What was the outcome of Tenancy Tribunal case 4951453?

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

How much money was awarded in case 4951453?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4951453?

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

Where can I read the official tribunal order for case 4951453?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10737743-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4951453?

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

How much money was awarded in case 4951453?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4951453?

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

Where can I read the official tribunal order for case 4951453?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10737743-Tribunal_Order.pdf.

637 Ferry Road, Woolston, Christchurch 8023 Tenancy Tribunal Case 4951453 — Rent arrears

Order

The application for rehearing is dismissed.
I direct the bailiffs to serve this order on Mr Fendall personally at 637 Ferry Road.

Reasons

Both parties attended a rehearing hearing by telephone.
On 14 August 2024 the Tribunal made an order for rent arrears and terminating the tenancy.
On 16 August 2024, Mr Fendall applied for a rehearing on the grounds that a miscarriage of justice had occurred. In particular, he claimed that the Tribunal had not properly considered his employment and that re-direction had been established from his benefit to pay current rent.
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. 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 Wellington City Council v McMillan [2003] DCR 50, the District Court 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: [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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Mr Fendall has failed to establish the grounds for a rehearing.
Rent was more than 21 days in arrears when the application was filed and was more than 21 days in arrears at the date of the hearing on 14 August 2024.
Where rent is 21 days in arrears at the date of the application and hearing, the Tribunal must make either a final or conditional termination order.
Before making a conditional termination order, the Tribunal must be satisfied that the tenant can pay the debt within a specified period and is unlikely to commit any further breach.
I considered whether it was appropriate to exercise my discretion to make a conditional termination order, and concluded that it was not, for the following reasons: a. The evidence at the first hearing was that Mr Fendall had applied for a hardship withdrawal from his Kiwisaver. There was no documentary evidence regarding that and no certainty around when, or if, that would be approved. b. Mr Fendall had arranged for the rent to be paid as a redirection from his benefit. None of those payments had been made by the date of the hearing. Mr Fendall advised that his benefit is $521.47 per week. His rent is $520.00 per week. Fendall’s residual income from his benefit after rent is redirected is $1.47 per week. Redirections can be changed on instructions from the person entitled to the benefit (Mr Fendall), not the landlord. c. Mr Fendall’s bail conditions mean that he is unable to carry out his regular employment, unless and until his bail conditions are varied. Mr Fendall’s employer is giving him “odd jobs” to “get by” in the meantime. There was no evidence of: i. the amount he is receiving from his employer (or the effect of those payments on his benefit), ii. the likelihood of bail conditions being varied, and iii. what his projected income would be if the conditions are varied. d. There was no corroborative evidence about payments from his employer at all.
Mr Fendall’s complaint is that I did not properly consider his employment position. The evidence presented today was no more detailed that that given at the first hearing. There was no corroboration from his employer. More significantly, Mr Fendall’s complaint is that I am wrong in my findings of fact and application of the law. That is not grounds for a rehearing.
Mr Fendall paid the arrears in full on 19 August 2024 (after the first hearing and after the order terminating the tenancy). Mr Fendall’s argument appeared to be that a rehearing should be granted because he has now demonstrated that the arrears and current rent can be repaid. The time for making those payments or providing evidence that the payments could be made was before the first hearing on 14 August 2024. That evidence should have been reasonably available to Mr Fendall at the time of the first hearing if the payment was made on 19 August 2024.
Even if the arrears had been paid in full before the first hearing, I would have had limited discretion to refuse to terminate the tenancy. I would have had to be satisfied that the arrears had been paid, the landlord had been compensated for any loss arising from the breach and that it is unlikely that the tenant would commit a further breach of this kind (emphasis added). See s55(2) RTA.
For the reasons set out in 12(b) to (d) above, I could not have been satisfied that it is unlikely that Mr Fendall would commit a further breach of this kind. I would have been required to terminate the tenancy, even if the arrears had been paid before the first hearing on 14 August 2024.
Mr Fendall spoke of the difficulties he will face, with his bail conditions, if the tenancy is terminated. That is not something that I can consider when deciding whether to make a termination order. I allowed Mr Fendall as much latitude as I reasonably could by making the termination date 28 August 2024 (14 days after the order was issued). Usually, a landlord is granted immediate termination when rent is 21 days in arrears.
Mr Fendall did not point to any error in the Tribunal’s process or evidence that was not reasonably available to him before the first hearing (and which may have altered the outcome). The application for rehearing is dismissed.
Mr Fendall currently has limited means of communication available to him. For that reason, I direct the bailiffs to serve this order on him personally at 637 Ferry Road.

Order

The application for rehearing is dismissed.
I direct the bailiffs to serve this order on Mr Fendall personally at 637 Ferry Road.

Reasons

Both parties attended a rehearing hearing by telephone.
On 14 August 2024 the Tribunal made an order for rent arrears and terminating the tenancy.
On 16 August 2024, Mr Fendall applied for a rehearing on the grounds that a miscarriage of justice had occurred. In particular, he claimed that the Tribunal had not properly considered his employment and that re-direction had been established from his benefit to pay current rent.
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. 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 Wellington City Council v McMillan [2003] DCR 50, the District Court 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: [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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Mr Fendall has failed to establish the grounds for a rehearing.
Rent was more than 21 days in arrears when the application was filed and was more than 21 days in arrears at the date of the hearing on 14 August 2024.
Where rent is 21 days in arrears at the date of the application and hearing, the Tribunal must make either a final or conditional termination order.
Before making a conditional termination order, the Tribunal must be satisfied that the tenant can pay the debt within a specified period and is unlikely to commit any further breach.
I considered whether it was appropriate to exercise my discretion to make a conditional termination order, and concluded that it was not, for the following reasons: a. The evidence at the first hearing was that Mr Fendall had applied for a hardship withdrawal from his Kiwisaver. There was no documentary evidence regarding that and no certainty around when, or if, that would be approved. b. Mr Fendall had arranged for the rent to be paid as a redirection from his benefit. None of those payments had been made by the date of the hearing. Mr Fendall advised that his benefit is $521.47 per week. His rent is $520.00 per week. Fendall’s residual income from his benefit after rent is redirected is $1.47 per week. Redirections can be changed on instructions from the person entitled to the benefit (Mr Fendall), not the landlord. c. Mr Fendall’s bail conditions mean that he is unable to carry out his regular employment, unless and until his bail conditions are varied. Mr Fendall’s employer is giving him “odd jobs” to “get by” in the meantime. There was no evidence of: i. the amount he is receiving from his employer (or the effect of those payments on his benefit), ii. the likelihood of bail conditions being varied, and iii. what his projected income would be if the conditions are varied. d. There was no corroborative evidence about payments from his employer at all.
Mr Fendall’s complaint is that I did not properly consider his employment position. The evidence presented today was no more detailed that that given at the first hearing. There was no corroboration from his employer. More significantly, Mr Fendall’s complaint is that I am wrong in my findings of fact and application of the law. That is not grounds for a rehearing.
Mr Fendall paid the arrears in full on 19 August 2024 (after the first hearing and after the order terminating the tenancy). Mr Fendall’s argument appeared to be that a rehearing should be granted because he has now demonstrated that the arrears and current rent can be repaid. The time for making those payments or providing evidence that the payments could be made was before the first hearing on 14 August 2024. That evidence should have been reasonably available to Mr Fendall at the time of the first hearing if the payment was made on 19 August 2024.
Even if the arrears had been paid in full before the first hearing, I would have had limited discretion to refuse to terminate the tenancy. I would have had to be satisfied that the arrears had been paid, the landlord had been compensated for any loss arising from the breach and that it is unlikely that the tenant would commit a further breach of this kind (emphasis added). See s55(2) RTA.
For the reasons set out in 12(b) to (d) above, I could not have been satisfied that it is unlikely that Mr Fendall would commit a further breach of this kind. I would have been required to terminate the tenancy, even if the arrears had been paid before the first hearing on 14 August 2024.
Mr Fendall spoke of the difficulties he will face, with his bail conditions, if the tenancy is terminated. That is not something that I can consider when deciding whether to make a termination order. I allowed Mr Fendall as much latitude as I reasonably could by making the termination date 28 August 2024 (14 days after the order was issued). Usually, a landlord is granted immediate termination when rent is 21 days in arrears.
Mr Fendall did not point to any error in the Tribunal’s process or evidence that was not reasonably available to him before the first hearing (and which may have altered the outcome). The application for rehearing is dismissed.
Mr Fendall currently has limited means of communication available to him. For that reason, I direct the bailiffs to serve this order on him personally at 637 Ferry Road.

Tenancy Tribunal case 4951453 — Rent arrears at 637 Ferry Road, Woolston, Christchurch 8023

At a glance

Tenancy Tribunal case 4951453 — Rent arrears at 637 Ferry Road, Woolston, Christchurch 8023

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions