What was the outcome of Tenancy Tribunal case 4826819?

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

How much money was awarded in case 4826819?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4826819?

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

Where can I read the official tribunal order for case 4826819?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10416221-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4826819?

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

How much money was awarded in case 4826819?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4826819?

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

Where can I read the official tribunal order for case 4826819?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10416221-Tribunal_Order.pdf.

1A Mears Place, Epsom, Auckland 1023 Tenancy Tribunal Case 4826819 — Rent arrears

Order

The application for rehearing is dismissed.

Reasons

The Tribunal must consider an application for rehearing filed by the landlord. A telephone hearing was convened on 5 June 2024 to consider that application.

BACKGROUND

This is an unusual case, and I summarise the background briefly for the purpose of this rehearing consideration. a. There is no dispute that there was a valid tenancy, the original 2019 tenancy agreement records the tenant as Mark Hoyle. b. However more recently, Mark moved out, but his brother stayed living in the premises. c. Mark applied to the Tribunal to have his bond refunded, but given there was a continuing tenancy, the Tribunal (Adjudicator Merrett) declined that application. The Adjudicator made a finding of fact that Mr Hoyle’s tenancy had not ended. d. On 4 March 2024 the landlord applied for an order terminating the tenancy on the basis that Mark had moved out, and that only Phillip was remaining in the tenancy. e. In a decision from 22 March 2024, that application was dismissed. I determined that the tenancy had not ended, and that no grounds to terminate were established. f. The landlord applied for a rehearing. A telephone hearing to consider the rehearing request was convened on 5 June 2024.

LANDLORDS POSITION

Mr Li states that a rehearing should be granted, and in particular: a. There is new evidence, which shows that Mark is the only tenant. Mr Li notes that he had not provided the original tenancy agreement, and some other information showing Mark as the tenant, such as a pre- tenancy credit check, but that has now been provided. Therefore Mark would be the sole tenant. b. Mark has abandoned the tenancy as he moved out without notice. c. Mr Li further states that the rent is often overdue, and the garden appears overgrown, again suggesting that the premises have been abandoned.

TENANTS POSITION

Mark provided writing submissions in advance. In short, Mark’s position is that the rehearing application should be dismissed. In particular, there has been no potential substantial wrong or miscarriage of justice, because: a. It is disputed that the tenancy has been abandoned. b. It is disputed that the garden is not attended, Phillip is still living in the premises and he attends the premises every few weeks.
In his written submission, Mark also noted: a. The Tribunal reached the decision on the basis of the evidence available. b. The Tribunal in two decisions (the decision of Adjudicator Merrett and myself) had concluded that Mark was the tenant in a continuing tenancy despite not living there. c. Any evidence the landlord now wants to produce around arrears is not fresh evidence, it would have been known to the landlord at the previous hearing.

RELEVANT LAW

Section 105 of the Residential Tenancies Act 1986 relates to rehearings. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
The applicant 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.”
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 is 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.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.

ANALYSIS

I have set out the relevant law that applies to rehearings above. In short, re- hearings are a safety measure should something have gone wrong with the hearing, normally on a procedural basis. However the landlord has not identified anything that has gone wrong with the hearing that would support a rehearing being granted.
Certainly, the landlord has now provided a copy of the original tenancy agreement, that confirms Mark is the original tenant. But that does not take the evidential picture very far, because in my original decision, I had accepted that the original agreement was either with Mark as the sole tenant, or Mark and Philip as cotenants. While we can now be confident that the original tenant was Mark, that would not change the outcome. In my original order I discussed the situation if Mark was the sole tenant, as follows:
But if Mark was the sole tenant, then again just because he has moved out, does not in law bring the tenancy to an end. The obligations of the tenant (Mark) are set out in section 40 of the RTA. That requires that the tenant “ensure that the premises are occupied principally for residential purposes” and on the evidence Mark has done that. The law does not require that Mark occupy the premises for residential purposes, only that they be occupied for residential purposes, and with Phillip living there this obligation is met.
There is no reason in law why someone cannot rent residential premises and not live there. In fact that is not particularly uncommon in New Zealand. This means that Mark could continue to be the tenant despite not living in the premises.
To that extent, I cannot see any procedural issues that arise now knowing that the original tenant was in fact Mark.
The landlord has provided further information, but I am not persuaded that the information could not have been provided at the time of the original hearing. The law does not allow for hearings to be granted simply because a party provides new information to the decisionmaker, that information would only support a rehearing if it was of relevance, and it was the information that the party could not reasonably have provided at the original hearing. That is not the situation here. I am sure that if the landlord had made reasonable efforts, that information could all have been provided at the original hearing.
I can see no grounds to approve a rehearing, and it is declined.
I will however observe, that even if a rehearing was to be approved, the outcome is extremely unlikely to be any different. The landlord’s position is that the tenancy has been abandoned, and seeks an order from the Tribunal terminating the tenancy on that basis.
The Tribunal can order a termination of the tenancy on the grounds that the premises have been abandoned, which is allowed under section 61 of the Residential Tenancies Act 1986 (RTA), which holds: 61 Abandonment of premises (1) On the application of the landlord, the Tribunal may make an order terminating a tenancy where it is satisfied that the tenant has abandoned the premises and the rent is in arrear.
Accordingly, in order to find there grounds to order a termination on the basis of abandonment, two factors must be confirmed, that is: a. The tenant has abandoned the premises; and b. The rent is in arrears
I find as a matter of fact, that the tenant has not abandoned the premises. Mark not living in the premises, is not of itself abandonment. It is absolutely clear that Mark wants the tenancy to continue, and the tenancy continues to be used by Philip. Mark confirmed that at the hearing today. As I noted in my original order, the law does not require that the tenant live in the premises, only that the premises be used for residential purposes, and that is met by Philip living in the property. In the absence of the premises being abandoned, there could be no order made terminating the tenancy on the ground of abandonment.
The landlord states that the rent is often paid late. That may be the case, but that of itself would not be grounds to terminate the tenancy for abandonment.
If the landlord finds that the rent is more than 21 days in arrears, then he can apply for a termination of the tenancy under section 55, or if a 14 day notice has been issued to remedy rent arrears less than 21 days in arrears, then an application can be filed for termination under section 56. But that is not the issue before me.
Similarly, if the landlord considers that the gardens are overgrown, and work is required by the tenant to keep those gardens tidy, then there are other mechanisms in the RTA where that can be pursued.
I find by a comfortable margin that this is a continuing tenancy, it is not being abandoned, there are no grounds to approve a rehearing.
The application for rehearing is accordingly dismissed.

Tenancy Tribunal case 4826819 — Rent arrears at 1A Mears Place, Epsom, Auckland 1023

At a glance

Tenancy Tribunal case 4826819 — Rent arrears at 1A Mears Place, Epsom, Auckland 1023

At a glance

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS POSITION

TENANTS POSITION

RELEVANT LAW

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS POSITION

TENANTS POSITION

RELEVANT LAW

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions