Deliu v Tenancy Tribunal - [2020] NZHC 1220

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deliu v Tenancy Tribunal

Details

AGLC: Deliu v Tenancy Tribunal [2020] NZHC 1220
Case: [2020] NZHC 1220
Decision Date: 4 June 2020

CaseChat Overview and Summary

Francisco Catalin Deliu, the plaintiff, brought proceedings against the Tenancy Tribunal and Homes4Rent Limited, the defendants, in the High Court of New Zealand. Mr Deliu was a tenant of a property managed by Homes4Rent and had commenced proceedings in the Tenancy Tribunal seeking repayment of his $4,400 bond. Homes4Rent counterclaimed for rental arrears and repair costs. Mr Deliu alleged that 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 claims that the Tribunal acted unfairly and 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.

The central legal issues the court had to decide were whether the Tribunal breached Mr Deliu's right of audience, his right to natural justice, and its statutory duty under section 93 of the Residential Tenancies Act 1986. The court also had to determine whether the Tribunal took into account relevant considerations and whether it acted unreasonably. Additionally, the court needed to decide on Mr Deliu's claims against Homes4Rent, including whether Homes4Rent waived any claim to rent, was precluded from claiming anything other than the claim it brought against Mr Deliu by virtue of its promise to return the bond in full, unjustly enriched itself, breached its legal obligation to return the bond, and committed fraud.

The court found that the Tribunal erred by failing to action Mr Deliu's request to join the hearing by telephone, which meant that he was deprived of his right to a hearing. The court held that the decision must be set aside, and the matter referred back to the Tribunal for reconsideration. The court was satisfied that the Tribunal breached Mr Deliu's expectation that he would be able to appear at the hearing, breached its statutory duty under section 93 of the Residential Tenancies Act 1986 to afford him the right of audience, and breached his right to natural justice. The court found that the Tribunal failed to take into account relevant considerations, namely, Mr Deliu's evidence and/or urgent request to be given a number to call and to appear. The court also found that the Tribunal acted unreasonably.

The court ordered that the decision of the Tenancy Tribunal be set aside and the matter referred back to the Tribunal for reconsideration. The court noted that it would seem appropriate for the hearing to be conducted by telephone, given Mr Deliu's current overseas residency. The court also ordered that costs were to lie where they fell, as agreed.

Orders