What was the outcome of Tenancy Tribunal case 4479580?

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

How much money was awarded in case 4479580?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4479580?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4479580?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9241726-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4479580?

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

How much money was awarded in case 4479580?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4479580?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4479580?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9241726-Tribunal_Order.pdf.

14b Grandfield place, Kamo, Whangarei, Northland 0112 Tenancy Tribunal Case 4479580 — Exemplary damages

Order

The application for rehearing is dismissed.

Reasons

On 22 June 2023 I made an order that RPCS Investments Company Ltd was to pay Ms Gimonet $1,860.00 in exemplary damages and compensation, and the filing fee of $20.44. I also granted name suppression to Ms Gimonet.
On 27 June Ms Gimonet filed an application for a re-hearing.
The application hearing took place in Whangarei on 26 July. Both parties attended the hearing. Mr Dinsdale represented RPCS.
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.
Ms Gimonet submitted that a substantial wrong or miscarriage of justice has occurred because: a. Mr Dinsdale provided evidence on the day of the hearing, including an email to him from the upstairs tenant. Mr Dinsdale had not previously sent her a copy of that email. She was “blindsided” by the contents of that email. b. Her evidence was “overlooked” in the decision. c. She has “new evidence”. Evidence on the day of the hearing
There is no process of discovery in the Tenancy Tribunal, and it is not uncommon for parties to bring evidence on the day of the hearing.
The content of Ms S’s email was not directly relevant to the question that I was required to answer. The question was not whether Ms S or Ms Gimonet was “in the right”. The question was whether Mr Dinsdale met his duty to take all reasonable steps to ensure that Ms S did not cause an interference with Ms Gimonet’s reasonable peace, comfort, and privacy.
The fact that Ms S and Ms Gimonet had different perceptions about who was acting reasonably and who was the victim reinforces the point that landlords should not take steps solely on the basis of unsubstantiated complaints, but should gather as much evidence as possible (and as much as is appropriate, depending on the seriousness of the accusation) before taking action.
It was not necessary for Ms Gimonet to refute every accusation in Ms S’s email.
No “substantial wrong or miscarriage of justice” occurred because Ms Gimonet did not have the opportunity to read and respond to the contents of that email at the hearing. Overlooked evidence
The issues raised under this heading essentially amount to disagreeing with my findings.
This does not provide grounds for granting a re-hearing. New evidence
The new evidence relates to: a. Information about noise control. b. Information about remediation of the wet wall in the bedroom. c. Information about the “conversion” of the bottom level of the house not being lawful.
Ms Gimonet submitted that she phoned the Noise Control team at the Whangarei District Council after receiving the order, and they “confirmed what I already knew – that they never go on private property to assess noise level”.
The comment is puzzling, given that local authorities have extensive powers (and obligations) to investigate and respond to noise complaints, to issue a noise direction or an abatement notice, and to enforce that direction or notice with powers that include seizing personal property.
In any event, this new evidence: a. Is not new (it was available at the time of the original hearing); and b. Is not directly relevant to the issues in dispute. The only reference to Noise Control in the decision is in the context of a type of evidence that may be relevant to a landlord if they are considering what steps to take in response to a tenant’s complaint about noise.
Ms Gimonet submitted that she made enquiries about the ‘wet wall’ in the bedroom and was informed that the only way to adequately resolve the problem is to excavate the earth from the exterior of the wall, then apply a sealant to the exterior wall.
I agree that the landlord did not meet its maintenance duty in respect of the bedroom wall. That is why I made an award of compensation to Ms Gimonet in respect of this issue.
The argument about ‘unlawful premises’ was not raised at the original hearing and it was not part of Ms Gimonet’s application. It is a new issue. If Ms Gimonet wishes to pursue it, she must file a new application. Outcome
Ms Gimonet has not established that a substantial wrong or miscarriage of justice has occurred, according to criteria set out above.
Therefore the application for a re-hearing must be dismissed. N Blake, 02 August 2023

Order

The application for rehearing is dismissed.

Reasons

On 22 June 2023 I made an order that RPCS Investments Company Ltd was to pay Ms Gimonet $1,860.00 in exemplary damages and compensation, and the filing fee of $20.44. I also granted name suppression to Ms Gimonet.
On 27 June Ms Gimonet filed an application for a re-hearing.
The application hearing took place in Whangarei on 26 July. Both parties attended the hearing. Mr Dinsdale represented RPCS.
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.
Ms Gimonet submitted that a substantial wrong or miscarriage of justice has occurred because: a. Mr Dinsdale provided evidence on the day of the hearing, including an email to him from the upstairs tenant. Mr Dinsdale had not previously sent her a copy of that email. She was “blindsided” by the contents of that email. b. Her evidence was “overlooked” in the decision. c. She has “new evidence”. Evidence on the day of the hearing
There is no process of discovery in the Tenancy Tribunal, and it is not uncommon for parties to bring evidence on the day of the hearing.
The content of Ms S’s email was not directly relevant to the question that I was required to answer. The question was not whether Ms S or Ms Gimonet was “in the right”. The question was whether Mr Dinsdale met his duty to take all reasonable steps to ensure that Ms S did not cause an interference with Ms Gimonet’s reasonable peace, comfort, and privacy.
The fact that Ms S and Ms Gimonet had different perceptions about who was acting reasonably and who was the victim reinforces the point that landlords should not take steps solely on the basis of unsubstantiated complaints, but should gather as much evidence as possible (and as much as is appropriate, depending on the seriousness of the accusation) before taking action.
It was not necessary for Ms Gimonet to refute every accusation in Ms S’s email.
No “substantial wrong or miscarriage of justice” occurred because Ms Gimonet did not have the opportunity to read and respond to the contents of that email at the hearing. Overlooked evidence
The issues raised under this heading essentially amount to disagreeing with my findings.
This does not provide grounds for granting a re-hearing. New evidence
The new evidence relates to: a. Information about noise control. b. Information about remediation of the wet wall in the bedroom. c. Information about the “conversion” of the bottom level of the house not being lawful.
Ms Gimonet submitted that she phoned the Noise Control team at the Whangarei District Council after receiving the order, and they “confirmed what I already knew – that they never go on private property to assess noise level”.
The comment is puzzling, given that local authorities have extensive powers (and obligations) to investigate and respond to noise complaints, to issue a noise direction or an abatement notice, and to enforce that direction or notice with powers that include seizing personal property.
In any event, this new evidence: a. Is not new (it was available at the time of the original hearing); and b. Is not directly relevant to the issues in dispute. The only reference to Noise Control in the decision is in the context of a type of evidence that may be relevant to a landlord if they are considering what steps to take in response to a tenant’s complaint about noise.
Ms Gimonet submitted that she made enquiries about the ‘wet wall’ in the bedroom and was informed that the only way to adequately resolve the problem is to excavate the earth from the exterior of the wall, then apply a sealant to the exterior wall.
I agree that the landlord did not meet its maintenance duty in respect of the bedroom wall. That is why I made an award of compensation to Ms Gimonet in respect of this issue.
The argument about ‘unlawful premises’ was not raised at the original hearing and it was not part of Ms Gimonet’s application. It is a new issue. If Ms Gimonet wishes to pursue it, she must file a new application. Outcome
Ms Gimonet has not established that a substantial wrong or miscarriage of justice has occurred, according to criteria set out above.
Therefore the application for a re-hearing must be dismissed. N Blake, 02 August 2023

Tenancy Tribunal case 4479580 — Exemplary damages at 14b Grandfield place, Kamo, Whangarei, Northland 0112

At a glance

Tenancy Tribunal case 4479580 — Exemplary damages at 14b Grandfield place, Kamo, Whangarei, Northland 0112

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions