Matthew Ryan won a tribunal hearing to recover $20,000 in rent and damages from EU diplomat and then MFAT stepped in, sought rehearing on diplomatic immunity grounds.
A rehearing has been granted in the case of an EU diplomat who owes her former landlord $20,000.
Tenancy Tribunal adjudicator Rex Woodhouse said there had been a miscarriage of justice because the tribunal had never considered the diplomatic immunity of the EU's deputy head of mission Eva Tvarozkova.
TheMinistry of Foreign Affairs (Mfat) and lawyers for the EU delegation had argued for a rehearing so that Tvarozkova's diplomatic status could be considered.
The EU's lawyers also wanted the tribunal's judgment against their diplomat to be quashed. That will be decided at a later hearing.
Mfat has asked the EU delegation for a waiver for Tvarozkova in relation to a Tenancy Tribunal dispute.
Tvarozkova was told by the tribunal last month that she had to pay her former landlord Matthew Ryan $20,000 for unpaid rent and damaged property at a Wellington townhouse.
However, the tribunal did not consider Tvarozkova's automatic immunity as a diplomat. A hearing took place this afternoon to re-examine the matter.
Matthew Ryan on the deck of his house in Karaka Bay, Wellington, which he rented to a foreign diplomat. Photo / Mark Mitchell
Mfat's lawyers said the tribunal's failure to consider the diplomat's immunity at the initial hearing in March meant a "vital material fact" had been omitted from the case.
There has been a recent case in Canada in which a judge ruled that immunity did not apply to commercial transaction, including unpaid rent.
But Mfat's lawyer Phirak Appleton argued that the Canadian judge had taken a broad interpretation of commercial transaction which went against legal precedent.
To apply this ruling to New Zealand would capture a large number of activities by many foreign missions in this country, she said.
Cullen agreed, saying there was an international consensus that commercial activities related only to activities from which a diplomat could profit. That was opposed to daily activities like leasing a property and finding somewhere to live.
Tvarozkova was not at the hearing.
She was also not at the initial hearing. But Cullen said today that she had contacted tenancy services before the March hearing to say she had immunity and would not be attending.
He said a rehearing should be granted or the case should be quashed because of the failure to take into account her immunity.
Ryan, who represented himself at the tribunal, "categorically" rejected the EU and Mfat lawyers' calls for a rehearing.
He said Tvarozkova had failed to show up at the original hearing and did not take up her right to appeal the decision.
The Geneva Convention was not designed to protect tenants who did not pay their rent, he said.
"I am just seeking the rights that the tenancy laws provide me as a landlord."
A decision to grant a re-hearing would fly in the face of the Geneva Convention and would indicate that tenancy agreements were "not worth the paper they're written on", he said.
Tvarozkova did not sign the rental agreement as a diplomat but as a private citizen, he said - a claim that was earlier disputed by her lawyers.
A tribunal ruling released in March said the diplomat had rented the "high quality" Wellington property, which is valued at $1.5 million, for $1500 a week.
She had a fixed-term lease until September but left the property early.
The landlords successfully applied to get back the unpaid rent until the house was tenanted again – a total of $17,357.
They also successfully applied for the costs of damage to blinds and an internal lift, and the cost of an alarm callout when the tenant was overseas.
Mfat's lawyers appealed the decision and asked for a rehearing, the tribunal's report said.
"Mfat seeks the order to be set aside on the basis that the proceeding should have not commenced, and no decision issued against the tenant, on the basis that she is a diplomat, and immune from any action in a civil proceeding in New Zealand."
Ryan said last month that Mfat's response set a poor precedent.
"It's concerning for any landlord who looks at renting a property to a diplomat," he said.
However Mfat later said it had asked the EU delegation to consider waiving diplomatic immunity.
Who is Eva Tvarozkova
According to Tvarozkova's CV, posted online, she is from Slovakia and has been posted in New Zealand since 2014.
It says she speaks fluent English, German, French and Czech, and has a good knowledge of Russian.
She joined the EU in 2008. Before arriving in Wellington, she was political co-ordinator for relations with New Zealand and Australia in the European External Action Service HQ in Brussels.
Her CV lists her as the negotiations co-ordinator for the "Partnership Agreement on Relations and Co-operation between the EU and New Zealand".
