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Smythe v Graaf [2018] NZDC 25805

Published 27 August 2019

Appeal of Tenancy Tribunal — appeals out of time applications. The appellant appealed an order of the Tenancy Tribunal refusing a second application for a re-hearing of the original tenancy claim brought by the respondent. The respondent had applied to the Tenancy Tribunal originally seeking rent arrears and compensation for cleaning, rubbish removal, missing items and other issues. The Tribunal ordered the appellant to pay $1208.09. The appellant applied for a re-hearing out of time, which was dismissed. The appellant applied again for a second re-hearing which was again out of time, and was dismissed, leading to the current appeal. The background of the case was that the respondent claimed the appellant was a tenant in her property. The appellant denies this, stating he was merely a "guardian"; looking after the property for the respondent, as a friend, and used the adjacent land for his business. He maintained was renting a different property during this period. In the original hearing the appellant was absent and this was the grounds of the first re-hearing application (out of time). The Adjudicator in the original case determined that there was a tenancy existing, which arose from an oral agreement between the parties where rent free use of the premises was to be exchanged for work on the farm. Further, the agreement was later altered to incorporate rent payments, of which the Adjudicator found the appellant was in arrears. The Judge considered the appellants reasons for the out of time applications. On the first application, the Judge was not persuaded by the appellant's claims that he had been unable to find the contact details for the Tribunal to make them aware of his inability to attend due to work commitments. This was especially hard to accept given the appellant had family who worked at the District Court. On the second application, which was again out of time, the appellant wished to introduce new evidence. This was also not accepted by the Tribunal and the Judge agreed with that finding. Again the appellant blamed work commitments, however no adjournment was sought. The Judge held that in both instances there was no "serious risk of injustice" to allow the out of time applications to move forward and so the appeal was dismissed. Judgment Date: 13 December 2018 .

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