What was the outcome of Tenancy Tribunal case 4633495?

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

How much money was awarded in case 4633495?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4633495?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4633495?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9438953-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4633495?

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

How much money was awarded in case 4633495?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4633495?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4633495?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9438953-Tribunal_Order.pdf.

22 Sovereign Street, Flat Bush, Auckland 2019 Tenancy Tribunal Case 4633495 — Rent arrears

Order

The application for a rehearing is dismissed.
The order dated 11 August is confirmed. The termination and possession date in that order is amended to be 11.59 am on Thursday 28 September 2023.

Reasons

Both parties attended this remote teleconference rehearing consideration.
A brief history of the background to this matter was included in the original Tribunal order dated 11 August 2023. I have copied that to assist in consideration of this matter and to give some background; • Tony Roberts is the tenant. • Tony Roberts is also a director of AMJR & Co Ltd trading as ICS Property (“ICS”). • In February 2023, ICS entered into a property management agreement to manage the premises with the owner. • On 12 April 2023, Tony Roberts, in his personal capacity, entered into a tenancy agreement to rent the premises from ICS as the owners agent. • This resulted in Tony Roberts being the tenant in his personal capacity and ICS being property manager, of the same premises. I consider it is important for the purposes of this decision to keep Tony Roberts in his various capacities separate. • For reasons that are not apparent, nor relevant to my enquiry, the owner of the premises sent a letter to ICS on 10 July 2023 purporting to cancel the property management agreement with ICS. In his evidence, Tony Roberts said that the notice of termination of the property management authority was not accepted by ICS, as the letter did not give the appropriate notice required under the terms of the property management agreement. • The owner then entered into a property management agreement with Auckland Property Management Limited (“Auckland PM”) for the management of the premises. That agreement commenced on 7 July 2023. • The dispute between ICS, the owner and Auckland PM is ongoing. Suffice to say, Tony Roberts does not accept that Auckland PM has authority to lodge these proceedings before the Tribunal.”
In the Tribunal order dated 11 August 2023, the tenancy was terminated and the tenant bordered to pay rent arrears and reimburse the filing fee.
The tenant seeks a rehearing.
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. The tenant did not seek a rehearing based on the grounds of procedural error.
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.
In Jemma Trust v Rutherford (DC North Shore, CIV-2009-044-2056, 11 December 1999), the District Court quoted an extract from the Court of Appeal outlining the relevant considerations: The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite party on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial....While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling.
The availability of new evidence may not justify a rehearing if that evidence was available and could have been obtained for the original hearing, even if it is better evidence than that given at the original hearing.
In Mason v May Christchurch TT 1328/95, 30 August 1995 the Tribunal said that, before a rehearing will be granted on the grounds of new evidence, “an applicant has to show that reasonable diligence was used to produce all relevant evidence at the hearing, and there must be an explanation as to why the new evidence only came to light afterwards”.
Having proven that the evidence was not reasonably available to the applicant at the first hearing , the applicant must also show that the information that they wish to present could affect the outcome.
What is the new evidence?
The tenant has provided a rent summary for the period from 14 April 2023 to 21 September 2023. The tenant in the rent summary is shown as “Tony Roberts.” The landlord is referred to as “Andy Yip”. The rent summary shows that rent has been paid by the tenant throughout the tenancy and that there has never been any rent arrears. The summary shows that payments have been made by the tenant to “Cage” which I presume is s reference to Cage Trustees and to APM which I presume to be Auckland Property Management.
The tenant has provided an email from himself to “Melissa” who I assume to be an ICS Property Group (“ICS”) employee dated 15 September 2023. The email provides Melissa with a rent summary prepared by the tenant and asks her to review this against the payments received from the tenant.
The tenant provided a copy of an email response dated 16 September 2023 presumably from Melissa, although no author of the email is shown. The email states” We have checked the summary you have provided and this matches the rent payments you have made to us. I will send you a copy of your payment schedule shortly.”
The tenant also provided a spreadsheet recording payments from his bank account for rent.
In reply, the landlord says that the new evidence is evidence which would reasonably have been available to the tenant at the first hearing. Further, the landlord says that the evidence is not the best evidence that would have been available to the tenant. They suggest that a copy of a bank statement showing actual rental payments from the tenant, rather than a spreadsheet prepared by the tenant, would have carried more weight.
During the hearing, the Tribunal specifically asked the tenant why the new evidence was not available at the first hearing. The tenant replied that there was no reason why he couldn’t have asked for the evidence, but that it would not have been a full and accurate record.
The tenant is the sole director and shareholder of ICS. I consider it disingenuous of the tenant to say that the new evidence provided in support of this application would not have been available to him at the time of the first hearing. The tenant is required to use reasonable diligence to obtain the evidence.
No evidence has been provided by the tenant at this hearing to show circumstances that are exceptional or grounds that are compelling, which might have persuaded me to allow a rehearing on the basis of the new evidence which was reasonably available to him. As the court has stressed, the test for accepting evidence that would have been reasonably available is strict.
The evidence proffered by the tenant is not “fresh.” It would in my view have been available to the tenant with the use of reasonable diligence on his part. The application for a rehearing is dismissed. The order dated 11 August is confirmed. The termination and possession date in that order is amended to be 11.59 am on Thursday 28 September 2023.

Order

The application for a rehearing is dismissed.
The order dated 11 August is confirmed. The termination and possession date in that order is amended to be 11.59 am on Thursday 28 September 2023.

Reasons

Both parties attended this remote teleconference rehearing consideration.
A brief history of the background to this matter was included in the original Tribunal order dated 11 August 2023. I have copied that to assist in consideration of this matter and to give some background; • Tony Roberts is the tenant. • Tony Roberts is also a director of AMJR & Co Ltd trading as ICS Property (“ICS”). • In February 2023, ICS entered into a property management agreement to manage the premises with the owner. • On 12 April 2023, Tony Roberts, in his personal capacity, entered into a tenancy agreement to rent the premises from ICS as the owners agent. • This resulted in Tony Roberts being the tenant in his personal capacity and ICS being property manager, of the same premises. I consider it is important for the purposes of this decision to keep Tony Roberts in his various capacities separate. • For reasons that are not apparent, nor relevant to my enquiry, the owner of the premises sent a letter to ICS on 10 July 2023 purporting to cancel the property management agreement with ICS. In his evidence, Tony Roberts said that the notice of termination of the property management authority was not accepted by ICS, as the letter did not give the appropriate notice required under the terms of the property management agreement. • The owner then entered into a property management agreement with Auckland Property Management Limited (“Auckland PM”) for the management of the premises. That agreement commenced on 7 July 2023. • The dispute between ICS, the owner and Auckland PM is ongoing. Suffice to say, Tony Roberts does not accept that Auckland PM has authority to lodge these proceedings before the Tribunal.”
In the Tribunal order dated 11 August 2023, the tenancy was terminated and the tenant bordered to pay rent arrears and reimburse the filing fee.
The tenant seeks a rehearing.
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. The tenant did not seek a rehearing based on the grounds of procedural error.
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.
In Jemma Trust v Rutherford (DC North Shore, CIV-2009-044-2056, 11 December 1999), the District Court quoted an extract from the Court of Appeal outlining the relevant considerations: The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite party on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial....While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling.
The availability of new evidence may not justify a rehearing if that evidence was available and could have been obtained for the original hearing, even if it is better evidence than that given at the original hearing.
In Mason v May Christchurch TT 1328/95, 30 August 1995 the Tribunal said that, before a rehearing will be granted on the grounds of new evidence, “an applicant has to show that reasonable diligence was used to produce all relevant evidence at the hearing, and there must be an explanation as to why the new evidence only came to light afterwards”.
Having proven that the evidence was not reasonably available to the applicant at the first hearing , the applicant must also show that the information that they wish to present could affect the outcome.
What is the new evidence?
The tenant has provided a rent summary for the period from 14 April 2023 to 21 September 2023. The tenant in the rent summary is shown as “Tony Roberts.” The landlord is referred to as “Andy Yip”. The rent summary shows that rent has been paid by the tenant throughout the tenancy and that there has never been any rent arrears. The summary shows that payments have been made by the tenant to “Cage” which I presume is s reference to Cage Trustees and to APM which I presume to be Auckland Property Management.
The tenant has provided an email from himself to “Melissa” who I assume to be an ICS Property Group (“ICS”) employee dated 15 September 2023. The email provides Melissa with a rent summary prepared by the tenant and asks her to review this against the payments received from the tenant.
The tenant provided a copy of an email response dated 16 September 2023 presumably from Melissa, although no author of the email is shown. The email states” We have checked the summary you have provided and this matches the rent payments you have made to us. I will send you a copy of your payment schedule shortly.”
The tenant also provided a spreadsheet recording payments from his bank account for rent.
In reply, the landlord says that the new evidence is evidence which would reasonably have been available to the tenant at the first hearing. Further, the landlord says that the evidence is not the best evidence that would have been available to the tenant. They suggest that a copy of a bank statement showing actual rental payments from the tenant, rather than a spreadsheet prepared by the tenant, would have carried more weight.
During the hearing, the Tribunal specifically asked the tenant why the new evidence was not available at the first hearing. The tenant replied that there was no reason why he couldn’t have asked for the evidence, but that it would not have been a full and accurate record.
The tenant is the sole director and shareholder of ICS. I consider it disingenuous of the tenant to say that the new evidence provided in support of this application would not have been available to him at the time of the first hearing. The tenant is required to use reasonable diligence to obtain the evidence.
No evidence has been provided by the tenant at this hearing to show circumstances that are exceptional or grounds that are compelling, which might have persuaded me to allow a rehearing on the basis of the new evidence which was reasonably available to him. As the court has stressed, the test for accepting evidence that would have been reasonably available is strict.
The evidence proffered by the tenant is not “fresh.” It would in my view have been available to the tenant with the use of reasonable diligence on his part. The application for a rehearing is dismissed. The order dated 11 August is confirmed. The termination and possession date in that order is amended to be 11.59 am on Thursday 28 September 2023.

Tenancy Tribunal case 4633495 — Rent arrears at 22 Sovereign Street, Flat Bush, Auckland 2019

At a glance

Tenancy Tribunal case 4633495 — Rent arrears at 22 Sovereign Street, Flat Bush, Auckland 2019

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions