What was the outcome of Tenancy Tribunal case 4474360?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 4474360?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4474360?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4474360?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9941672-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4474360?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 4474360?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4474360?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4474360?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9941672-Tribunal_Order.pdf.

94A Archers Road, Glenfield, Auckland 0629 Tenancy Tribunal Case 4474360 — Cleanliness

Order

The application for rehearing is dismissed.

Reasons

The Tribunal has received an application for a rehearing, filed by the tenants. The Tribunal must determine whether a rehearing will be granted.

BACKGROUND

On 14 August 2023 the Tribunal issued a decision which required the tenants to pay the landlord $150.00, but otherwise all further claims from the landlord and tenant were dismissed. The landlord had claimed compensation for damage to two shelves and cleaning, but was only successful in relation to the claim for one shelf. The tenants claim was in relation to carpet, but that was wholly unsuccessful. The tenants now seek a rehearing.
For the purpose of the rehearing application, I set out the relevant background as follows: a. On 5 January 2023 the tenants filed an application with the Tribunal seeking compensation and exemplary damages against the landlord. b. A hearing was initially scheduled for 27 February 2023. However the landlord filed an application against the tenants on 22 February 2023. c. The hearing was rescheduled to 14 August 2023 and an order issued that same day as set out above. d. The tenants apply for a rehearing on the following grounds: i. Reasons 2 was “wrong and inaccurate”. ii. The landlord had entered the premises without prior notice. iii. The “adjudicator improperly did not ask for any evidence from tenant to support landlord application and to support tenants claims”. iv. The tenants claim for exemplary damages were not properly addressed. v. The landlord failed to meet obligations around health and safety and in misleading the tenant. vi. Property manager has not complied with insurance obligations. vii. New evidence has been found, being a letter from a family friend and photographs. viii. On 29 August 2023 I directed that a telephone hearing be convened to decide if a rehearing would be granted. In making that order, I set out the relevant law that I would consider, as I will again set out below. ix. On 12 February 2023 I convened a telephone hearing to hear from the parties before deciding whether a rehearing would be granted. The tenants were assisted by an interpreter.

RELEVANT LAW

Section 105 of the Residential Tenancies Act 1986 relates to rehearing’s. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
The applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in the District Court Judgment of Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard, and that: [18] ... They most obviously apply ... to cases of procedural error eg a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available. [19] In my view, however, the words do not cover a complaint that the Tribunal was merely mistaken or wrong in its findings of fact or in its application of the law. There are two reasons for this. First the strength of the language in s 105 is such that something more than a mere wrong decision must be shown. The section does not speak of a decision being wrong, but of a substantial wrong or miscarriage of justice occurring. This implies obvious injustice, not merely an erroneous decision. [20] Secondly, if a mere erroneous decision is enough, whether the error is factual or legal or both, it would enable parties to in effect appeal any decision twice: once to the very Tribunal which made it by way of an application for rehearing, and then again to the District Court against the grant or refusal of the application for rehearing. Not only does that offend the general hierarchical nature of the appeal system, it would also make the time limit for filing notice of appeal against an original decision nugatory.
The availability of new evidence may not justify a rehearing if that evidence was available and could have been obtained for the original hearing, even if it is better evidence than that given at the original hearing. In Mason v May [1995] NZTT 1328/95, the Tribunal said that, before a rehearing will be granted on the grounds of new evidence, “an applicant has to show that reasonable diligence was used to produce all relevant evidence at the hearing, and there must be an explanation as to why the new evidence only came to light after the hearing”.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.

ANALYSIS

The tenants seek a rehearing of the Tribunals order from 14 August 2023. The onus to establish grounds to approve a rehearing sit with the tenants. It is the tenants who must prove a substantial wrong or miscarriage of justice, or even the potential for that situation.
Disagreeing with the conclusions the Tribunal reached is not enough. There are centuries of precedent in the legal system, that decisions issued by courts and tribunals are final, save for appealing those decisions to a higher body. The concept of finality in litigation does not support a party coming back to the same body again, to have another chance to argue the case again if they do not like the outcome. If there was no finality, then parties would not need to comply with the orders, they could simply keep trying for a more favourable result.
The landlord’s position at the hearing today is that the landlord opposes the rehearing application.
For the reasons as I will now set out, the tenants have not established grounds to approve a rehearing. I will address the matters that are the subject of the rehearing request as follows: Order 2 was “wrong and inaccurate”.
The tenants state that Reason 2 where the Tribunal recorded the date of the tenancy was between “16 September 2022 as a fixed term tenancy until 16 September 2022” was wrong. I accept there was a typographical error, and the tenancy was not for only 1 day. Following discussion, the tenants accepted that nothing would turn on this, but I do agree with the tenants that this was a drafting error.
I agree there was an error with the date recorded, but it would not in any way affect the outcome of the original hearing. The landlord had entered the premises without prior notice.
The tenants state that the landlord entered the premises without permission and took photographs.
I raised with the tenants that there was no application for unlawful entry, and therefore nothing that could have been adjudicated in relation to that. The tenants responded that they did not have sufficient time to advance that claim given when the entry occurred.
There is no substantial wrong or miscarriage of justice here. The Tribunal only adjudicates matters that are the subject of an application, and advanced at the hearing which is not the case here. The “adjudicator improperly did not ask for any evidence from tenant to support landlord application and to support tenants claims”.
The tenants consider that following the final inspection, the landlord did not raise any issues with the shelf, and as I understand matters, the tenants consider the Tribunal should have done more to obtain evidence supporting that to be the case.
As I noted, this is a case where the Tribunal made a finding against the tenants on the evidence that was available, that was an outcome from the Tribunal hearing that was open to me on the evidence.
There is no expectation on the Tribunal to elicit evidence so as to support one party or the other. In fact if I were to have done that, I would not be acting impartially. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
The Tribunal cannot order a rehearing just because a party does not agree with the adjudicators assessment of the evidence. The tenants claim for exemplary damages were not properly addressed.
The tenant considers that the Tribunal had not considered the claim for exemplary damages around the carpet sufficiently.
In order to have exemplary damages ordered, the tenants would need to prove a breach of some legal obligation the landlord had in relation to the carpet or any other obligation. For the reasons as I set out in the original order, the tenants have not established any legal obligation to be breached, so exemplary damages cannot under any circumstances be ordered. The landlord failed to meet obligations around health and safety and in misleading the tenant.
The tenant considers that the landlord has failed to comply with obligations around health and safety with respect to the carpet and cleanliness.
I am not persuaded that there is any substantial wrong or miscarriage of justice here. I am satisfied that the issues that were raised by the tenants at the hearing were considered. As set out above, the Tribunal cannot extract grounds or evidence from applicants to try to find a basis to make an order against the other party (the respondent).
I consider that the matters advanced by the tenants at the hearing were considered. Property manager has not complied with insurance obligations.
The tenants consider that the landlord has not complied with its insurance obligations with the tenancy agreement. Again that was not the subject of any application, so could not have been adjudicated by the Tribunal. New evidence has been found, being a letter from a family friend and photographs.
The tenants state they have new evidence that is relevant.
Firstly the tenant refer to an undated document from Gertruida Helena Minnaar, which appears to be directed to Tenancy Services, were principally in relation to the state of the carpet. The tenant states that this letter was received last year. The tenant accepts that this was not provided with the application. I cannot see any substantial wrong or miscarriage of justice (or event potentially) because: a. The tenants had this evidence prior to the last hearing, and they could have admitted it if they had wanted to. b. The Tribunal is unlikely to have placed any evidence on that statement, because it comprises principally an unqualified opinion from a non- expert source. There were photographic records available to the Tribunal which provided a better impression of the state of the carpet. c. The statement would not have impacted the outcome of the hearing in anyway.
In relation to the photographs, the tenant states that those photographs show that the bin was not missing. This is irrelevant, because there was no orders made in relation to the bin.

CONCLUSION

For the reasons set out above, there are no grounds to approve a rehearing, the application for rehearing is dismissed.

Tenancy Tribunal case 4474360 — Cleanliness at 94A Archers Road, Glenfield, Auckland 0629

At a glance

Tenancy Tribunal case 4474360 — Cleanliness at 94A Archers Road, Glenfield, Auckland 0629

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LAW

ANALYSIS

CONCLUSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LAW

ANALYSIS

CONCLUSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions