What was the outcome of Tenancy Tribunal case 9042804?

The tribunal order states: The Owner Michael Wentworth Sayes application for rehearing is dismissed.

How much money was awarded in case 9042804?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9042804?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9042804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9472568-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9042804?

The tribunal order states: The Owner Michael Wentworth Sayes application for rehearing is dismissed.

How much money was awarded in case 9042804?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9042804?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9042804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9472568-Tribunal_Order.pdf.

Auckland, Auckland Tenancy Tribunal Case 9042804 — Unit Titles

Order

The Owner Michael Wentworth Sayes application for rehearing is dismissed.

Reasons

Background

On 11 July 2023 the Owner Mr Sayes applied for a rehearing of the Tribunal Order dated 11 July 2023 in which Mr Sayes was ordered to pay the Body Corporate $12,112.46 for levy, costs and interest.
By Order of 20 July 2023 the application for rehearing was set down for hearing which was subsequently scheduled for today.
Both parties chose not to attend the hearing today and advised the Tribunal accordingly. Instead the Body Corporate abides the decision of the tribunal. In addition to his application for rehearing (memorandum 1), Mr Sayes made further submissions in memoranda 2 to 7.
Mr Sayes lists 5 reasons for the rehearing application which I have attempted, with some difficulty, to summarise as follows: i.I failed to consider that if all the levies were due in 2023 the amount of interest ordered is incorrect. ii.I incorrectly refunded the filing fee when it was not a matter for consideration in the Notice of Hearing. Further the refund of the filing fee ordered is ambiguous due to the tenses used in the reasons paragraph 12. iii.The notice of hearing permits ‘other matters to be heard’ including issues relating to the 6 December 2022 minutes, and by implication the agenda to the minutes, which I failed to consider. iv.I have erred in my judgement by not joining Auckland Property Management Limited, (the Body Corporate Secretary) and addressing Mr Sayes submissions. v.I am wrong in my analysis and my understanding of Mr Sayes argument for his non payment of levies and so my finding is wrong. His argument includes allegations that there is an improper audit report and non compliance with the Services Agreement so the Body Corporate could not hold an Annual General meeting, that then led to unlawfulness in the fixing and attempted collection of the levies by the Body Corporate Secretary.
I have attempted to summarise the 4 pages of reasons from Mr Sayes in his original rehearing application, and his supporting memoranda. Even if I have not fully captured Mr Sayes reasons, they essentially all contend that my decision is flawed and incorrect.

Has a substantial wrong or miscarriage of justice occurred?

Section 105 of the Residential Tenancies Act 1986 Section 105(1) Residential Tenancies Act 1986 (RTA) 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 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 to 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.”
This is not a case of procedural wrongdoing. Mr Sayes had notice of the hearing. He chose not to attend due to his ill health. His written submissions were considered in the hearing. Counsel for the Body Corporate addressed Mr Sayes arguments to the tribunal. It is fair to say that I was challenged by the manner in which Mr Sayes written submissions were presented, but I did my best to address his arguments.
It is important to recognise that the Tenancy Tribunal is a body empowered to determine its disputes, including Unit Title disputes, in an expeditious and straightforward way. See section 176 Unit Titles Act 2010 which applies Part 3 of the Residential Tenancies Act 1986 (RTA) for the hearing and determination of unit title disputes.
This is exhibited in various ways. Legal representation is limited to specific exceptions (section 93 RTA). The Tribunal is empowered to regulate its own procedure as it sees fit (section 96(4) RTA). The Tribunal may receive in evidence documents that might not otherwise be admissible in a court of law (section 97(4) RTA.
Section 85 RTA is also instrumental in how the tribunal approaches its hearings. It provides that the tribunal must exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes, and must determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
For the reasons set out above, I do not find a substantial wrong or miscarriage of justice has or may have occurred.
It is plain that Mr Sayes disagrees with my decision and believes my reasoning is flawed by omission and/or commission.
But even if I was incorrect in my findings, that could not form the basis to grant a rehearing. Instead because Mr Sayes considers that my decision is wrong, he could have exercised his right to appeal the decision to the District Court. I do not know if an appeal was filed.
I recognise that there is a very strict 10 day time limit to appeal to the District Court that cannot be extended (see section 117(6) RTA, and the High Court decisions of McLeod v Schellack and anor [2019] NZHC 1364, and Body Corporate 341188 v Kelly & Anor [2015] NZHC 1647). However, the fact of any strict appeal time limits applying, is not a ground that would be relevant when considering a rehearing request. A rehearing cannot be granted simply to allow Mr Sayes another opportunity to argue his case.

Order

The Owner Michael Wentworth Sayes application for rehearing is dismissed.

Reasons

Background

On 11 July 2023 the Owner Mr Sayes applied for a rehearing of the Tribunal Order dated 11 July 2023 in which Mr Sayes was ordered to pay the Body Corporate $12,112.46 for levy, costs and interest.
By Order of 20 July 2023 the application for rehearing was set down for hearing which was subsequently scheduled for today.
Both parties chose not to attend the hearing today and advised the Tribunal accordingly. Instead the Body Corporate abides the decision of the tribunal. In addition to his application for rehearing (memorandum 1), Mr Sayes made further submissions in memoranda 2 to 7.
Mr Sayes lists 5 reasons for the rehearing application which I have attempted, with some difficulty, to summarise as follows: i.I failed to consider that if all the levies were due in 2023 the amount of interest ordered is incorrect. ii.I incorrectly refunded the filing fee when it was not a matter for consideration in the Notice of Hearing. Further the refund of the filing fee ordered is ambiguous due to the tenses used in the reasons paragraph 12. iii.The notice of hearing permits ‘other matters to be heard’ including issues relating to the 6 December 2022 minutes, and by implication the agenda to the minutes, which I failed to consider. iv.I have erred in my judgement by not joining Auckland Property Management Limited, (the Body Corporate Secretary) and addressing Mr Sayes submissions. v.I am wrong in my analysis and my understanding of Mr Sayes argument for his non payment of levies and so my finding is wrong. His argument includes allegations that there is an improper audit report and non compliance with the Services Agreement so the Body Corporate could not hold an Annual General meeting, that then led to unlawfulness in the fixing and attempted collection of the levies by the Body Corporate Secretary.
I have attempted to summarise the 4 pages of reasons from Mr Sayes in his original rehearing application, and his supporting memoranda. Even if I have not fully captured Mr Sayes reasons, they essentially all contend that my decision is flawed and incorrect.

Has a substantial wrong or miscarriage of justice occurred?

Section 105 of the Residential Tenancies Act 1986 Section 105(1) Residential Tenancies Act 1986 (RTA) 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 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 to 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.”
This is not a case of procedural wrongdoing. Mr Sayes had notice of the hearing. He chose not to attend due to his ill health. His written submissions were considered in the hearing. Counsel for the Body Corporate addressed Mr Sayes arguments to the tribunal. It is fair to say that I was challenged by the manner in which Mr Sayes written submissions were presented, but I did my best to address his arguments.
It is important to recognise that the Tenancy Tribunal is a body empowered to determine its disputes, including Unit Title disputes, in an expeditious and straightforward way. See section 176 Unit Titles Act 2010 which applies Part 3 of the Residential Tenancies Act 1986 (RTA) for the hearing and determination of unit title disputes.
This is exhibited in various ways. Legal representation is limited to specific exceptions (section 93 RTA). The Tribunal is empowered to regulate its own procedure as it sees fit (section 96(4) RTA). The Tribunal may receive in evidence documents that might not otherwise be admissible in a court of law (section 97(4) RTA.
Section 85 RTA is also instrumental in how the tribunal approaches its hearings. It provides that the tribunal must exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes, and must determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
For the reasons set out above, I do not find a substantial wrong or miscarriage of justice has or may have occurred.
It is plain that Mr Sayes disagrees with my decision and believes my reasoning is flawed by omission and/or commission.
But even if I was incorrect in my findings, that could not form the basis to grant a rehearing. Instead because Mr Sayes considers that my decision is wrong, he could have exercised his right to appeal the decision to the District Court. I do not know if an appeal was filed.
I recognise that there is a very strict 10 day time limit to appeal to the District Court that cannot be extended (see section 117(6) RTA, and the High Court decisions of McLeod v Schellack and anor [2019] NZHC 1364, and Body Corporate 341188 v Kelly & Anor [2015] NZHC 1647). However, the fact of any strict appeal time limits applying, is not a ground that would be relevant when considering a rehearing request. A rehearing cannot be granted simply to allow Mr Sayes another opportunity to argue his case.

Tenancy Tribunal case 9042804 — Unit Titles in Auckland, Auckland

At a glance

Tenancy Tribunal case 9042804 — Unit Titles in Auckland, Auckland

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions