Tenantcheck Insights · Case study

Tenancy Tribunal case 9066344 — Rent arrears in Grafton, Auckland

Published 13 April 2026 · Application 9066344

Landlord favoured

Rent arrears
Cleanliness
Unit Titles

View official order on MoJ →Explore similar cases

At a glance

Key facts from the published tribunal order.

Outcome

Landlord favoured

From published order

Location

Auckland

Tribunal region

Adjudicator

D Watson

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.

Order

The application for recusal of the adjudicator is dismissed.
The application for a rehearing and a stay is dismissed.

Reasons

The application

Silverfern Redwoods Ltd (SRL) applies for a rehearing and a stay of the Tribunal’s order dated 26 June 2025 (the order). It also applies for an order that I recuse myself.
The issues are whether: a. I should recuse myself, and b. If not, should I grant the rehearing and the stay. The background
SR owns the unit at 7C, 2 Whitaker Place, Grafton, Auckland 1010, The Whitaker. As at the date of the order, it had a tenant there who was causing problems in the Body Corporate, as I will shortly describe.
The Body Corporate issued a number of breach notices in connection with the tenant’s behaviour. It also applied for an order that the tenant be removed.
The matter was set down for hearing in person on 24 June 2025.
SR sought an adjournment at the outset of the hearing on the grounds of illness on the part of the then only director, Jasumati Bhana. 1 I declined the request to adjourn for reasons set out in the order, allowing Mr Stephen Bhana (a relative) to represent Jasumati Bhana.
SR explained at the hearing that it had only just filed its own application against the tenant, also seeking an order for the tenant removal. This was discussed at the hearing and there were also discussions about whether there was any legal basis for a Body Corporate to apply for removal of a tenant.
Because SR had filed its own application against the tenant, the only matter dealt with at the hearing was the Body Corporate’s application for the costs arising out of the breach notices. The balance of the Body Corporate’s applications were adjourned until after SR’s application against the tenant could be dealt with.
Immediately after the hearing, the Body Corporate filed further documentation. This arose out of discussions during the hearing including the basis on which the Body Corporate could recover the costs from SR and whether the Body Corporate had the right to an order to remove the tenant.
The information provided related to matters broadly discussed at the hearing, being: a. a service contract dated 1 August 2023 which came to an end one year later, between the Body Corporate manager, Boutique Body Corporates Ltd and the Body Corporate, b. legal authority referred to in the hearing, c. some further invoices, and d. the relevant Body Corporate minutes dealing with collection of costs which recorded: Concern was expressed at multiple breaches of quiet enjoyment by the occupant of 7C and also a further Kainga Ora resident. The meeting agreed the building manager should notify BBCL in the event of each incident and BBCL 1 I note that on 13 October 2025 a consent to act as director was filed by Chiman (Stephen) Bhana at the Companies Office, although appears to be dated much earlier than this date. should issue breach notices, including cost recovery for additional cleaning and the like. If need be, application could be made to the Tenancy Tribunal to have the landlord remove occupants not prepared to comply with the Body Corporate rules. The costs associated with any hearing will be sought to be recovered under s 127 of the Act.
The following day, SR sent an email to the Registry advising it wanted to make submissions on the additional information. It did not supply any additional submissions.
The order was then issued on 26 June 2025.
The terms of the order were that SRL pay $7,109.69 to Body Corporate 183119 (the Body Corporate), calculated as follows: Breach notices On-charges Costs of preparing the application Costs of preparing for and attending hearing $4606.00 $707.82 $632.50 $1164.37
SR applied for a rehearing of the order on 3 July 2025. It also applied for a stay. A hearing date was set for 13 November 2025.
In the meantime, SR also appealed the order and separately applied to the District Court for a stay on 10 July 2025.
On 8 October 2025, SR emailed the registry to advised that I should have granted the stay. SR said that in the absence of a stay, its appeal was rendered nugatory.
Given there was both an application for a rehearing and an appeal on foot, I issued a minute 2 dated 9 October 2025 stating: ....the Tribunal considers any further application or hearings in relation to 9066344 should be adjourned pending the outcome of the Unit Holder’s appeal. In this instance the Tribunal considers it is not an efficient use of time for there to be dual proceedings running at the same time. Parties to please advise the Tribunal when the appeal outcome is known. The new hearing date recently advised to the parties for 13 November will be therefore be cancelled in the meantime. The Unit Holder is to note that the filing of a notice of rehearing and application for a stay or appeal does not give rise to an immediate stay or right to a stay. No stay has been ordered. The Unit Holder has sought a stay in the District Court. Can the parties please advise the Tribunal of the outcome of that application in due course? 2 Section 97(4) and s 85 of the Residential Tenancies Act 1986 (RTA). .
The Registry, however, appears to have then separately advised SR that the appeal was on hold pending the outcome of the rehearing. I was not immediately aware of that.
There was therefore some confusion as to whether the rehearing was to be heard before the appeal or not.
This confusion then led to SR applying by way of a memorandum for recusal of myself which was filed on 25 October 2025.
On 24 November 2025 I issued a minute stating: ..... Enquiries have been made of the registry regarding its decision to not progress the appeal pending the outcome of the rehearing - a decision which has conflicted with the adjudicator’s directions. In view of the confusion that has been created, and given the advice of the registry about the appeal (and relied on by the unit holder) the adjudicator considers that the application for a rehearing should indeed be set down for hearing without any delay. It can also be listed for hearing with the application for recusal and any other incidental orders.
Both applications (the application for a rehearing and the application for recusal) were then promptly set down for remote hearing on 16 January 2026.
The day prior to that hearing, Mr Stephen Bhana (now a director), sought an adjournment on the grounds he had suffered a heart attack and was recuperating. The other director was going away and could not appear.
The application for an adjournment was granted and timetable orders (building in several weeks of time to allow for Mr Bhana’s condition) were made for the matter to be determined on the papers, following receipt of written submissions from the parties.
The timetable order that was made was later pushed out by minute dated 19 February 2026, following a subsequent request by SR for yet further time. I ordered that: a. SRL must file its submissions in support of its applications on or before 4 March 2026, b. The Body Corporate must file its submissions on or before 18 March 2026, c. SRL must file any reply on or before 25 March 2026, and d. after 25 March, the Tribunal would review all submissions and proceed to issue a decision in the matter. (emphasis added).
By minute dated 10 March 2026, I advised the parties: Silverfern Redwoods Ltd has not filed any submissions and not offered an adequate reason for the delay. It must file its submissions by 5pm today. This is a final extension. Strict compliance with this timetable is required and the Tribunal will not be reading submissions it files after this date. (emphasis added)
Several submissions have been filed by SR.
In the interests of justice I have decided to read and take all submissions filed by SR into account. I consider there is no prejudice to the Body Corporate. The issues
As noted above, the issues which I must decide are: a. Should I recuse myself? b. If not, should I allow the application for a stay and a rehearing?
I deal first with the application for recusal. Relevant legal principles: application for recusal
Muir v Commissioner of Inland Revenue & Anor [2007] NZCA 334 confirms that the test for apparent bias is whether a fair-minded lay observer, properly informed of all relevant circumstances, would reasonably apprehend that a judge might not bring an impartial mind to the case.
The test for recusal is therefore whether a fair-minded and well-informed lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the determination. Merely because a decision maker has found against a party is not grounds for recusal. 3
The High Court has developed recusal guidelines which reflect this law as follows: ....
2 A judge should recuse him or herself if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
3 The standard for recusal is one of “real and not remote possibility”, rather than probability.
4 The test is a two-stage one. The judge must consider
4.1 1.4.1 First, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and
4.2 1.4.2 Second, whether there is a “logical and sufficient connection” between those circumstances and that apprehension.
The Tenancy Tribunal does not have any guidelines for recusal but applies the common law. 3 Nottingham v The Real Estate Agents Authority [2023] NZCA 233.
Delieu v Legal Complaints Review Officer [2025] NZGC 1730 is a recent example which illustrates how the standard is applied. There, the Court told the applicant to “knock yourself out” when a possible recusal was mentioned. The Court, in applying the fair-minded observer test (and in concluded he should not recuse himself) said: 4 Not only must the Court actually be impartial and independent; it also must appear to be so. Nonetheless, the Supreme Court has stipulated “[j]udges should not recuse themselves without sufficient cause”. Apparent bias is to be assessed on a case-by-case basis. ..... the issue is if my impugned involvement in the case makes it a real possibility a fair-minded, fully informed intelligent lay observer reasonably would apprehend I might not impartially decide the issue before me on its merits, notwithstanding my oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”. ..... In considering Mr Deliu’s application, I applied those guidelines, including the standard of “real and not remote possibility”, rather than probability, of partiality; to be determined by the two-stage test; in the application of which I am to apply the relevant principles “firmly and fairly and not accede too readily to suggestions of bias”. Analysis.
SR appears to allege the bias arises out of my directions that the rehearing be put on hold, pending the outcome of the appeal and the Registry’s conflicting advice that the rehearing would proceed first.
I accept this was confusing, but this is not evidence of bias. In any event, I note that once matters were sufficiently brought to my attention I notified the parties that the rehearing would indeed proceed.
SR also seems to allege that predetermination and bias arises out of the fact it did not get the opportunity to comment on additional material sent by the Body Corporate immediately after the hearing. I disagree. It did not have leave to file any reply but in any event, it still had time to do so before the order was issued.
SR also complains that I did not issue an immediate order for a stay when the application for a rehearing was set down. It says this is the usual order that is made when an application for a rehearing is made.
Whilst that certainly might be the case where the Tribunal has issued an order for termination and rent arrears, I note that in such cases the Tribunal frequently orders that the stay is conditional on payment of the arrears and / or ongoing rent. Importantly, the stay is ordered to ensure the tenant has ongoing occupation of the premises where they live so there is not irreparable prejudice suffered in the 4 At [4], [6] and [7], footnotes omitted. I note that some of the footnotes refer to High Court guidelines for recusal. event the rehearing application is eventually successful. Otherwise, a landlord could enforce the order for termination.
That scenario of very different from the current situation. There was certainly no offer made by SR to pay the amount ordered as a condition of the stay. Further, SR was not at all in the same situation as a tenant applying for a rehearing of a terminated tenancy. It was not in residence of premises where the tenancy had been terminated. If the amount ordered was paid and the appeal successful or the order overturned, then it could always be paid back. There is no suggestion the Body Corporate is insolvent and ultimately no irreversible injury or prejudice to SR in no stay being ordered.
Even now, SR still advances no real reason why the stay should be ordered.
Once again, whilst SR disagrees with my approach, I do not consider this to be evidence of bias.
SR also claims that I refused to allow Mr Bhana to make submissions at the hearing. He was not at that time a Director of SR. In the order, I note that I did allow him to represent Ms Bhana.
The question that arises on a recusal application is whether facts exist to support a conclusion that a fair-minded, fully informed observer would have a reasonable apprehension that I might not bring an impartial mind to the resolution of the question I am required to decide.
Whilst I accept that SR strongly disagrees with the order, I do not consider that any part of the foregoing means that a fair-minded, fully informed observer would have a reasonable apprehension that I might not bring an impartial mind to the resolution of the question I was required to decide (being the application for a rehearing and a stay). Relevant legal principles: Application for rehearing
Section 105(1) Residential Tenancies Act 1986 (the 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”.
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 Jemma Trust v Rutherford, 5 the District Court quoted an extract from the Court of Appeal outlining the relevant considerations relating to new evidence as follows: 5 DC North Shore, CIV-2009-044-2056, 11 December 1999. The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite party on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial. While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling.
As to whether evidence is “new”, the High Court has confirmed that it is not a miscarriage of justice to decline a rehearing just because evidence was not considered at the original hearing, when that evidence could have been produced at the original hearing. 6
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, or to give them a second opportunity to present their case all over again before another adjudicator. Simply disagreeing with the decision is therefore not grounds for a rehearing. 7
In Wellington City Council v McMillan, 8 the Court referred to the different criteria that are applicable to appeals from the Tribunal to the District Court and stated: "[18] By contrast, by virtue of the specific terms of section 105, an application for a rehearing can only succeed if the applicant shows that a substantial wrong or miscarriage of justice has or may have occurred or is likely to have occurred. These are strong words which set a high standard. They most obviously apply...to cases of procedural error e.g. 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... [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 s105 is such that something more than a mere wrong decision must be shown. The section does not 6 Angelo v Lehr [2022] NZHC 3033 7 Yogeswaran v Doubletree Properties Ltd [2021] NZDC 15704. 8 DC Wellington, MA 70/02, 17 June 2002. speak of a decision being wrong but of a substantial wrong or miscarriage of justice occurring. This implies an 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 against the general hierarchical nature of the appeal system, it would also make the time limit for filing [a] notice of appeal against an original decision nugatory".
In Ross v Putteman, 9 a case where the District Court dismissed an appeal against a refusal to grant a rehearing. The Court stated at [39] that: In this case the particular grounds articulated by the appellant relate to a disagreement with the decisions made. They do not identify any particular failure of procedure or process leading to a miscarriage of justice. The decision made by the Tenancy Tribunal Adjudicator was available on the facts and the legal construction of the cases applied is not, as suggested by the appellant, in error.
Finally, I observe that there does not need to be an actual miscarriage of justice of a substantial wrong, only the potential for that. 10 Analysis.
Nothing in the material provided leads me to the conclusion there was or could have been a miscarriage of justice.
SR strongly disagrees with the order. I accept it is very unhappy with the outcome, but this is not grounds for a rehearing.
It appears to be claiming prejudice and a miscarriage of justice on the grounds that: a. Mr Bhana was prevented from making submissions at the hearing. This is incorrect, as noted above. There has been no miscarriage of justice arising out of this aspect. b. The hearing should not have proceeded, given the medical condition of Ms Bhana. I consider there was no miscarriage of justice here because I considered the request to adjourn, declined it, gave reasons and accommodated Ms Bhana’s condition by allowing her to appear remotely and for Mr Bhana to make submissions. c. There was no provision to collect the charges in the operating rules. This is a disagreement about the legal basis on which I ordered the costs could be collected, set out clearly in the decision. It does not give rise to any miscarriage of justice. d. There was no service contract in place between the Body Corporate and the Body Corporate Manager because it had expired. Again, this is a 9 [2025] NZDC 28757 10 Ward and Knight-Ward v Taitau [2021] NZDC 975 disagreement with the legal conclusion that has been reached. It does not give rise to any miscarriage of justice. Further, I note that in any event the mere fact the agreement had expired does not mean its terms and conditions do not continue to apply, 11 in particular, where the parties continue to perform and receive the required services contemplated by that agreement. e. There has been no opportunity to comment on the further information supplied by the Body Corporate right after the hearing. That material was mainly just supporting submissions made at the hearing. I note that in any event, the decision was issued two days later and no submissions were made by SR other than the request noted above. Had it considered any matter required an immediate response it could have filed a submission. f. SR submits that there is (unparticularised) “factual evidence” that both the Body Corporate and its manager breached the UTA and that I should have “picked out” this evidence in the “absence of proper submissions from” SR. g. It is not the job of the Tribunal to ascertain what evidence is helpful to a party; it is for the party to particularise their position and provide the evidence. As noted in Kaipo v Clarke, 12 in practical terms this means that: ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. h. I consider this submission lacks any merit. i. SR also makes submissions in relation to its interpretation of the Operational Rules, which were provided when the application was filed. Once again this is a legal submission about the basis on which the charges were incurred and the opportunity to make these submissions was at the hearing. It does not give rise to any miscarriage of justice which would support an order for rehearing.
In my view, SR is wanting a further opportunity to challenge the order. It disagrees with the outcome and its appropriate course of action is to progress the appeal. 11 This appears to be what SR is alleging. 12 Kaipo v Clarke DC Waitakere TT 233/02, 12 April 2002, at [7].
For the foregoing reasons, I decline the application for a stay and a rehearing.

Topics & place

Topics are dispute themes across the order (not the same as claim-type money lines).

Rent arrears Cleanliness Unit Titles Auckland

Residential Tenancies Act sections

s0800, s105, s105(1), s127, s29, s85, s97(4)

Key findings

Dispute theme: rent arrears
Dispute theme: cleaning
Dispute theme: unit titles

Property management

SILVERFERN REDWOODS LIMITED (respondent)

Frequently asked questions

Common questions about this Tenancy Tribunal case.

What was the outcome of Tenancy Tribunal case 9066344?

The tribunal order states: The application for recusal of the adjudicator is dismissed.

How much money was awarded in case 9066344?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9066344?

The primary dispute was Rent arrears. Related themes: Cleanliness, Unit Titles.

Where can I read the official tribunal order for case 9066344?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13433461-Tribunal_Order.pdf.

Reasons

The application

Silverfern Redwoods Ltd (SRL) applies for a rehearing and a stay of the Tribunal’s order dated 26 June 2025 (the order). It also applies for an order that I recuse myself.

The issues are whether: a. I should recuse myself, and b. If not, should I grant the rehearing and the stay. The background

SR owns the unit at 7C, 2 Whitaker Place, Grafton, Auckland 1010, The Whitaker. As at the date of the order, it had a tenant there who was causing problems in the Body Corporate, as I will shortly describe.

The Body Corporate issued a number of breach notices in connection with the tenant’s behaviour. It also applied for an order that the tenant be removed.

The matter was set down for hearing in person on 24 June 2025.

SR sought an adjournment at the outset of the hearing on the grounds of illness on the part of the then only director, Jasumati Bhana. 1 I declined the request to adjourn for reasons set out in the order, allowing Mr Stephen Bhana (a relative) to represent Jasumati Bhana.

SR explained at the hearing that it had only just filed its own application against the tenant, also seeking an order for the tenant removal. This was discussed at the hearing and there were also discussions about whether there was any legal basis for a Body Corporate to apply for removal of a tenant.

Because SR had filed its own application against the tenant, the only matter dealt with at the hearing was the Body Corporate’s application for the costs arising out of the breach notices. The balance of the Body Corporate’s applications were adjourned until after SR’s application against the tenant could be dealt with.

Immediately after the hearing, the Body Corporate filed further documentation. This arose out of discussions during the hearing including the basis on which the Body Corporate could recover the costs from SR and whether the Body Corporate had the right to an order to remove the tenant.

The information provided related to matters broadly discussed at the hearing, being: a. a service contract dated 1 August 2023 which came to an end one year later, between the Body Corporate manager, Boutique Body Corporates Ltd and the Body Corporate, b. legal authority referred to in the hearing, c. some further invoices, and d. the relevant Body Corporate minutes dealing with collection of costs which recorded: Concern was expressed at multiple breaches of quiet enjoyment by the occupant of 7C and also a further Kainga Ora resident. The meeting agreed the building manager should notify BBCL in the event of each incident and BBCL 1 I note that on 13 October 2025 a consent to act as director was filed by Chiman (Stephen) Bhana at the Companies Office, although appears to be dated much earlier than this date. should issue breach notices, including cost recovery for additional cleaning and the like. If need be, application could be made to the Tenancy Tribunal to have the landlord remove occupants not prepared to comply with the Body Corporate rules. The costs associated with any hearing will be sought to be recovered under s 127 of the Act.

The following day, SR sent an email to the Registry advising it wanted to make submissions on the additional information. It did not supply any additional submissions.

The order was then issued on 26 June 2025.

The terms of the order were that SRL pay $7,109.69 to Body Corporate 183119 (the Body Corporate), calculated as follows: Breach notices On-charges Costs of preparing the application Costs of preparing for and attending hearing $4606.00 $707.82 $632.50 $1164.37

SR applied for a rehearing of the order on 3 July 2025. It also applied for a stay. A hearing date was set for 13 November 2025.

In the meantime, SR also appealed the order and separately applied to the District Court for a stay on 10 July 2025.

On 8 October 2025, SR emailed the registry to advised that I should have granted the stay. SR said that in the absence of a stay, its appeal was rendered nugatory.

Given there was both an application for a rehearing and an appeal on foot, I issued a minute 2 dated 9 October 2025 stating: ....the Tribunal considers any further application or hearings in relation to 9066344 should be adjourned pending the outcome of the Unit Holder’s appeal. In this instance the Tribunal considers it is not an efficient use of time for there to be dual proceedings running at the same time. Parties to please advise the Tribunal when the appeal outcome is known. The new hearing date recently advised to the parties for 13 November will be therefore be cancelled in the meantime. The Unit Holder is to note that the filing of a notice of rehearing and application for a stay or appeal does not give rise to an immediate stay or right to a stay. No stay has been ordered. The Unit Holder has sought a stay in the District Court. Can the parties please advise the Tribunal of the outcome of that application in due course? 2 Section 97(4) and s 85 of the Residential Tenancies Act 1986 (RTA). .

The Registry, however, appears to have then separately advised SR that the appeal was on hold pending the outcome of the rehearing. I was not immediately aware of that.

There was therefore some confusion as to whether the rehearing was to be heard before the appeal or not.

This confusion then led to SR applying by way of a memorandum for recusal of myself which was filed on 25 October 2025.

On 24 November 2025 I issued a minute stating: ..... Enquiries have been made of the registry regarding its decision to not progress the appeal pending the outcome of the rehearing - a decision which has conflicted with the adjudicator’s directions. In view of the confusion that has been created, and given the advice of the registry about the appeal (and relied on by the unit holder) the adjudicator considers that the application for a rehearing should indeed be set down for hearing without any delay. It can also be listed for hearing with the application for recusal and any other incidental orders.

Both applications (the application for a rehearing and the application for recusal) were then promptly set down for remote hearing on 16 January 2026.

The day prior to that hearing, Mr Stephen Bhana (now a director), sought an adjournment on the grounds he had suffered a heart attack and was recuperating. The other director was going away and could not appear.

The application for an adjournment was granted and timetable orders (building in several weeks of time to allow for Mr Bhana’s condition) were made for the matter to be determined on the papers, following receipt of written submissions from the parties.

The timetable order that was made was later pushed out by minute dated 19 February 2026, following a subsequent request by SR for yet further time. I ordered that: a. SRL must file its submissions in support of its applications on or before 4 March 2026, b. The Body Corporate must file its submissions on or before 18 March 2026, c. SRL must file any reply on or before 25 March 2026, and d. after 25 March, the Tribunal would review all submissions and proceed to issue a decision in the matter. (emphasis added).

By minute dated 10 March 2026, I advised the parties: Silverfern Redwoods Ltd has not filed any submissions and not offered an adequate reason for the delay. It must file its submissions by 5pm today. This is a final extension. Strict compliance with this timetable is required and the Tribunal will not be reading submissions it files after this date. (emphasis added)

Several submissions have been filed by SR.

In the interests of justice I have decided to read and take all submissions filed by SR into account. I consider there is no prejudice to the Body Corporate. The issues

As noted above, the issues which I must decide are: a. Should I recuse myself? b. If not, should I allow the application for a stay and a rehearing?

I deal first with the application for recusal. Relevant legal principles: application for recusal

Muir v Commissioner of Inland Revenue & Anor [2007] NZCA 334 confirms that the test for apparent bias is whether a fair-minded lay observer, properly informed of all relevant circumstances, would reasonably apprehend that a judge might not bring an impartial mind to the case.

The test for recusal is therefore whether a fair-minded and well-informed lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the determination. Merely because a decision maker has found against a party is not grounds for recusal. 3

The High Court has developed recusal guidelines which reflect this law as follows: ....

2 A judge should recuse him or herself if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

3 The standard for recusal is one of “real and not remote possibility”, rather than probability.

4 The test is a two-stage one. The judge must consider

4.1 1.4.1 First, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and

4.2 1.4.2 Second, whether there is a “logical and sufficient connection” between those circumstances and that apprehension.

The Tenancy Tribunal does not have any guidelines for recusal but applies the common law. 3 Nottingham v The Real Estate Agents Authority [2023] NZCA 233.

Delieu v Legal Complaints Review Officer [2025] NZGC 1730 is a recent example which illustrates how the standard is applied. There, the Court told the applicant to “knock yourself out” when a possible recusal was mentioned. The Court, in applying the fair-minded observer test (and in concluded he should not recuse himself) said: 4 Not only must the Court actually be impartial and independent; it also must appear to be so. Nonetheless, the Supreme Court has stipulated “[j]udges should not recuse themselves without sufficient cause”. Apparent bias is to be assessed on a case-by-case basis. ..... the issue is if my impugned involvement in the case makes it a real possibility a fair-minded, fully informed intelligent lay observer reasonably would apprehend I might not impartially decide the issue before me on its merits, notwithstanding my oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”. ..... In considering Mr Deliu’s application, I applied those guidelines, including the standard of “real and not remote possibility”, rather than probability, of partiality; to be determined by the two-stage test; in the application of which I am to apply the relevant principles “firmly and fairly and not accede too readily to suggestions of bias”. Analysis.

SR appears to allege the bias arises out of my directions that the rehearing be put on hold, pending the outcome of the appeal and the Registry’s conflicting advice that the rehearing would proceed first.

I accept this was confusing, but this is not evidence of bias. In any event, I note that once matters were sufficiently brought to my attention I notified the parties that the rehearing would indeed proceed.

SR also seems to allege that predetermination and bias arises out of the fact it did not get the opportunity to comment on additional material sent by the Body Corporate immediately after the hearing. I disagree. It did not have leave to file any reply but in any event, it still had time to do so before the order was issued.

SR also complains that I did not issue an immediate order for a stay when the application for a rehearing was set down. It says this is the usual order that is made when an application for a rehearing is made.

Whilst that certainly might be the case where the Tribunal has issued an order for termination and rent arrears, I note that in such cases the Tribunal frequently orders that the stay is conditional on payment of the arrears and / or ongoing rent. Importantly, the stay is ordered to ensure the tenant has ongoing occupation of the premises where they live so there is not irreparable prejudice suffered in the 4 At [4], [6] and [7], footnotes omitted. I note that some of the footnotes refer to High Court guidelines for recusal. event the rehearing application is eventually successful. Otherwise, a landlord could enforce the order for termination.

That scenario of very different from the current situation. There was certainly no offer made by SR to pay the amount ordered as a condition of the stay. Further, SR was not at all in the same situation as a tenant applying for a rehearing of a terminated tenancy. It was not in residence of premises where the tenancy had been terminated. If the amount ordered was paid and the appeal successful or the order overturned, then it could always be paid back. There is no suggestion the Body Corporate is insolvent and ultimately no irreversible injury or prejudice to SR in no stay being ordered.

Even now, SR still advances no real reason why the stay should be ordered.

Once again, whilst SR disagrees with my approach, I do not consider this to be evidence of bias.

SR also claims that I refused to allow Mr Bhana to make submissions at the hearing. He was not at that time a Director of SR. In the order, I note that I did allow him to represent Ms Bhana.

The question that arises on a recusal application is whether facts exist to support a conclusion that a fair-minded, fully informed observer would have a reasonable apprehension that I might not bring an impartial mind to the resolution of the question I am required to decide.

Whilst I accept that SR strongly disagrees with the order, I do not consider that any part of the foregoing means that a fair-minded, fully informed observer would have a reasonable apprehension that I might not bring an impartial mind to the resolution of the question I was required to decide (being the application for a rehearing and a stay). Relevant legal principles: Application for rehearing

Section 105(1) Residential Tenancies Act 1986 (the 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”.

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 Jemma Trust v Rutherford, 5 the District Court quoted an extract from the Court of Appeal outlining the relevant considerations relating to new evidence as follows: 5 DC North Shore, CIV-2009-044-2056, 11 December 1999. The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite party on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial. While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling.

As to whether evidence is “new”, the High Court has confirmed that it is not a miscarriage of justice to decline a rehearing just because evidence was not considered at the original hearing, when that evidence could have been produced at the original hearing. 6

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, or to give them a second opportunity to present their case all over again before another adjudicator. Simply disagreeing with the decision is therefore not grounds for a rehearing. 7

In Wellington City Council v McMillan, 8 the Court referred to the different criteria that are applicable to appeals from the Tribunal to the District Court and stated: "[18] By contrast, by virtue of the specific terms of section 105, an application for a rehearing can only succeed if the applicant shows that a substantial wrong or miscarriage of justice has or may have occurred or is likely to have occurred. These are strong words which set a high standard. They most obviously apply...to cases of procedural error e.g. 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... [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 s105 is such that something more than a mere wrong decision must be shown. The section does not 6 Angelo v Lehr [2022] NZHC 3033 7 Yogeswaran v Doubletree Properties Ltd [2021] NZDC 15704. 8 DC Wellington, MA 70/02, 17 June 2002. speak of a decision being wrong but of a substantial wrong or miscarriage of justice occurring. This implies an 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 against the general hierarchical nature of the appeal system, it would also make the time limit for filing [a] notice of appeal against an original decision nugatory".

In Ross v Putteman, 9 a case where the District Court dismissed an appeal against a refusal to grant a rehearing. The Court stated at [39] that: In this case the particular grounds articulated by the appellant relate to a disagreement with the decisions made. They do not identify any particular failure of procedure or process leading to a miscarriage of justice. The decision made by the Tenancy Tribunal Adjudicator was available on the facts and the legal construction of the cases applied is not, as suggested by the appellant, in error.

Finally, I observe that there does not need to be an actual miscarriage of justice of a substantial wrong, only the potential for that. 10 Analysis.

Nothing in the material provided leads me to the conclusion there was or could have been a miscarriage of justice.

SR strongly disagrees with the order. I accept it is very unhappy with the outcome, but this is not grounds for a rehearing.

It appears to be claiming prejudice and a miscarriage of justice on the grounds that: a. Mr Bhana was prevented from making submissions at the hearing. This is incorrect, as noted above. There has been no miscarriage of justice arising out of this aspect. b. The hearing should not have proceeded, given the medical condition of Ms Bhana. I consider there was no miscarriage of justice here because I considered the request to adjourn, declined it, gave reasons and accommodated Ms Bhana’s condition by allowing her to appear remotely and for Mr Bhana to make submissions. c. There was no provision to collect the charges in the operating rules. This is a disagreement about the legal basis on which I ordered the costs could be collected, set out clearly in the decision. It does not give rise to any miscarriage of justice. d. There was no service contract in place between the Body Corporate and the Body Corporate Manager because it had expired. Again, this is a 9 [2025] NZDC 28757 10 Ward and Knight-Ward v Taitau [2021] NZDC 975 disagreement with the legal conclusion that has been reached. It does not give rise to any miscarriage of justice. Further, I note that in any event the mere fact the agreement had expired does not mean its terms and conditions do not continue to apply, 11 in particular, where the parties continue to perform and receive the required services contemplated by that agreement. e. There has been no opportunity to comment on the further information supplied by the Body Corporate right after the hearing. That material was mainly just supporting submissions made at the hearing. I note that in any event, the decision was issued two days later and no submissions were made by SR other than the request noted above. Had it considered any matter required an immediate response it could have filed a submission. f. SR submits that there is (unparticularised) “factual evidence” that both the Body Corporate and its manager breached the UTA and that I should have “picked out” this evidence in the “absence of proper submissions from” SR. g. It is not the job of the Tribunal to ascertain what evidence is helpful to a party; it is for the party to particularise their position and provide the evidence. As noted in Kaipo v Clarke, 12 in practical terms this means that: ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. h. I consider this submission lacks any merit. i. SR also makes submissions in relation to its interpretation of the Operational Rules, which were provided when the application was filed. Once again this is a legal submission about the basis on which the charges were incurred and the opportunity to make these submissions was at the hearing. It does not give rise to any miscarriage of justice which would support an order for rehearing.

In my view, SR is wanting a further opportunity to challenge the order. It disagrees with the outcome and its appropriate course of action is to progress the appeal. 11 This appears to be what SR is alleging. 12 Kaipo v Clarke DC Waitakere TT 233/02, 12 April 2002, at [7].

For the foregoing reasons, I decline the application for a stay and a rehearing.