What was the outcome of Tenancy Tribunal case 4562789?

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

How much money was awarded in case 4562789?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4562789?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 4562789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9639578-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4562789?

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

How much money was awarded in case 4562789?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4562789?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 4562789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9639578-Tenancy_Tribunal_Order.pdf.

32 Forbes Street, Onehunga, Auckland 1061 Tenancy Tribunal Case 4562789 — Rent arrears

Order

The application for rehearing is dismissed.
The possession order (Order 5) of the mediator’s order sealed by the Tribunal on 25 October 2023 is stayed and cannot be enforced.

Reasons

Both parties attended the hearing which I conducted by phone.
On 25 May 2023 I sealed a mediator’s conditional termination and possession order.
The tenant has applied for a rehearing on the grounds that the landlord did not enforce the order within 90 days of the first breach as required by section 64(4)(b) of the Residential Tenancies Act 1986 (RTA).
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’.
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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons the tenant has failed to establish grounds for a rehearing.
A rehearing cannot deal with anything that was not part of the first order.
Here, the tenant does not dispute the amount of rent arrears ordered to be paid. So, there is no issue to rehear.
Due to the amount of rent owing, the Tribunal had to terminate the tenancy. Again, there is no dispute about the order the Tribunal made.
The order contained conditions (inserted for the benefit of both parties) that meant the possession order could only be enforced if the tenant failed to meet the conditions.
The tenant is correct in his submission that he did not meet the condition in order 3(b). Instead of making the payment on 7 June 2023 (due at the latest on 9 June), the payment was not made until 12 June. Payment was made when the landlord received it.
Although the landlord said he considered the late payment to be due to a bank error, the tenant denies that. But even if it were, the payment was still made late and that was a breach by the tenant.
The landlord had 90 days from 9 June 2023 to apply to enforce the possession order. However, the application was not made until 25 October, which was within 90 days of the second breach, a breach of order 3(f).
Time under section 64(4)(b) RTA starts running from the date of the first breach. The landlord effectively ignored the first breach, regarding it as an error, which was to the tenant’s benefit. Unfortunately, that has counted against him.
A rehearing cannot achieve anything in this case. The terms of the substantive order are not challenged. It is simply a case where the possession order leading to the application for a warrant of eviction cannot be enforced because it is out of time.

What now?

The rent is currently in arrears by $3,700.00. The tenant accepts that. So, the landlord can immediately apply to terminate the tenancy under section 55(1)(a) RTA.
The tenant said he has paid $1,100.00 today reducing the arrears to $2,600.00. He said he is currently looking for another tenancy and intends fully clearing the arrears before he moves.
There is a good incentive for the tenant to fully repay the remaining arrears. The mediator’s order was not published, nor will this order be published. If the landlord were to succeed on an application to terminate the tenancy for rent arrears, that order would likely be published. Result
The application for rehearing is dismissed. There is no issue to be reheard.
The application for a possession was made more than 90 days after the first breach of the mediator’s order sealed on 25 October 2023 so cannot be enforced. The possession order is stayed.

Order

The application for rehearing is dismissed.
The possession order (Order 5) of the mediator’s order sealed by the Tribunal on 25 October 2023 is stayed and cannot be enforced.

Reasons

Both parties attended the hearing which I conducted by phone.
On 25 May 2023 I sealed a mediator’s conditional termination and possession order.
The tenant has applied for a rehearing on the grounds that the landlord did not enforce the order within 90 days of the first breach as required by section 64(4)(b) of the Residential Tenancies Act 1986 (RTA).
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’.
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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons the tenant has failed to establish grounds for a rehearing.
A rehearing cannot deal with anything that was not part of the first order.
Here, the tenant does not dispute the amount of rent arrears ordered to be paid. So, there is no issue to rehear.
Due to the amount of rent owing, the Tribunal had to terminate the tenancy. Again, there is no dispute about the order the Tribunal made.
The order contained conditions (inserted for the benefit of both parties) that meant the possession order could only be enforced if the tenant failed to meet the conditions.
The tenant is correct in his submission that he did not meet the condition in order 3(b). Instead of making the payment on 7 June 2023 (due at the latest on 9 June), the payment was not made until 12 June. Payment was made when the landlord received it.
Although the landlord said he considered the late payment to be due to a bank error, the tenant denies that. But even if it were, the payment was still made late and that was a breach by the tenant.
The landlord had 90 days from 9 June 2023 to apply to enforce the possession order. However, the application was not made until 25 October, which was within 90 days of the second breach, a breach of order 3(f).
Time under section 64(4)(b) RTA starts running from the date of the first breach. The landlord effectively ignored the first breach, regarding it as an error, which was to the tenant’s benefit. Unfortunately, that has counted against him.
A rehearing cannot achieve anything in this case. The terms of the substantive order are not challenged. It is simply a case where the possession order leading to the application for a warrant of eviction cannot be enforced because it is out of time.

What now?

The rent is currently in arrears by $3,700.00. The tenant accepts that. So, the landlord can immediately apply to terminate the tenancy under section 55(1)(a) RTA.
The tenant said he has paid $1,100.00 today reducing the arrears to $2,600.00. He said he is currently looking for another tenancy and intends fully clearing the arrears before he moves.
There is a good incentive for the tenant to fully repay the remaining arrears. The mediator’s order was not published, nor will this order be published. If the landlord were to succeed on an application to terminate the tenancy for rent arrears, that order would likely be published. Result
The application for rehearing is dismissed. There is no issue to be reheard.
The application for a possession was made more than 90 days after the first breach of the mediator’s order sealed on 25 October 2023 so cannot be enforced. The possession order is stayed.

Tenancy Tribunal case 4562789 — Rent arrears at 32 Forbes Street, Onehunga, Auckland 1061

At a glance

Tenancy Tribunal case 4562789 — Rent arrears at 32 Forbes Street, Onehunga, Auckland 1061

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

What now?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

What now?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions