Published tribunal order
Tenancy Tribunal case 4979069 — Rent arrears at 326 Te Toro Road, Pollok, Pollok 2684
Decided 15 May 2025 · Published 15 May 2025 · Application 4979069
Landlord favoured
- Rent arrears
- Exemplary damages
- Harassment
Order
- The Tribunal declares that Craig Bowler has an enforceable award in his favour for the sum of $4,799.86 against Judith Rose Cunniffe.
- The Tribunal declares that Judith Rose Cunniffe has an enforceable award in her favour for the sum of $5,970.44 against Craig Bowler.
- The Tribunal notes that Craig Bowler has paid $5,778.44 to Judith Rose Cunniffe from monies held in Court, in part satisfaction of the award in her favour.
- The landlord’s and tenant’s applications for rehearing are dismissed.
Reasons
- The landlord attended the hearing yesterday by telephone. I called the tenant’s number in the hope that someone might answer who could speak on behalf of her estate, the tenant now being deceased. This was unsuccessful.
- On 7 March 2025 the Tribunal (Mr Edison) made an order replacing its previous order of 29 August 2024 in application 4587354, which had itself replaced an order dated 11 April 2024.
- The 7 March 2025 order awarded rent arrears to the landlord of $4,772.86. The 29 August 2024 order had awarded the tenant compensation of $5,970.44. The landlord was therefore ordered to pay the net award of $1,170.58. The bond was refunded to the tenant on the basis that she was a net judgment creditor.
- Both parties applied for a rehearing on 12 March 2025.
- After listening to the landlord and reviewing the information in the file, I record the following additional background: • On 11 April 2024 the Tribunal (Mr Tam) made orders in favour of the tenant for breach of quiet enjoyment, exemplary damages for issuing a trespass notice purporting to terminate the tenancy (the landlord reiterated that he still disputes this finding and asked me to record this) and exemplary damages for harassment. The tenant was awarded $5,520.44. • The tenant started an enforcement process. The bailiff attended on the landlord for the purpose of executing the award. The landlord said he would pay the amount awarded into Court and the bailiff said he must apply for a stay within 7 days. The landlord says the money was paid into Court but was paid to the tenant after 2 days. • The landlord paid a total of $5,778.44 into Court on 1 August 2024. The money was released to the creditor on 5 August 2024. A stay was granted on 6 August 2024. • On 29 August 2024 the Tribunal (Mr Tam) amended and replaced the 11 April 2024 order and dismissed the parties’ rehearing applications. The tenant was awarded $5,970.44.
- The landlord says he informed me of the payment into Court at the hearing on 20 February 2025, and that it had been released to the tenant. I have no recollection of this. I was aware of a payment into Court having been made, but not that any monies had been disbursed to the tenant.
- In the order dated 29 August 2024, the Tribunal (Mr Tam) noted that the landlord had paid monies into Court in response to the tenant commencing enforcement proceedings. The Tribunal directed that the monies paid by the landlord to Collections were to remain with the Court pending disposal of the landlord’s application in 4979069 (this application). Therefore, the Tribunal seems to have been unaware that any monies paid into Court had been disbursed in satisfaction of the 11 April 2024 award. Relevant Law
- Section 105(1) of the 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”.
- 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 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.
Has a substantial wrong or miscarriage of justice occurred?
- As discussed with the landlord, he is not really seeking a rehearing. The proceedings have been fully heard. He has a strong sense of grievance because he believed the money paid into Court would be held until the next Tribunal hearing. I do not know enough about the process for payments into Court to assess whether Collections was entitled to release money to the tenant.
- There is an issue whether the Tribunal has jurisdiction, on a rehearing application, to order that the tenant repay monies disbursed by Collections. These were funds paid into Court to meet the award that had been made at the time. It is not a question of correcting a clerical or numerical error in the order. Even if there is jurisdiction, which I doubt, I am not satisfied the Tribunal can safely conclude that the payment was wrongly made or direct the tenant to repay monies received from Collections.
- Ultimately, I view this as an enforcement matter. The landlord has an enforceable award for $4,799.86. The tenant has an enforceable award for $5,970.44. If both parties were to comply with their obligations to discharge the award against them, then the landlord would owe a net amount of $1,170.58. The tenant has been paid most of what she was awarded. The landlord remains at liberty to enforce the award made in his favour.
- It is appropriate to issue a declaration confirming that each award is separately enforceable. However, in my view there are no grounds to grant a rehearing because there was no mathematical error on the face of the order. The Tribunal’s procedures have not miscarried.
- As noted above, the tenant also applied for a rehearing of the Tribunal’s order of 7 March 2025. She said the Tribunal had failed to properly consider the inaccuracies in the landlord’s claim and the effect of the order was that she had to pay rent twice.
- I carefully considered all the information in the files of both applications and gained the best understanding I could. The tenant’s complaint really is that the Tribunal came to the wrong decision. The law is clear that this does not justify a rehearing.