What was the outcome of Tenancy Tribunal case 4936255?

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

How much money was awarded in case 4936255?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4936255?

The dispute type was not classified.

Where can I read the official tribunal order for case 4936255?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10905144-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4936255?

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

How much money was awarded in case 4936255?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4936255?

The dispute type was not classified.

Where can I read the official tribunal order for case 4936255?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10905144-Tribunal_Order.pdf.

60 Matlock Street, Woolston, Christchurch 8062 Tenancy Tribunal Case 4936255 — Tenancy dispute

Order

The application for rehearing is dismissed.
Tracy Anne Page is entitled to possession of the premises at 60 Matlock Street, Woolston, Christchurch 8062 immediately.

Reasons

Both parties attended a rehearing hearing on 26 September 2024. Both parties were represented by legal counsel.
On 20 August 2024 the Tribunal made an order granting possession of the premises to Mrs Page (through her listing agent, Ray White).
On 5 September, Mr & Mrs Richardson applied for a rehearing on the grounds that they had not received notice of the hearing and that there was a defence which should be heard to the application for a possession order. The defence was that this is not a tenancy arrangement and that they have an equitable interest in the property.
Mr & Mrs Richardson indicated that they did not want the Tribunal to determine their application on the papers, so the Tribunal was required to have a hearing to decide whether to grant a rehearing of the original matter. See Xpert Management Solutions Ltd v Bravo [2015] NZDC 1506, 9 February 2015, Judge de Ridder.
I issued a directions order on 5 September 2024, which noted: “3.The application for rehearing has not been made within 5 working days of the date of the Order. So, the first consideration at the rehearing hearing will be whether to grant an extension of time for making the application. See Applicants v Feng Gao, Huanhong Li [2022] NZTT 4342235....
If a rehearing is granted, the original application for a possession order will be heard by me at the same time as the rehearing application. See ss64 & 65 RTA for the grounds on which the Tribunal may make a possession order.” Timeline – Procedure
Before considering whether an extension of time should be granted, it is useful to summarise the timeline. The evidence and the records from the Tribunal file show: a. Notice to Terminate Tenancy delivered by courier on 3 April 2024. The tenant claims not to have received this, but the landlord provided photographs of the confirmation of delivery. b. The Tribunal file records that Tenancy Services sent the Notice of Hearing and associated documents to Mr & Mrs Richardson by post on 2 August 2024, to the tenancy address. There is no record of the post being returned to Tenancy Services. However, the tenants say that they did not receive the correspondence from Tenancy Services. The Notice of Hearing recorded that there would be a hearing on 20 August 2024. c. Mr & Mrs Richardson lodged a caveat against the title to the property on 20 August 2024. They claim that they have a equitable interest in the property. d. The Tribunal file shows that the Order dated 20 August 2024 was also sent to Mr & Mrs Richardson by post, to the tenancy address on 20 August 2024. There is no record of the posted item being returned. e. Mrs Richardson acknowledged that she received the Order by post and thought that would have been about 22 August 2024. f. Mr & Mrs Richardson sought advice on the possession order on 26 August 2024. g. Five working days from 20 August 2024 would have been 27 August 2024. h. Mr & Mrs Richardson’s solicitor contacted the Tribunal regarding a rehearing on 4 September and submitted a rehearing application on 5 September 2024.

Should There be an Extension of Time for Making the Rehearing Application?

Section 105(2) Residential Tenancies Act provides that an application for rehearing must be made within five working days of the date of the order. As noted in Applicants v Feng Gao, Huanhong Li [2022] NZTT 4342235:
Importantly, s 105(2) of the RTA provides that applications for a rehearing must be filed within five working days of the date of the order. This time limit is set for good reason, so as to ensure finality of Tenancy Tribunal orders and certainty of the position from the point of view of both parties.
Section 105(2) of the RTA also allows for the Tribunal to give further time for the filing of an application for a rehearing. This recognises the rare situation where there may be good grounds for a rehearing application being filed late, for example, where the decision went to the wrong address (and therefore did not come to the attention of the applicant).”
Mr & Mrs Richardson received the possession order and had the opportunity to take advice before the timeframe for submitting a rehearing application expired.
They claim that Mr Richardson was in hospital around that time, and they were distracted. But they have not provided any medical evidence in relation to that. There was no substantive explanation for the delay in the period from 26 August 2024 to 4 September 2024.
Instructions for a rehearing are included on the back of the Order dated 20 August 2024. The rehearing application was a straightforward document. All that was required, was for Mr and Mrs Richardson to fill in the form, claiming that they did not receive notice of the hearing. Mr & Mrs Richardson could have made an application within time. As noted in Applicants v Feng Gao, Huanhong Li [2022] NZTT 4342235 [26]: “They could have lodged their application for a rehearing then but did not do so. They cannot be entitled to extend time merely because they have been mistaken about what form that application needed to take or were unaware of any time limits.”
I decline to extend the time for applying for a rehearing. In doing so, I also take account of my findings (below) that even if a rehearing was granted, it would have little prospect of success. If an extension of time had been allowed – has the tenant established the grounds for 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.
In Emshoff v McInnes (DC Auckland, TT 1038/89, 30 October 1989), the District Court held that, where a respondent does not appear at the original hearing, the relevant considerations are: a. Is there a reasonable excuse for the non-appearance? b. Did they act promptly? c. Is there a defence which ought to be heard? d. Will the applicant suffer hardship if a rehearing is granted?
For the following reasons Mr & Mrs Richardson have failed to establish the grounds for a rehearing.
Mr & Mrs Richardson claim that they did not receive notice of the hearing on 20 August 2024. The documents were sent by Tenancy Services on 8 August and were not returned. Service by post is deemed to have occurred on the fourth working day after the document was posted. See s136A(6) RTA.
Mrs Richardson said that mail often goes missing and is sometimes thrown into a nearby creek. She said that the camera directed at the mailbox does not work, so she could not provide evidence of the mail being removed. The Richardson’s also say that they did not receive the termination notice, notwithstanding the evidence of the delivery being completed and a statement from the Real Estate agent that she also delivered a copy.
I also note that the caveat was lodged against the title on 20 August 2024, the day of the hearing.
Having regard to the totality of the evidence, I am not satisfied, on the balance of probabilities, that Mr & Mrs Richardson did not receive notice of the hearing. That is, I am not persuaded that there is a reasonable excuse for the non- appearance at the first hearing.
For the reasons set out above regarding the extension of time, I am not persuaded that Mr & Mrs Richardson acted promptly on receipt of the 20 August Order.
Mr & Mrs Richardson’s primary defence to the application for a possession order, is that they have an equitable interest in the property. For the reasons set out below, that is not a valid defence to an application for a possession order. Put another way, even if a rehearing was granted, the outcome would be the same; a possession order would be granted.
The other defence raised, was that Mr & Mrs Richardson did not receive the termination notice. However, the documentary evidence satisfies me that, it is more likely than not, that the notice was delivered to the premises.
Finally, I have regard to the position of the applicant and the ongoing prejudice to her of the matter dragging on. Mrs Page is the registered, legal owner of the premises and is entitled to possession.
The application for rehearing is dismissed. If a Rehearing was Granted – Do the Tenants have a Defence to the Application for a Possession Order?
At the hearing on 26 September 2024, I effectively did rehear Ms Page’s application for a possession order. Before the hearing, I indicated to the parties that they should be prepared to address both s64 ad 65 of the RTA.
Mr & Mrs Richardson maintain that there is no tenancy, and they have an equitable interest in the property. I have no jurisdiction to consider and make no finding in relation to any equitable interest. Even if Mr & Mrs Richardson’s assertions regarding the property are ultimately accepted by a higher jurisdiction, Mrs Page is entitled to a possession order from this Tribunal.
If I accept that there is no tenancy place, I must grant a possession order under s65 RTA as Mrs Page (as the legal owner of the property) has revoked her permission for Mr & Mrs Richardson to remain at the property. See James Alan Wallath v Alan John Wallath [2021] NZDC 14323.
Similarly, Owner v Occupier [2022] NZTT 4325433 involved an application for a possession order. The occupier argued there was a constructive trust claim that they could make against the owner. The possession order was granted, because all the tenants defence amounted to was a potential future claim.
In the Owner v Occupier decision, the Tribunal referred to a decision of the High Court and stated: “44.I note the High Court decision of Willigers v Churchill Fishing International Limited [2020] NZHC 2212. In that case the High Court needed to consider an application to stay a District Court decision, dismissing an appeal of a decision from the Tenancy Tribunal. One of the arguments presented in the High Court for Mr Willigers, for granting a stay of a possession order, was on the basis that the Tenancy Tribunal had not considered evidence that would have (it was submitted) shown a resulting trust to have arisen. In response to that submission the High Court observed: [14] ... Ms Haszard argued that the Tribunal was wrong not to consider the evidence that Mr Willigers had an interest by way of resulting trust in the property. But even if this is established I am unclear why that would give rise to right of possession to the property, certainly possession in the nature of a tenancy. Any claim to an equitable interest will need to be established in the High Court first before the question of equitable remedy is addressed, and I note that only a percentage interest is sought by Mr Willigers. Effective relief could still be granted even if the present claims in relation to possession fail.
What I interpret the High Court to saying, was that even if Mr Willigers did have a claim to a resulting trust, that would not support an argument that he should have possession of the premises, because such a claim first needed to be established in the High Court.
Such is the position that [The occupier/s] finds herself. She may have a claim to a constructive trust, and I am not expressing any view of the merits one way or the other, but that is not enough for her to be in possession of the premises. [The occupier/s] must first establish a constructive trust to exist by way of a ruling from the High Court.”
The decisions in Owner v Occupier and Willigers are directly relevant to this application.
Tracy Anne Page is entitled to possession of the premises at 60 Matlock Street, Woolston, Christchurch 8062 immediately. The stay granted on 5 September 2024 is no longer effective and the 20 August 2024 Order can be enforced.

Tenancy Tribunal case 4936255 — Tenancy dispute at 60 Matlock Street, Woolston, Christchurch 8062

At a glance

Claims & awards

Tenancy Tribunal case 4936255 — Tenancy dispute at 60 Matlock Street, Woolston, Christchurch 8062

At a glance

Claims & awards

Order

Reasons

Should There be an Extension of Time for Making the Rehearing Application?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Should There be an Extension of Time for Making the Rehearing Application?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions