Bekithemba J Mahlamvana-Rushizha v Zeta Management Ltd

JurisdictionNew Zealand
CourtDistrict Court
JudgeB A Gibson
Judgment Date30 September 2013
Date30 September 2013
Docket NumberCIV-2013-004-1165



Bekithemba J Mahlamvanarushizha
Zeta Management Limited

RS Pidgeon for Applicant

S C Price and Ms D M Cross for Respondent

Application to set aside a stay of proceeding on the grounds that there was no jurisdiction to grant it — dispute over rental paid for accommodation in respondent's premises — Tenancy Tribunal determined that it did not have jurisdiction to decide applicant's claim or respondent's cross-claim — respondent served notice on applicant to vacate premises — District Court (“DC”) granted stay pending appeal — respondent said that Tribunal's decision was a declaration and there was therefore nothing to stay — argued that the stay in effect acted as interim relief and the DC did not have inherent jurisdiction to grant this — whether there was jurisdiction to grant a stay pending the appeal.

The issue was whether there was jurisdiction to grant a stay pending the appeal.

Held: Section 117 RTA (appeal to District Court) provided that the filing of a notice of appeal did not act as a stay of proceedings unless the Tribunal or a DC Judge on application so determined. It was correct that it was not possible to stay enforcement of the Tribunal decision pending the appeal because there was nothing to stay; it was merely a declaration that the Tribunal did not have jurisdiction.

While the DC did not have an inherent jurisdiction nor an express power to grant urgent relief in support of an appeal, it did have an inherent power ancillary to its particular jurisdiction to enable it to act effectively with that jurisdiction.

The applicant had an express right to appeal to the DC under the RTA. That right of appeal would be rendered nugatory if the respondent were, in the meantime, free to evict him. It could not be said that the appellant's case was so hopeless that it was not at least arguable. To give effect to the statutory right to appeal, it was necessary to direct the respondent not to take further steps to remove the applicant from the premises.

Respondent directed not to take any step to remove applicant pending hearing of the appeal.



The applicant resides in a unit at Princeton Apartments in Symonds Street, Auckland, managed by the respondent, which manages 100 of the approximately 140 units there. It provides accommodation on two bases, short stays at a daily rate of $27.85 and longer term stays, principally accommodation rented to students, at $35 per night. The weekly rental in respect of the two types of accommodation is $195 and $245 respectively. The longer term accommodation is for a minimum of six months, and up to a year.


On 3 February, 2012 the applicant moved into an apartment. The applicant's evidence before the Tenancy Tribunal was that he chose the apartment complex as a result of seeing an advertisement in Trade Me on 29 January, 2013 which advertised a one bedroom apartment at $195 each week together with one bathroom and stated the accommodation was ideal for students. The respondent accepted in evidence before the Tenancy Tribunal that the advertisement was placed by it on Trade Me.


The evidence before the Tribunal was that the applicant paid $245 for a rental for seven days when he registered at the apartment complex on 3 February, 2012. He made one other payment of $245 on 9 February, 2013, then reduced the rental to $195 each week.


There was a dispute between the parties as to whether the applicant had a fixed term contract of at least six months which entitled him to the reduced rental of $195 per week or whether he was a short stay occupant of the premises.


The applicant applied to the Tenancy Tribunal asserting that a written tenancy agreement had not been entered into between the parties and so the tenancy arrangement meant that it was a periodic tenancy in terms of the definition of the same in the Residential Tenancies Act 1986. Various claims were made asserting breaches of the Act by the respondent, and the remedy sought included a claim for exemplary damages for the breaches.


The applicant's claim failed and in a decision issued on 2 July, 2013 the Tribunal found that the agreement between the parties fell within the exclusion of the application of the Act set out in s 5(k) of the Residential Tenancies Act 1986 and consequently the Tribunal did not have jurisdiction to hear the application or the cross-claim brought by the respondent. Both claims were struck out for want of jurisdiction.


On 10 July, 2013, the respondent served a notice to vacate the premises on the applicant. The applicant then brought an appeal in this Court from the decision of the Tribunal, the notice of appeal being dated 11 July,...

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