Deliu v Tenancy Tribunal
[2020] NZHC 1220
•4 June 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1999
[2020] NZHC 1220
BETWEEN FRANCISCO CATALIN (FRANK DELIU)
Plaintiff
AND
TENANCY TRIBUNAL
First Defendant
HOMES4RENT LIMITED
Second Defendant
Hearing: 29 May 2020 Counsel:
Plaintiff in person
J Keating for Defendants
Judgment:
4 June 2020
JUDGMENT OF WHATA J
This judgment was delivered by me on 4 June 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Crown Law, Wellington
Kennedys, Auckland
FRANCISCO CATALIN (FRANK DELIU) v TENANCY TRIBUNAL [2020] NZHC 1220 [4 June 2020]
[1] Mr Frank Deliu was a tenant of a house managed by Homes4Rent Limited (Homes4Rent). The tenancy did not end well. Mr Deliu commenced proceedings in the Tenancy Tribunal (the Tribunal) for repayment of his $4,400 bond. Homes4Rent counterclaimed for rental arrears and repair costs. The matter was set down for hearing, but Mr Deliu claims his approved request to join the hearing by telephone was never actioned, that he never received any notice of the hearing or a decision from the Tribunal, and that the Tribunal proceeded without him. He now claims, in short, that the Tribunal acted unfairly. He also seeks an injunction precluding Homes4Rent from seeking rental arrears of $3,445.74, disgorgement of the same sum, and damages for an amount not less than $10,000.
[2] This matter initially came before me as an application by Homes4Rent for security for costs. It ended with agreement that the Tribunal’s decision be referred back for reconsideration and costs lie where they fall.
[3] I am satisfied the Tribunal erred by failing to action Mr Deliu’s request to join the hearing of his matter by telephone. That error meant that he was deprived of his right to a hearing. The decision must be set aside, and the matter referred back to the Tribunal for reconsideration. My reasons are as follows.
Background
[4] Mr Deliu leased a property at 76 Fitzwilliam Drive, Auckland (the property) in April 2017 for a fixed term, until 31 January 2018. A bond of $4,400 was paid. In December 2018, Homes4Rent emailed Mr Deliu offering a further twelve-month period on the lease of the property. Mr Deliu declined that offer. Then, on 21 January 2018, Mr Deliu emailed Homes4Rent advising that he did not wish to extend the tenancy and would vacate the property on 31 January 2018. Homes4Rent disputed that Mr Deliu had given sufficient notice of termination. There then ensued much correspondence between them about that. At one point, Homes4Rent agreed that Mr Deliu could vacate the property without any deduction for rental arrears. But it later decided to make deductions when, upon inspection, it says it discovered the property had been damaged.
[5] Mr Deliu commenced proceedings in the Tribunal and Homes4Rent counterclaimed. Mr Deliu says that, on 5 April 2018, the Tribunal approved his request to appear by telephone conference and advised that the Ministry of Justice would “be in touch with him close to the hearing date and provided [sic] [him] with a telephone number to dial into the hearing”. Mr Deliu also says neither the Ministry of Justice nor the Tribunal ever made anymore contact with him about the hearing.
[6] It transpires the Tribunal hearing went ahead without Mr Deliu. The Tribunal then ordered Mr Deliu to pay rent arrears in the sum of $3,288.60, together with other minor costs. That sum was deducted from his bond of $4,400.
Mr Deliu’s High Court claim
[7]Mr Deliu claims:
(a)the Tribunal breached his expectation that he would be able to appear at the hearing;
(b)the Tribunal breached its statutory duty under s 93 of the Residential Tenancies Act 1986 to afford the plaintiff right of audience;
(c)the Tribunal breached his right to natural justice, pursuant to s 27 of the New Zealand Bill of Rights Act 1990, by denying him access to legal redress and/or a fair hearing;
(d)the Tribunal failed to take into account relevant considerations, namely, the plaintiff’s evidence and/or urgent request to be given a number to call and to appear;
(e)the Tribunal erred by not providing the plaintiff with a copy of its decision and reasons; and
(f)that the Tribunal acted unreasonably.
[8]Mr Deliu also makes several claims against Homes4Rent, namely:
(a)Homes4Rent waived any claim to rent by not complying with the provisions of s 22(b) of the Residential Tenancies Act 1986;
(b)Homes4Rent, by a promissory estoppel, is precluded from claiming anything other than the claim it brought against the plaintiff by virtue of its promise to return the bond in full;
(c)Homes4Rent unjustly enriched itself at the plaintiff’s expense;
(d)Homes4Rent breached its legal obligation to return the bond; and
(e)Homes4Rent committed fraud by making a materially false representation of fact, namely, that the bond would be returned and/or that there were no more issues outstanding in relation to the supposed rent due February 2018.
Position of the Tribunal
[9] The Tribunal did not appear in relation to this application and I do not have any evidence from the Tribunal as to the matters alleged by Mr Deliu. I do, however, have the benefit of a memorandum of counsel for the Tribunal, which states as follows:
The record of proceedings record that Mr Deliu requested an international telephone conference for the hearing scheduled for 13 April 2019 (record of proceedings PP0006 and 0102 refer).
The first respondent has been unable to locate any electronic evidence that Mr Deliu’s request for an international telephone conference was processed by the District Court.
This suggests that the request may have been overlooked.
In the absence of the physical file for this proceeding, the first respondent is unable to take this issue any further.
Mr Deliu’s evidence
[10] Mr Deliu explains in evidence that he had to urgently move to Europe, which drained him not only of his material resources, but also decimated him emotionally. He accepts that he will not be able to pay any of Homes4Rent’s costs if he is
unsuccessful because he is wholly impecunious, with no realistic prospects of gainful employment. He refers to the fact that he has, to the best of his knowledge and belief, a meritorious case. He refers to the transcript of the hearing, the record of proceeding, and the memorandum filed by the Crown Law Office confirming his emails to the Ministry of Justice were blocked. He confirms he was never contacted by anybody from the Ministry of Justice, the first defendant or otherwise as to joining the hearing by telephone conference. He also suggests that Homes4Rent has not incurred any costs as it has made a claim to its insurance company.
Evidence for Homes4Rent Limited
[11] Mr Michael Pinkney filed two affidavits in support of the application for security for costs. The first affidavit is succinct. It simply records: Mr Deliu has filed a statement of claim; the parties attended a telephone case management conference; and that he became aware Mr Deliu might have left New Zealand in January 2018. He confirms Mr Deliu did not attend the Tribunal hearing in April 2018 and sought to appear by telephone. He also notes that he has been advised by Police that Mr Deliu is not resident in New Zealand, having left New Zealand on 14 January 2018.
[12] Mr Pinkney’ second affidavit is much more detailed. It includes an account of what Mr Pinkney says transpired between Homes4Rent and Mr Deliu around the time of, and shortly after, the termination of Mr Deliu’s tenancy. He also gives evidence as to what transpired before the Tribunal and provides his opinion as to the reasons why Mr Deliu’s claim cannot succeed. Mr Pinkney accepts that he told Mr Deliu he could vacate on 21 January 2018 but notes that he later rescinded that offer after Mr Deliu made continual threats and became difficult about the repairs required at the property. He also says that photographs of the property were provided to the Tribunal and the Tribunal agreed that Homes4Rent could validly make deductions from the bond, which it did.
Agreement reached
[13] During the hearing on the application for security for costs, the merits of Mr Deliu’s claims came into focus. I indicated to the parties that I considered Mr Deliu’s claim against the Tribunal appeared meritorious and that I did not want to
make an order for security that would interfere with his ability to pursue that claim. I also, however, expressed much less enthusiasm about his civil claims and mooted the prospect of a staged approach to the proceedings. It then became evident that Ms Keating was prepared to take instructions about whether Homes4Rent would abide the decision of the Court on the claim against the Tribunal. Mr Deliu also indicated that if that were so, his claim against Homes4Rent could fall away, if costs were to lie where they fall.
[14] Ms Keating sought instructions. She returned with them, making clear that Homes4Rent maintained the claims against it were vexatious, but also admitted that it did not see any point in pursing costs against Mr Deliu, given he was impecunious. I turn now to the reasons I agree that the matter must be referred back to the Tribunal.
Procedural error
[15] Natural justice ordinarily demands every party before an adjudicative tribunal should have a fair and reasonable opportunity to be heard and to respond to evidence adverse to their case.1 Mr Deliu was deprived of that opportunity. He requested an opportunity to be heard by telephone which, he says, was approved. The Crown does not accept that the request was approved, but it concedes the request was made and never followed up. There is also evidence before me that the Tenancy Service told Mr Deliu that he would be provided with a telephone number to call. That never happened. Understandably, the Crown abides the decision of the Court.
[16] While Ms Keating did not pursue the point, she relevantly noted that Mr Deliu could have sought a rehearing and or appealed the decision to the Tribunal to the District Court. But I accept Mr Deliu’s explanation that he did not receive the Tribunal’s decision until it was too late to appeal, and the availability of a right to apply for rehearing is not a good reason on the facts of this case to exercise my discretion to declining relief.
[17] I am therefore satisfied the Tribunal’s decision must be set aside and the matter referred back to the Tribunal for reconsideration. While it is for the Tribunal to decide
1 White v New Zealand Stock Exchange (No 2) [2002] NZAR 342 (CA) at [41].
how it will conduct the hearing, Mr Deliu is resident now overseas and it would seem appropriate for the hearing to be conducted by telephone.
[18]There shall be orders accordingly. Costs are to lie where they fall, as agreed.
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