Remely v. O'Shea

Otto Remely sought judicial review of a decision made by the Small Claims Tribunal in relation to his disputes with Leanne O’Shea and Geoff and Laraine Vandenberg. The disputes concerned Mr Remely’s tenancy at the Vandenberg’s caravan park. Mr Remely had filed two applications in the Small Claims Tribunal. The first application was to set aside a notice to leave the caravan park. The second was in relation to a number of charges Mr Remely alleged were illegally levied by the Vandenbergs and in relation to his bond. Mr Remely raised six grounds for review. First, he submitted that he was denied natural justice because the male second respondent did not attend the hearing and was thus unavailable for cross-examination. He was also denied natural justice in not receiving copies of three affidavits relied on by the second respondents during the hearing. Secondly, Mr Remely submitted that the referee permitted an agent to appear for Mr Vandenberg without any reason for the agent having been identified. Thirdly, Mr Remely submitted that electricity charges were levied unlawfully by the second respondents. Fourth, Mr Remely submitted that an alleged rent increase by the second respondents was unlawful. Fifthly, Mr Remely submitted that the termination of his tenancy was contrary to law. Finally, Mr Remely submitted that the second respondents’ failure to lodge his bond money with the Residential Tenancies Authority was unlawful.

The court dismissed the application and held that Mr Remely had failed to demonstrate that the referee had made a reviewable error. The court held that the referee had not denied Mr Remely natural justice by reason of Mr Vandenberg’s failure to appear. The court held that it was not necessary for Mr Remely to be provided with copies of the affidavits and that there had been no breach of natural justice. The court held that the referee had no basis for allowing the second respondents’ son to be appointed as an agent, however Mr Remely was not a person aggrieved within the statutory definition and his application must fail on this ground. The court held that Mr Remely had been refunded the amount of any overcharge and was thus not a person aggrieved by that decision. The court held that the referee’s failure to deal with the bond issue further could not be criticised. The court held that the fee charged by the managers to have the mowing carried out did not constitute rent. The court held that the application in relation to the termination of the tenancy was frivolous and should be struck out under s 48 of the Judicial Review Act. In the result, Mr Remely’s application must fail for the reasons outlined. The court dismissed the application and ordered the applicant to pay the respondents’ costs assessed on the standard basis.