Tribunal Rejects Tenant's Request for Rehearing Over Rent Arrears

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[2025] NZTT 5150132, 5176751

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The application for a rehearing is dismissed.

2. The tenancy of [NAME] at [ADDRESS], [POSTCODE] is terminated, and possession is granted to [NAME] at 11:59pm on Sunday 23 March 2025.

3. [NAME] must pay rent until the end of the tenancy and must immediately pay the arrears accrued to date which are $3,600.

Reasons:

1. Both parties attended the hearing which was held remotely.

2. On 28 February 2024 the Tribunal made an order terminating the tenancy for rent arrears.

3. On 1 March, [NAME] applied for a rehearing on the grounds that he had not had sufficient time to respond to the application.

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4. Specifically, [NAME] states that the rent arrears information, being the rent summary, was filed with the Tribunal 40 hours prior to the hearing in breach of the Notice of Hearing which states that evidence must be filed 72 hours before a hearing. He says that as a result he had insufficient time to obtain evidence from [NAME] ([NAME]) or his employer that he will be receiving funds to cover the arrears.

5. He has now been able to submit evidence that he will pay the arrears on the 20th of March and rent going forward, and he submits that should be taken into account. He also considers that [NAME] should have contacted him directly by phone about the rent arrears rather than sending him 14-day Notices.

6. [NAME] defends the application for a rehearing saying that [NAME] has breached the stay of proceedings and has not demonstrated an intention to pay his rent arrears or pay rent going forward. She notes that he has not corresponded directly with her about the arrears at any point. She says she has no confidence in his intent to pay and it has put her in a difficult financial position.

The law

7. 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”.

8. 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.

9. The District Court in Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language sets 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

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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.”

10. As also noted in [NAME] v [NAME] & Ors, CIV-2020-085-193 [2020] p5 “What must be demonstrated is something far greater than unhappiness, disagreement or dissatisfaction.”

11. In Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, the Court of Appeal set out relevant considerations regarding further evidence:

“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 parties on the other. They are also designed to reflect the public interest in ensuring, so far as 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 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. In addition, it will need to pass the tests of credibility and cogency.”

12. When considering claims, the Tribunal must consider section 85 of the RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome.

13. The Tribunal is not bound by the Evidence Act 2006, see s97(4) RTA: “…the Tribunal may call for and receive as evidence any statement, document, information, matter or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law.”

https://www.westlaw.co.nz/maf/wlnz/app/document?docguid=I71a82471496811e6b8f3f870462e5362&&src=rl&hitguid=I91c0e275e01f11e08eefa443f89988a0&snippets=true&startChunk=1&endChunk=1&isTocNav=true&tocDs=AUNZ_NZ_LEGCOMM_TOC#anchor_I91c0e275e01f11e08eefa443f89988a0

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Discussion

14. [NAME] initially filed her application for termination based on anti-social behaviour on 29 January. On 14 February she sought to amend the application to include termination for rent arrears, filing evidence that rent was in excess of 21 days in arrears.

15. That amendment to the application (termination for rent arrears) and supporting evidence was provided to [NAME] by the Tribunal on 20 February. [NAME] filed submissions and evidence in response to all claims as well as a list of issues he had with the landlord on 25 February.

16. An updated rental summary and other evidence was filed on 27 February to which [NAME] raised immediate objection. The hearing was heard on 28 February.

17. [NAME] relied in her application for termination on three notices regarding rent arrears provided to [NAME] on 31 January, 7 February, and 14 February. Each notice stated:

If you do not make this payment on or before the Payment Date, or make an arrangement with me to pay, I can apply to the Tenancy Tribunal to end your tenancy, and for you to pay all the rent owed.

18. The Tenancy Tribunal is a lay person’s Tribunal. It is designed to be easily and quickly accessible by all. For this reason, the Tribunal has jurisdiction to run hearings in a just and efficient manner receiving evidence to meet that end. What this means is that often evidence is received by parties on the day of hearing or just prior. The Tribunal accommodates that so long as, and in a way that does not prejudice the other party.

19. [NAME]’s application for termination for rent arrears was filed with the Tribunal on 14 February and advised to [NAME] on 20 February, 8 days prior to the hearing. As is usual for similar proceedings, an updated rental summary was provided just prior to the hearing. This is the usual practice to ensure that the Tribunal is aware of the state of rent as close in time proximity to the hearing as possible.

20. The rent summary that was filed on the 14th shows [NAME] in considerable arrears. He had already received three notices to the same effect and had been in arrears since December 2024. He had also been made aware the Tribunal was considering an application to terminate his tenancy since he was advised of the initial application on 29 January.

21. [NAME] raised the issue of lack of notice of the claim at the hearing. Because of his perception I provided him with time after the hearing to file evidence regarding the rent arrears. He availed of this and filed a number of documents regarding the rent, including an email from his employer about when he would be paid.

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22. In summary, [NAME] was on notice of the claim from [NAME] since 31 January and the Tribunal on 20 February. He was aware of how to file evidence in response as he utilised this mechanism. He was also provided with time post hearing to support his defence to the application.

23. [NAME] did not provide evidence within those time frames that would have altered the Tribunal’s finding. I am further satisfied that the evidence he has provided the since the hearing would have been reasonably able to have been obtained prior to the first hearing as it was easily attained by email since.

24. Having considered the situation very carefully, I am satisfied that [NAME] did have adequate notice of the application to terminate his tenancy for rent arrears. It was therefore rightly heard and considered.

25. Further, [NAME] has effectively had another two weeks to rectify the situation but has not. He has also breached the stay of proceedings ordered on 3 March. The stay was granted conditional on [NAME] paying his weekly rent, specifically noting payments due 2 March and 9 March. [NAME] only paid $600 on 7 March; he therefore has breached the stay. The evidence does not suggest that [NAME] was taking the rent arrears situation seriously.

26. Accordingly, a substantial wrong or miscarriage of justice has not occurred nor is it likely to have occurred. The claim must be dismissed.

27. I have allowed another week than initially ordered for the tenancy in order to assist [NAME] to make arrangements to vacate.

[NAME]

14 March 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: