SAM O'CONNOR AND TRUNK PROPERTY AGAINST SUNDAY STAR-TIMES

Case Number: 2439

Council Meeting: MAY 2015

Verdict: Not Upheld

Publication: Sunday-Star Times

Ruling Categories: Errors, Apology and Correction Sought
Privacy
Comment and Fact
Headlines and Captions
Balance, Lack Of
Misrepresentation, Deception or Subterfuge
Photographs
Accuracy
Unfair Coverage


1. Sam O’Connor either for or in conjunction with Trunk Property Ltd claims Sunday Star Times failed to comply with the Principles 1 (accuracy, fairness and balance), 2 (privacy) 4 (comment and fact), 6 (headlines and captions), 9 (subterfuge), 11 (photographs and graphics) and 12 (corrections) in relation to a story headed “Busted ‘landlord’ repays teens” published in Sunday Star Times’ print edition and via the Stuff online site on January 18, 2015

2. The Press Council does not uphold the complaint.

Background
3. The stories, while not identical but which are substantially the same, detailed the experiences four “teenagers” had when renting a house in Ponsonby, Auckland from Mr O’Connor. It transpired that Mr O’Connor did not own the property but rather had himself rented it from the true owner for $550 pw. The property was in turn sublet to the teenagers on 20 August, 2014 for $645 pw. The agreement with the property owner did not allow subletting. The matter had been referred to the Tenancy Tribunal and on September 25, 2014 the head tenancy was terminated. The Tribunal action in this report was brought by two of the teenagers who sought exemplary damages and refunding of expenses from Trunk Property totalling $2165. The stories referred to Mr O’Connor having repaid a sum of money to the teenagers which was reported as “reparations”.

4. The stories referred in a general way to the Tribunal findings and to Mr O’Connor’s claims that the teenagers’ arrangements were with “Trunk Property”. He claimed he was merely Trunk Property’s employee. The story noted Mr O’Connor’s comment to the effect that he was unaware that subletting was “against the Tenancy Act”.

The Complaint
5. There are multiple complaints which on the face of it are wide ranging. Basically it is claimed that:

(a) the headline “Busted ‘landlord’ repays teens” was misleading because Trunk Property was a sub landlord, not a landlord. Further the use of the word “repays” suggested that Mr O’Connor or Trunk Property had a legal obligation to repay the teenagers when in fact the payment was entirely gratuitous. This aspect of the complaint is expanded upon in relation to the body of the story where there is continued reference to either Mr O’Connor or Trunk Property being the “landlord”. The complainants say that neither were ever the landlord. The stories should have referred to Trunk as being the “sub landlord”;

(b) the reference in the story to the fact the teenagers had “found” Mr O’Connor was wrong. The complainants say that teenagers did not “find” Mr O’Connor. The teenagers in fact found Trunk. Mr O’Connor says he is just one of “multiple” Trunk employees;

(c) the reference in the stories to the fact that the teenagers were to pay Mr O’Connor $645.00 a week was inaccurate. The reference should have said that the teenagers had agreed to pay Trunk;

(d) that the stories were inaccurate in referring to Mr O’Connor “losing” Tenancy Tribunal cases relating not only to the Ponsonby property occupied by teenagers but also to a second property where there was a similar subletting arrangement. Mr O’Connor says that he lost one, not two, Tribunal cases. The second case was settled;

(e) the use of the word “reparations” in the stories is wrong. The complainants say the payment of $2,165 made to the teenagers was made out of “good faith as a gift for stress and other factors”. Nothing was found to be “legally” owed;

(f) the implication in the stories that the tenancy agreement with the teenagers was somehow unlawful. The complainants say that there is nothing illegal about a sub tenancy in the context of the Residential Tenancies Act.

(g) the stories wrongly referred to the difficulties the teenagers had in contacting Mr O’Connor. The complainants say they never tried to contact Mr O’Connor. All communications they had were with Trunk.

(h) the stories referred to Mr O’Connor allowing one of the teenagers to “sleep in a concrete wash house”. Mr O’Connor says he never made such a statement. He says that “any and all” communications would have come from one of Trunk’s staff.

(i) the reference that Mr O’Connor threatened flat mates in various ways including via emails. The complainants say that Mr O’Connor sent no such emails. Any such communications “would have come” from Trunk.

(j) the photograph of Mr O’Connor published in the Sunday Star Times edition was obtained without consent and as a result of subterfuge.

The Response
6. Sunday Star Times rejects all the claims. The newspaper says Mr O’Connor is Trunk’s sole shareholder and sole director. The newspaper refers to the attempts Mr O’Connor has made to distance himself from Trunk whereas in reality all communications with the company have been through him. The newspaper also refers to the various claims relating to provisions in the Residential Tenancy Act (particularly as to the issue whether subletting is permitted in terms under that Act or not). The newspaper points out however that the intricacies of the legislation is not the question. The short point is that the Tribunal had ruled against Mr O’Connor twice in relation to two separate sub- letting arrangements. The true nature of these had not been disclosed to the people Mr O’Connor had persuaded to occupy the properties.

7. The newspaper takes issue with the complainants’ claims around the use of the word “repays” in the headlines. The newspaper says that the money, which really related to improper charging, had been refunded.

8. The newspaper points to various particular corrections made to the online Stuff story to accommodate narrow points the complainants had made and in respect of which the newspaper had accepted.


The Decision
9. The Press Council has been provided with a great deal of material relating to this complaint particularly the extensive correspondence passing between the complainants and the newspaper and also, significantly, Tenancy Tribunal decisions upon which these stories are based.

10. The Council sees no need to canvass the many and varied points raised in this background material. Rather the Council sees the essential issues as being relatively stark.

11. The Council does not accept the proposition that the complainants have been somehow wronged (in the context of the Council’s principles) through having been described in the stories as a “landlord” when one or other of them was actually a “sub landlord”. While the terms “landlord” and “sub landlord” have distinct legal meanings there is no question here that the teenagers unwittingly found themselves as sub tenants at the mercy of the property owner. They were unaware that as soon as they treated with Mr O’Connor and/or Trunk the conditions of the head tenancy were immediately breached. The short point is that as soon as the property owner discovered the subletting the head tenancy was terminated. The teenagers, as subtenants, thereby lost their right to occupy the property without any recourse. This is the mischief at which the Tribunal applications and findings were directed.

12. Mr O’Connor and Trunk can have no complaint as a result.

13. The Council does not agree with the complaints about the distinction between Mr O’Connor on the one hand and Trunk on the other. Despite what he says Mr O’Connor controlled the company. While Mr O’Connor refers to the company having other “employees” nothing has been provided substantiating this aspect. Indeed in one of the Tenancy Tribunal decisions forwarded by the newspaper the evidence of Sam O’Connor states “He set up a company called Trunk Property to avoid personal liability to potential flat-mates.” Leaving aside the legal distinctions the Council finds Trunk was Mr O’Connor’s alter ego. It was not unfair for the newspaper to refer to Mr O’Connor as the originator of the arrangement with the teenagers as the Tenancy Tribunal indeed found.

14. Nor does the Council agree with the complainants on the reparations point. Whether or not Mr O’Connor or Trunk had been found by the Tribunal to be liable to refund money to the teenagers, the fact remains that the payment was only made following the Tribunal’s adverse findings over Mr O’Connor’s actions.

15. Mr O’Connor/Trunk Property initially complained variously that the photo that accompanied the article was obtained from his Facebook page and/or taken illegally at the Tenancy Tribunal hearing.

16. Mr O’Connor was advised that the Press Council did not deal with legal issues, but had previously ruled that photographs sourced from Facebook were generally considered to be in the public arena (cases 2173 and 2166)

17. The Council notes that Fairfax, while not making any admissions or concessions, removed the photo from the online story on March 11.

18. Mr O’Connor has requested anonymity and non-publication of the Press Council ruling. The Press Council notes that a similar request was made to the Tenancy Tribunal and declined.

19. The Press Council process is open and transparent. Anonymity is granted only in exceptional circumstances and such circumstances do not exist in this case. Furthermore the media have a right to report court and tribunal proceedings and there is a public interest in this ruling, in favour of the newspaper, being publicised.

20. Although not part of the complaint the Press Council noted that the Tenancy Tribunal decisions in relation to Trunk Property and Sam O’Connor show a repeated failure to lodge tenancy bonds. This is a further reason for there being a public interest in publicizing this matter.

21. The complaints are not upheld.

Press Council members considering the complaint were Sir John Hansen, Tim Beaglehole, Liz Brown, Chris Darlow, Peter Fa’afiu, Jenny Farrell, Sandy Gill, John Roughan, Vernon Small. Mark Stevens took no part in the consideration of this complaint.