What was the outcome of Tenancy Tribunal case 4468946?

The tribunal order states: Suppression of the Tenant and Landlord names and identifying details.

How much money was awarded in case 4468946?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4468946?

The primary dispute was Rent arrears. Related themes: 14-day notice, Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4468946?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9250819-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4468946?

The tribunal order states: Suppression of the Tenant and Landlord names and identifying details.

How much money was awarded in case 4468946?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4468946?

The primary dispute was Rent arrears. Related themes: 14-day notice, Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4468946?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9250819-Tribunal_Order.pdf.

23 Upland Street, Brookfield, Tauranga 3110 Tenancy Tribunal Case 4468946 — Rent arrears

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Reasons

Both parties attended the hearing.

On 18 May 2023 the Tribunal made an order as follows:

ORDER

By consent, suppression of both the Tenant and Landlord names and identifying details.

The notice dated 14 March 2023 purporting to terminate this tenancy is invalid and therefore of no effect.

The claims for a retaliatory notice and exemplary damages are dismissed.

The claims to terminate this tenancy and rent arrears are dismissed.

The claim for market rent is dismissed.

The landlord must carry out the following work to the premises, which must be commenced by 30 September 2023 and completed within a reasonable time; except for repairs to the dishwasher which must be completed within 2 weeks of this order (if not done already): a. Repairs to the bowing ceiling in the lounge. b. Balcony floor replaced. c. Repairs to the front door frame. d. Repair or replace dishwasher.

As Order 6(a) is not by consent, as an alternative to compliance with the work order, rent will reduce by $170.00 per week to the previous weekly rent of $545.00 until the work is completed.

On 19 May 2023, the landlord applied for a rehearing on the grounds that: (1) New evidence for rent arrears not available at hearing. (2) New evidence for work to be carried out and need for termination opposite adjudicators opinion. (3) 14 days notices injustice dismissed to rectify damages regardless confirmed by Macpherson in hearing that this where not present at moving in of tenancy documented in inspection report. (4) Injustice dismissal of 14 day notice of illegal and dangerous use tampering of garage as permanent living space. (5) Confusing and misleading agreement advice in order in regards to work order. (6) Adjudicator not honouring tenancy agreement in regards of special condition as agreed by both parties.

Section 105(1) Residential Tenancies Act 1986 provides that the Tribunal has the power to order a rehearing where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.

Usually the party applying for the rehearing must show that something went wrong with the Tribunal’s procedure, for example, that they did not receive notice of the hearing, or they were not able to properly present their case. A rehearing may also be granted where there is new evidence that was not reasonably available at the first hearing, if it could have affected the outcome.

The District Court has held that if the Tribunal was simply wrong in its findings of fact, or its application of the law, this is not sufficient to establish a miscarriage of justice: a rehearing is not an alternative to an appeal. Furthermore, a rehearing will not be granted just because a party is unhappy with the decision, or to give them a second opportunity to present their case. 1

It is well established that: "A rehearing is not intended to provide an opportunity for a disappointed party to put further information before the tribunal. It is the task of each party to attend the original hearing fully equipped to deal with the issues. Where a party contends he has further information available, which in his view, would have been likely to alter the final outcome, it is his job to bring that information to the attention of the adjudicator at the outset.” 2

The District Court has made it clear that a challenge to the substantive findings of the tribunal are not grounds for rehearing; 3 nor is simply disagreeing with the decision. 4 The High Court has confirmed that it is not a miscarriage of justice to decline a rehearing just because evidence was not considered at the original hearing, when that evidence could have been produced at the original hearing. 5

Applicants need to show a considerable, overwhelming and obvious wrong, or a complete failure of justice, 6 which clearly sets a high evidential bar.

In summary, the tenant does not agree that a rehearing should be granted.

Has a substantial wrong or miscarriage of justice occurred?

I do not find any substantial wrong or miscarriage of justice has or may have occurred or is likely to occur for reasons given below. It is appropriate to deal with each of the grounds raised by the landlord in turn.

New evidence for rent arrears not available at hearing (i)The landlord agrees that the original rent summary was confusing and has supplied a new version. The landlord says that the tenant was 21 days in arrears at the date the application was filed on 21 December 2022. (ii)The updated version of the rent summary was reasonably available at the first hearing. Even if it was not reasonably available, it would not have affected the original outcome in any event. It is clear on the new rent summary that rent was not 21 days in arrears on 21 December 2022. (iii)I made findings of facts [at paragraph 31] that rent was not at least 21 days in arrears on the date the application was filed. I was not persuaded that there was a current arrear of $100.00. I acknowledged that that rent was in arrears when the tenant was not paying the last rent increase, but this had 1 Wellington City Council v McMillan MA 70/02, District Court Wellington, 17 June 2002. 2 Heath v Wood (Minute No. 2), District Court, 12 March 2012, Judge TJ Broadmore. 3 McMahon v Royal New Zealand Foundation for the Blind [2021] NZTT 4287050 at [52]. 4 Yogeswaran v Doubletree Properties Ltd [2021] NZDC 15704. 5 Angelo v Lehr [2022] NZHC 3033 at [73]. 6 WG & M Scott Family Trust v Webbers Cleaning Service NZTT 231/93, 8 November 1993. been rectified and the breach is not of such a nature or such an extent as to terminate the tenancy. The landlord is raising a challenge to these findings and as such, this does not form sufficient grounds for rehearing.

New evidence for work to be carried out and need for termination opposite adjudicators opinion (i)The landlord provided a letter from a builder dated 27 June 2023 outlining a scope of works. The landlord says that he did not think this was necessary at the original hearing and it supports his view that it would be untenable for the tenant to continue to live at the premises while this work is done. The landlord says that the tenant did not seek a work order for the ceiling in her application so no order should have been made. The landlord does not dispute that the notice dated 14 March 2023 to terminate the tenancy was invalid. (ii)Firstly, I find that the letter from the builder was reasonably available and could have been produced at the first hearing if sought. This does not form sufficient grounds for rehearing. (iii)I agree that the tenant did not specifically refer to a work order for the ceiling on her application, but she did refer to the roof. It became clear at the hearing that the tenant had concerns about the ceiling bowing and she thought this might be connected to the roof. A work order was made for the ceiling as the landlord agreed that it was bowing and needed to be investigated and fixed. No work order was made for the roof. The Tribunal may regulate its own procedure in such manner as it thinks fit (see section 96(4) RTA). Section 85 RTA makes it clear that the Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. I find that imposing a work order for the lounge ceiling does not amount to a procedural error or impropriety. This does not form sufficient grounds for rehearing. (iv)The landlord also appears to be making a challenge to the finding at paragraph 20, that repairs can be done safely if well planned and managed. This is a challenge to a finding of fact and does not form sufficient grounds for rehearing.

14 days notices injustice dismissed to rectify damages regardless confirmed by Macpherson in hearing that this where not present at moving in of tenancy documented in inspection report (i)The landlord says this might have been ‘overkill’ but nonetheless he reiterated his view that the tenants have damaged a light switch and fitting and he wants them to be fixed. (ii)The landlord made claims to terminate the tenancy on the grounds that the tenant has breached her obligations, and due to the nature or extent of the breach(es) it would be inequitable to refuse to terminate the tenancy (see section 56 RTA). I made findings of fact that claims of the tenant causing damage to a light switch and fitting were not proven, and this would not be of sufficient seriousness to terminate a tenancy in any event. The landlord is making a challenge to the findings of fact and as such, does not form sufficient grounds for rehearing.

Injustice dismissal of 14 day notice of illegal and dangerous use tempering of garage as permanent living space (i) The landlord says this is a serious breach and the decision was wrong. (ii) I found that the tenant’s son had been using the garage as his personal space, but I did not find that this amounted to any breach of the tenancy agreement. As above, the claim to terminate the tenancy for breach was dismissed. This is a challenge to a finding of fact and does not form sufficient grounds for rehearing.

Confusing and misleading agreement advice in order in regards to work order (i)The landlord raised the point that paragraph 18 of the order is wrong as he did not consent to the work order for the ceiling. (ii)I agree with the landlord that the words, “I make the work orders by consent” in paragraph 18 are not wholly correct as one of the work orders was not by consent. However, this is accurately reflected in the orders section of the decision at paragraph 7 and does not form grounds for rehearing.

Adjudicator not honouring tenancy agreement in regards of special condition as agreed by both parties. (i)The landlord says the tenancy agreement stated no dogs, but the parties subsequently verbally agreed the tenant could have a dog but only that specific dog (as it was old) and no other dog. The landlord says the tenancy should be terminated for this breach as there is now an aggressive dog living at the premises. (ii)I made a finding of fact that the tenant has had a dog at the premises since 2011 and the fact that there is now a different dog does not breach the previous tacit agreement. I did not make any finding as to whether or not there was ever a variation to the tenancy agreement to include only one specific dog (which is denied by the tenant). This is a challenge to the finding of fact that there has been no breach and does not form a ground for rehearing.

The application for rehearing is therefore dismissed. Other issues

There seemed to be some confusion over paragraph 7 of the original order. As I explained to the parties, if a work order is not made by consent then an alternative money order must be imposed (see sections 78(2) and 78(2AA) RTA). If the landlord does not commence repairs to the bowing ceiling in the lounge by 30 September 2023, and complete the repairs within a reasonable time, then rent will reduce by $170.00 per week (from 30 September 2023) to the previous weekly rent of $545.00 until the work is completed.

As the parties agreed to name suppression for each other for the previous order, it is appropriate that this continues and applies to this order.

Reasons

Both parties attended the hearing.

On 18 May 2023 the Tribunal made an order as follows:

ORDER

By consent, suppression of both the Tenant and Landlord names and identifying details.

The notice dated 14 March 2023 purporting to terminate this tenancy is invalid and therefore of no effect.

The claims for a retaliatory notice and exemplary damages are dismissed.

The claims to terminate this tenancy and rent arrears are dismissed.

The claim for market rent is dismissed.

As Order 6(a) is not by consent, as an alternative to compliance with the work order, rent will reduce by $170.00 per week to the previous weekly rent of $545.00 until the work is completed.

Applicants need to show a considerable, overwhelming and obvious wrong, or a complete failure of justice, 6 which clearly sets a high evidential bar.

In summary, the tenant does not agree that a rehearing should be granted.

Has a substantial wrong or miscarriage of justice occurred?

The application for rehearing is therefore dismissed. Other issues

As the parties agreed to name suppression for each other for the previous order, it is appropriate that this continues and applies to this order.

Tenancy Tribunal case 4468946 — Rent arrears at 23 Upland Street, Brookfield, Tauranga 3110

At a glance

Tenancy Tribunal case 4468946 — Rent arrears at 23 Upland Street, Brookfield, Tauranga 3110

At a glance

Claims & awards

Order

Reasons

ORDER

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

ORDER

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions