What was the outcome of Tenancy Tribunal case 4601690?

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

How much money was awarded in case 4601690?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4601690?

The dispute type was not classified.

Where can I read the official tribunal order for case 4601690?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9497054-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4601690?

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

How much money was awarded in case 4601690?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4601690?

The dispute type was not classified.

Where can I read the official tribunal order for case 4601690?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9497054-Tribunal_Order.pdf.

Unit/Flat 2, 13 Estelle Place, Farm Cove, Auckland 2012 Tenancy Tribunal Case 4601690 — Tenancy dispute

Order

The application for rehearing is dismissed.

Reasons

On 27 June 2023 the Tribunal made an order granting immediate possession of the premises to the landlord pursuant to section 65 of the Residential Tenancies Ac 1986 (eviction of squatters) (the Act).
On 28 July 2023 the tenant applied for a rehearing out of time on the grounds that he did not get notice of the hearing.
Section 105(1) of the Act 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 party applying for the rehearing must usually 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. Background
A brief summary of the background is as follows: • The previous owner of the property was McDara Trustees Limited. The tenant is the sole director and shareholder of this company. • The property was mortgaged to Wroxton Finance Limited on 28 April 2022 (the mortgagee). • On 19 November 2022, the tenant granted a residential tenancy to Mr Ee Kuoh Lau for a fixed term from 19 November 2022 to 19 November 2025. Although not clearly stated in the written agreement (which uses Tenancy Services’ standard form) the rent was $60,000.00 payable for renovation work on the property by the tenant. Additional terms provided that Mr Lau had possession except for 1 room, which the tenant could stay in until the renovation was completed. The tenancy could not be terminated without Mr Lau’s consent. Further, Mr Lau was given “first right” to purchase the property for an unspecified sum. • In about December 2022 the mortgagee exercised a power of sale after the mortgagor defaulted. • The landlord entered into a sale and purchase agreement with the mortgagee on 21 April 2023. The further terms of sale stated that the property was sold subject to existing tenancies or occupations, if any, including holding over by the mortgagor. • On or about 26 May 2023 the landlord became the registered owner of the property. • On 27 June 2023 the Tribunal granted the landlord possession of the property. The tenant was evicted on 21 July 2023. • Mr Lau has since lodged a caveat in reliance on the lease and has filed an application in the High Court for an order that the caveat not lapse.

Has a substantial wrong or miscarriage of justice occurred?

The Tribunal’s order of 29 July 2023 requested that the parties attend the rehearing application ready to discuss the merits of the tenant’s argument that he has a right of occupation. The parties were requested to bring any relevant documents. Two hours were allowed for the hearing.
The tenant says he did not have notice of the previous hearing. The Tribunal’s records show that notice was posted to the tenant’s address on 16 June 2023. The tenant says the lack of notice establishes that there has been a miscarriage of justice. In my view, however, the overall merits of the tenant’s arguments are relevant to whether or not there has, or may have been, a miscarriage of justice.
The tenant submitted that he had granted Mr Lau a tenancy and in turn Mr Lau had granted him a right of occupation. Mr Lau, who was permitted to give evidence, relied on the provision in the sale and purchase agreement which states that the property is sold subject to existing tenancies.
I note that this is not the first time Mr Lau has lodged caveats in response to mortgagee sales. An example is Westpac New Zealand Limited v Law [2012] NZHC 890. As noted in that case, the proviso that the property was sold subject to existing tenancies did not mean the mortgagee consented to existing tenancies. It meant the mortgagee did not warrant that the property was not subject to a lease.
The other main difficulty with the tenant’s position is that the mortgagee did not consent to the tenancy. The general principle under section 119 of the Land Transfer Act 1952, and now section 91 of the Landlord Transfer Act 2017, is that a lease only binds a mortgagee if they have consented to it (GP96 Limited v PVG Securities Trustee Ltd [2019] NZCA 325). The solicitors acting for the mortgagee confirm in a letter that the mortgagee was not advised of and did not consent to any lease. The landlord also says they were unaware of any tenancy.
It follows that the landlord purchased the property from the mortgagee free from any purported interest or estate deriving from the tenancy agreement (section 103 of the Land Transfer Act 2017).
Without the consent of the mortgagee, the tenant could not grant a tenancy to Mr Lau. In turn, Mr Lau had no lawful authority to grant a sub-tenancy. It is worth reiterating that a respondent to a section 65 application must not only show they have a right of occupation, but also that the right has been granted by a person having lawful authority to do so. Mr Lau has never been the registered owner of the property and had no standing to grant a right of occupation.
Further, this is not a case to which section 58 of the Act applies (mortgagee or other person becoming entitled to possession). The tenancy was not binding on the mortgagee to begin with. The provisions of section 58 (which can be seen as an exception to the doctrine of indefeasibility of title) can have no application where a valid tenancy has not been granted. Further, I have difficulty with the idea that this was a tenancy for residential purposes to which the Act applies – I doubt if there was ever any intention that Mr Lau would occupy the property as a place of residence.
Even if that is wrong, under section 58(1)(d) of the Act the landlord would in any event be entitled to give notice to end the tenancy pursuant to section 51(1)(a) (owner requires the premises as the principal place of residence for the owner or a member of the owner’s family) or section 51(2)(f) (extensive refurbishment of the premises to be carried out by the owner). Evidence was presented to show that the property is in need of extensive renovation.
For these reasons, I am satisfied that the tenant has failed to establish grounds for a rehearing. Although the tenant was not present at the first hearing, the hearing on 5 October 2023 provided him with ample opportunity to present his case and all relevant documents.
I also note that an appeal to the District Court was filed on 19 July 2023. If the tenant seeks another opportunity to argue the merits, the appeal hearing will be a suitable forum.

Order

The application for rehearing is dismissed.

Reasons

On 27 June 2023 the Tribunal made an order granting immediate possession of the premises to the landlord pursuant to section 65 of the Residential Tenancies Ac 1986 (eviction of squatters) (the Act).
On 28 July 2023 the tenant applied for a rehearing out of time on the grounds that he did not get notice of the hearing.
Section 105(1) of the Act 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 party applying for the rehearing must usually 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. Background
A brief summary of the background is as follows: • The previous owner of the property was McDara Trustees Limited. The tenant is the sole director and shareholder of this company. • The property was mortgaged to Wroxton Finance Limited on 28 April 2022 (the mortgagee). • On 19 November 2022, the tenant granted a residential tenancy to Mr Ee Kuoh Lau for a fixed term from 19 November 2022 to 19 November 2025. Although not clearly stated in the written agreement (which uses Tenancy Services’ standard form) the rent was $60,000.00 payable for renovation work on the property by the tenant. Additional terms provided that Mr Lau had possession except for 1 room, which the tenant could stay in until the renovation was completed. The tenancy could not be terminated without Mr Lau’s consent. Further, Mr Lau was given “first right” to purchase the property for an unspecified sum. • In about December 2022 the mortgagee exercised a power of sale after the mortgagor defaulted. • The landlord entered into a sale and purchase agreement with the mortgagee on 21 April 2023. The further terms of sale stated that the property was sold subject to existing tenancies or occupations, if any, including holding over by the mortgagor. • On or about 26 May 2023 the landlord became the registered owner of the property. • On 27 June 2023 the Tribunal granted the landlord possession of the property. The tenant was evicted on 21 July 2023. • Mr Lau has since lodged a caveat in reliance on the lease and has filed an application in the High Court for an order that the caveat not lapse.

Has a substantial wrong or miscarriage of justice occurred?

The Tribunal’s order of 29 July 2023 requested that the parties attend the rehearing application ready to discuss the merits of the tenant’s argument that he has a right of occupation. The parties were requested to bring any relevant documents. Two hours were allowed for the hearing.
The tenant says he did not have notice of the previous hearing. The Tribunal’s records show that notice was posted to the tenant’s address on 16 June 2023. The tenant says the lack of notice establishes that there has been a miscarriage of justice. In my view, however, the overall merits of the tenant’s arguments are relevant to whether or not there has, or may have been, a miscarriage of justice.
The tenant submitted that he had granted Mr Lau a tenancy and in turn Mr Lau had granted him a right of occupation. Mr Lau, who was permitted to give evidence, relied on the provision in the sale and purchase agreement which states that the property is sold subject to existing tenancies.
I note that this is not the first time Mr Lau has lodged caveats in response to mortgagee sales. An example is Westpac New Zealand Limited v Law [2012] NZHC 890. As noted in that case, the proviso that the property was sold subject to existing tenancies did not mean the mortgagee consented to existing tenancies. It meant the mortgagee did not warrant that the property was not subject to a lease.
The other main difficulty with the tenant’s position is that the mortgagee did not consent to the tenancy. The general principle under section 119 of the Land Transfer Act 1952, and now section 91 of the Landlord Transfer Act 2017, is that a lease only binds a mortgagee if they have consented to it (GP96 Limited v PVG Securities Trustee Ltd [2019] NZCA 325). The solicitors acting for the mortgagee confirm in a letter that the mortgagee was not advised of and did not consent to any lease. The landlord also says they were unaware of any tenancy.
It follows that the landlord purchased the property from the mortgagee free from any purported interest or estate deriving from the tenancy agreement (section 103 of the Land Transfer Act 2017).
Without the consent of the mortgagee, the tenant could not grant a tenancy to Mr Lau. In turn, Mr Lau had no lawful authority to grant a sub-tenancy. It is worth reiterating that a respondent to a section 65 application must not only show they have a right of occupation, but also that the right has been granted by a person having lawful authority to do so. Mr Lau has never been the registered owner of the property and had no standing to grant a right of occupation.
Further, this is not a case to which section 58 of the Act applies (mortgagee or other person becoming entitled to possession). The tenancy was not binding on the mortgagee to begin with. The provisions of section 58 (which can be seen as an exception to the doctrine of indefeasibility of title) can have no application where a valid tenancy has not been granted. Further, I have difficulty with the idea that this was a tenancy for residential purposes to which the Act applies – I doubt if there was ever any intention that Mr Lau would occupy the property as a place of residence.
Even if that is wrong, under section 58(1)(d) of the Act the landlord would in any event be entitled to give notice to end the tenancy pursuant to section 51(1)(a) (owner requires the premises as the principal place of residence for the owner or a member of the owner’s family) or section 51(2)(f) (extensive refurbishment of the premises to be carried out by the owner). Evidence was presented to show that the property is in need of extensive renovation.
For these reasons, I am satisfied that the tenant has failed to establish grounds for a rehearing. Although the tenant was not present at the first hearing, the hearing on 5 October 2023 provided him with ample opportunity to present his case and all relevant documents.
I also note that an appeal to the District Court was filed on 19 July 2023. If the tenant seeks another opportunity to argue the merits, the appeal hearing will be a suitable forum.

Tenancy Tribunal case 4601690 — Tenancy dispute at Unit/Flat 2, 13 Estelle Place, Farm Cove, Auckland 2012

At a glance

Claims & awards

Tenancy Tribunal case 4601690 — Tenancy dispute at Unit/Flat 2, 13 Estelle Place, Farm Cove, Auckland 2012

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