Published tribunal order
Tenancy Tribunal case 5418168 — Tenancy dispute at 66 Grove Street, The Wood, Nelson 7010
Decided 26 March 2026 · Published 26 March 2026 · Application 5418168
Landlord favoured
Order
- The application for rehearing is dismissed.
- The Order of 13 January 2026 is amended to allow Kirsten Avon Jane Simister- Brown to remain at the premises until 7 May 2026 and return possession of the 66 Grove Street, The Wood, Nelson 7010 on 7 May 2026 on condition that Kirsten Avon Jane Simister-Brown pays $150.00 to Diane Simister on 26 March, 2 April, 9 April, 16 April, 23 April and 30 April 2026.
- In the event any of the above payments of $150.00 are missed after 1 working day from their due dates, vacant possession of 66 Grove Street, The Wood, Nelson 7010 will return to Diane Simister immediately.
Reasons
- Both parties attended the hearing to consider the rehearing application filed by the respondent.
- On 13 January 2026 the Tribunal made a possession order under section 65 of the Residential Tenancies Act 1986 (‘RTA’) in favour of the applicant to the proceedings Diane Simister (‘Diane’).
- On 20 January 2026, Kirsten Avon Jane Simister-Brown (‘Kirsten’) applied for a rehearing on the grounds that she is not a squatter or trespasser occupying the premises at 66 Grove Street, The Wood, Nelson 7010.
- 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.
- 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: a rehearing is not an alternative to an appeal. Furthermore, a rehearing will not be granted just because a party is unhappy with the decision.
- Kirsten submits that she always considered the premises her home; Kirsten see herself as conservator and steward of the property. Kirsten says that the property had effectively been abandoned from 2005 to 2021 when she moved into the premises from February 2021 to present. Kirsten says she has maintained and improved the property over the years and her mother Diane has benefitted from her residency. Kirsten’s son Jet has special needs and they have strong family connection with the house which is also invaluable to Jet’s wellbeing. In the alternative, Kirsten requests a fair amount of time to move out, wondering why it is not possible to negotiate a temporary arrangement for her continued occupancy if the property is for sale.
Has a substantial wrong or miscarriage of justice occurred?
- For the following reasons, Kirsten has failed to establish the grounds for a rehearing.
- There are no evidence nor materials adduced which might affect the outcome of the previous hearing and my order of 13 January 2026. There has been no error of law in granting possession in favour of Diane as the legal owner of the premises pursuant to section 65 RTA.
- Section 65 RTA provides: (1)Where, on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person, the Tribunal shall make a possession order granting possession of the premises to the applicant. (2)... (3)To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
- The certificate of title of the residential premises at 66 Grove Street, The Wood, Nelson 2010 shows that the legal proprietor of the property is Diane Kathleen Simister, namely the applicant in these proceedings.
- Diane said that sometime in October or November 2021, Kirsten had let herself into the premises without her permission and has been residing in the premises ever since.
- Diane is adamant that Kristen has not been given permission by her to occupy the residential premises.
- Kirsten however says that her mother Diane has told others that she was welcome to live at the premises which in effect, Diane has benefitted from her residency of the premises.
- Even if Kirsten’s assertion of being welcomed to live at the premises in February 2021 is accepted, Diane has subsequently withdrawn her permission for Kirsten to occupy and revoked Kirsten’s licence to occupy on 23 December 2021 through Diane’s lawyer’s letter to Kirsten to be out of the property at 66 Grove Street, Nelson by 12pm Friday 28 January 2022.
- Kirsten says that she never received the letter dated 23 December 2021 issued by STEVENS ORCHARD LAWYERS LIMITED.
- However, by virtue of these proceedings filed herein, it is clear that Kirsten’s permission to remain at the premises has been firmly revoked. As legal owner, Diane was entitled to revoke any licence to occupy previously granted to Kirsten (which Diane maintains she has not).
- With the licence to occupy, or previously implied permission to occupy the premises revoked by Diane, the Tribunal must consider the current application made under section 65 RTA.
- There remains nothing before me to indicate that a residential tenancy agreement is in place between the parties; Kirsten does not pay rent in exchange of a right to occupy the premises.
- Notwithstanding the absence of a residential tenancy agreement between the parties, section 65(3) RTA makes it clear that the Tenancy Tribunal has jurisdiction to grant a possession order in favour of the applicant provided that the requirements of section 65(1) RTA are met.
- As legal owner of the premises, the applicant is prima facie entitled to possession of the premises. The onus then shifts on the respondent to satisfy the Tribunal that she is in possession of the premises pursuant to a right of occupation granted by the legal owner of the premises.
- The respondent has not produced any material to satisfy me that she is in possession of the premises pursuant to an unrevoked right of occupation granted by the legal owner of the premises.
- In Sergeant v Nigro [2019] NZHC 328 Gordon J held: [91] The wording of s 65 requires the Tribunal to be satisfied that the applicant is “entitled” to possession. The fact that there is an extant claim challenging that entitlement does not change the present position. Similarly, Mr Sergeant’s undetermined claim as to his rights in respect of the property does not change the position that the legal owners have given him notice to vacate. ... [94] It is not open to the Tribunal to consider the fact of a claim or the contents of the claim in another court when deciding if the trustees were entitled to possession and/or if Mr Sergeant was in possession as a squatter or trespasser or otherwise than pursuant to any right of occupation granted to him. ... [104]... As noted, once the statutory pre-requisites under s 65 are satisfied, it is mandatory for the Tribunal to make an order. Accordingly, the existence of alternative remedies is irrelevant.
- Following Sergeant, once the statutory pre-requisites under s 65 are satisfied, it is mandatory for the Tribunal to make an order for possession to the applicant. Any existence of alternative remedies by the respondent at different forums challenging Diane’s inheritance of the property are irrelevant.
- My previous order for possession under section 65 RTA to Diane stands.
- Having foreshadowed my above decision, the parties reached an understanding between themselves that allows Kirsten to remain at the premises for a further 6 weeks on condition that 6 weekly payments of $150.00 are paid.
- I hereby issue the above order dismissing the rehearing application and recording the parties’ terms of settlement accordingly.
- For the avoidance of doubt, this order is enforceable as a monetary order and as an order for possession of the Tenancy Tribunal.