What was the outcome of Tenancy Tribunal case 4539730?

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

How much money was awarded in case 4539730?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4539730?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4539730?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10348933-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4539730?

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

How much money was awarded in case 4539730?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4539730?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4539730?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10348933-Tribunal_Order.pdf.

Unit/Flat Apartment 306, 168 Victoria Street, Te Aro, Tenancy Tribunal Case 4539730 — Rent arrears

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearings on 20 September 2023 and 13 May 2024 to consider the rehearing application filed by the tenant.
On 23 July 2023, I acceded to the landlord’s claim for rent arrears, cost to readvertise calculated at 1 week’s rent and filing fee reimbursement, and directed the Bond Centre is to distribute the bond to the parties accordingly. Grounds advanced in support of a rehearing
The tenant has applied for a rehearing of my determination on these grounds: a. The adjudicator made a factual finding that the tenant had abandoned the premises and that section 61(3) of the Act applies without the issue being raised at the hearing and without evidence. b. The adjudicator’s decision does not refer to evidence put before the Tribunal relating to the fact that the landlord had unreasonably declined some applicants for the property. Reasons for the Tribunal decision had not been sufficiently covered in the decision and the adjudicator relied on novel points not raised at the hearing. c. The adjudicator did not take into account evidence about reduction in the pool of prospective tenants and if granted a rehearing, the tenant can demonstrate unequivocally that the landlord did reduce the pool of prospective tenants. The adjudicator has taken the tenant’s response to the landlord’s email about reduction to the pool of potential applicants out of context. d. By concluding that an appropriate measure of the landlord’s loss is based on a week’s rent, the adjudicator used irrelevant evidence to reason backwards and approached this assessment in a manifestly irrational manner to the tenant’s detriment. e. The adjudicator failed to consider the tenant’s submission regarding operation of the caps in the tenancy agreement. f. The adjudicator failed to consider the landlord’s failure to itemise costs when explicitly asked to by the tenant, even though this was the subject of some probing by the adjudicator during the hearing but is not mentioned in the reasons of the decision. g. The adjudicator did not take into account public interest submissions in respect of the tenant’s request for non-publication of the tenant’s name. The refusal to grant name suppression defeats the tenant’s right to be protected and is a deprivation of procedural rights. h. Each issue identified above gives rise to a substantial miscarriage of justice (or real risk of such a miscarriage of justice) but also in the alternative that they cumulatively meet that threshold. Legal principles on determination of an application for rehearing
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.
In Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy considered the provision “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur” to be strong words which set a high standard and most obviously apply to cases of procedural error or discovery of new evidence.
Those words however cannot cover a complaint that Tenancy Tribunal was merely mistaken or wrong in its findings of fact or application of law. Where the grounds relied on in application for rehearing are complaints about legal correctness of decision they should have been dealt with by way of appeal. No distinction can be made between errors of law that are grave enough to constitute a substantial miscarriage of justice and those which are not.
More recently, in Scott v Sidhu [2024] NZDC 1549, Judge Harrop dealt with 2 appeals from the Tenancy Tribunal, one in respect of the substantive decision awarding, inter alia, general damages against the landlord and the other, the decision refusing the landlord’s application for rehearing.
Judge Harrop dealt with the landlord’s appeal against the refusal to grant her a rehearing first because if that appeal was upheld, the obvious remedy would be to grant the rehearing and the matter would be referred back to the Tribunal to be heard by a different adjudicator.
Considering the substantive points raised by the appellant on why her application for a rehearing should have been granted, Judge Harrop held at [25] that the Tribunal’s obvious focus under section 105(1) RTA is on the fairness of the hearing process and in respect of complaints about the substance of the Tribunal’s decision, as opposed to the process by which it was reached, there are, of course, appeal rights to address those.
Judge Harrop reiterated that the merits of the case are able to be and have been challenged by the landlord in her appeal against the substantive decision.
In dismissing the landlord’s rehearing appeal, Judge Harrop accepted the Tribunal’s assessment that many of the landlord’s criticisms relate to the merits of the case (rather than the process) which merits of the case were later considered by the learned judge under the appeal against the substantive decision.
On the appeal against the substantive decision, it is noteworthy that Judge Harrop ultimately found that the Tribunal was wrong to have awarded general damages of $500 for breach of section 38(2) against the landlord and allowed part of the landlord’s appeal against the substantive decision and quashed that award of general damages against the landlord accordingly.

Has a substantial wrong or miscarriage of justice occurred?

The tenant failed to establish the grounds for a rehearing.
There are no new evidence nor materials adduced which might affect the outcome of the previous hearing and order of the Tribunal dated 23 July 2023.
The tenant is clearly unhappy with the decision but this by itself is insufficient for the grant of a rehearing.
The latest emails provided by the tenant do not affect my determination that the landlord exercised their duty to mitigate appropriately in the readvertising efforts and finding that the tenant remains liable for rent until the day before the date of commencement of a new tenancy of the premises pursuant to section 61(3)(b)(ii) Residential Tenancies Act 1986.
Based on the number of viewings and various groups of prospective tenants who have been shown the premises by the landlord’s letting agent, I remain satisfied that the administration charges set out in the landlord’s invoice based on time in attendance are reasonable. I also consider that they were sufficiently itemised in terms of meeting section 44A(2) RTA.
The tenant’s submission about the broad stroke approach that I took in my decision, having taken the emails about reduction to the pool of potential applicants out of context, adopting an irrational backward reasoning in concluding that an appropriate measure of the landlord’s loss is based on a week’s rent, and the Tribunal’s failure to mention in the reasons of the decision that the landlord has failed to itemise costs are really complaints about correctness of the decision which should be dealt with by way of appeal.
I have given sufficient reasons as to why I have awarded the landlord the quantum of rent arrears sought and cost to readvertise calculated at 1 week’s rent.
In exercising the Tribunal’s jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises (as set out under section 85(1) RTA) the Tribunal is not expected to go into each and every submission made in detail. If we did that, the Tribunal would not be able to get through the volume of cases that we do. I consider it sufficient that I have stated the relevant law and explained how I applied it to the facts that I have found them.
On the issue of my refusal to grant the tenant name suppression, I took into consideration the parties’ interest, alongside that of the public interest, and found that the principle of open reporting outweigh the tenant’s considerations.
There is ultimately nothing before me which affects the outcome of the substantive order for rent arrears and readvertising costs, and my decision to refuse the tenant’s request for name suppression.
Following Judge Tuohy’s ruling in McMillan, complaints about legal correctness of a decision should be dealt with by way of appeal rather than an application for rehearing and no distinction can be made between errors of law that are grave enough to constitute a substantial miscarriage of justice and those which are not.
Following Judge Harrop’s ruling in Scott, my focus under section 105(1) RTA is on the fairness of the hearing process rather than on complaints about the merits of my substantive decision. I consider the grounds raised by the tenant are really complaints about the merits of the decision rather than the process by which it was reached, in which case there are appeal rights to address those.
Ultimately, all the material points raised by the tenant in the initial hearing and the present application for rehearing have been duly canvassed, and determined, albeit they were against the tenant in the proceedings.
There remains nothing before the Tribunal that could have affected the outcome of the previous hearing.
For those reasons, the rehearing application must fail.

Tenancy Tribunal case 4539730 — Rent arrears at Unit/Flat Apartment 306, 168 Victoria Street, Te Aro,

At a glance

Tenancy Tribunal case 4539730 — Rent arrears at Unit/Flat Apartment 306, 168 Victoria Street, Te Aro,

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions