTA. In any event, if the tenant is unhappy with this decision this would be a ground for an appeal not a rehearing. There is a conflict between the orders when I ruled that there was jurisdiction and the subsequent order where I dismissed a claim for want of jurisdiction
This ground fails because this is not a ground for a rehearing.
In any event, my order of 21 September 2023 ruled that a residential tenancy was in place from 1 September 2022. Therefore, jurisdiction would run from that date. Claims relating to the period prior to that date cannot fall within the jurisdiction of the Tribunal (order 1 of the order 21 September 2023). There is no conflict with my decision on 21 September 2023. I ruled on three points without hearing the tenant’s evidence
This ground fails because: a. It is unclear which three points Mr Steel is referring to. b. So far as this relates to jurisdiction and the tenancy agreement I have dealt with this above. c. So far as this relates to the order of 21 September 2023, a hearing may proceed in a parties’ absence. The tenants were told the hearing was proceeding. Mr Phillips’s application was unsuccessful in any event. So far as the tenants are not happy with the decision this would be a ground for an appeal not a rehearing. The tenants want to be represented by counsel
The tenants have had ample time to do this. The application as filed on 23 March 2023. The first order in this case was made on 1 May 2023.
If the tenants wanted representation that could have been arranged for any of the hearings including this one.
This is not a ground for a rehearing. There have been zero consequences for Mr Steel’s actions and there are outstanding money issues between the parties
These are not grounds for a rehearing. Conclusion
The application for a re-hearing must fail.
The application for a rehearing is dismissed.

Tenancy Tribunal case 4520929 — Tenancy dispute at 1226 Devon Road, Bell Block, New Plymouth 4373, Cottage

At a glance

Claims & awards

Tenancy Tribunal case 4520929 — Tenancy dispute at 1226 Devon Road, Bell Block, New Plymouth 4373, Cottage

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions