What was the outcome of Tenancy Tribunal case 4565390?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4565390?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4565390?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4565390?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9445349-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4565390?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4565390?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4565390?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4565390?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9445349-Tenancy_Tribunal_Order.pdf.

6A Deborah Place, Mangere, Auckland 2022 Tenancy Tribunal Case 4565390 — Exemplary damages

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The application is dismissed.

Reasons

The Tenant, Ms Konelio attended the hearing with her representative, Carolyn Judson (“Miss Judson”)and a Niuean interpreter. The Landlord did not attend.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
The Tenant claimed for refund of bond, compensation for the debt she had paid to the Landlord, refund of the debt, compensation for the suffering caused and reimbursement of the filing fee.
The Tenant submitted she filed an application to have these claims determined in 2017 but a hearing was never allocated and the matter remains undetermined. Background
The tenancy commenced on 6 September 2012 and ended on 16 November 2016. The Tenant was of Niuean descent and English was her second language. Tenants case
The Tenant submitted that around October 2015, the Landlord verbally told her that her rent was going to increase from $350.00 to $420.00. She did not receive a notice in writing that the rent was increasing. The Tenant approached the Citizens Advice Bureau and was assisted by Miss Judson, a volunteer, who prepared her application to the Tribunal.
On or about 6 March 2016, the Tenant filed her application to the Tribunal for the refund of the bond. A copy of the application was provided. In the application, the Tenant stated that it was unfair that the rent was increased, no notice was given and they were being harassed for payment. It is noted that there was no claim for compensation, exemplary damages or work orders. This application was assigned reference number 4071825. Miss Judson stated that she asked for a hearing and not mediation in the application. It is also noted that Miss Judson ticked ‘no’ in the application to an interpreter for the Tenant.
The Tenant submitted approximately two weeks after lodging her application, the Landlord filed an application that was assigned reference number 4057425. The Tenant was not aware of this application.
On 23 March 2017, mediation was set down for the Landlord’s application. The Tenant attended mediation, thinking it was a hearing of her application 4071825. Miss Judson did not attend mediation because she understood it was a hearing and she believed the Tenant did not require her assistance. The Tenant attended with her cousin who spoke English more fluently.
In her affidavit statement, the Tenant stated: “Nobody told me that the Landlord brought a case against me. This put me immediately at a disadvantage as my English is not good enough and I got confused with what was being said”. It is noted, in Miss Judson’s subsequent evidence to the District Court, that she stated, ‘the Tenant is barely aware of her Tenancy rights let alone argue her own case’. When asked by the Tribunal why Miss Judson did not attend with the Tenant on 23 March 2017, Miss Judson submitted that she thought the Tenant would be okay by herself in a hearing.
In the Tenants supporting statement, the Tenant stated at the mediation, ‘I was very nervous because my advocate was not with me. She said I would be OKAY to speak for myself at my hearing in front of an adjudicator....I was too embarrassed to say I needed to go to the toilet and thought I couldn’t leave. In the end I just signed what was put in front of me so I could get out of there. The whole experience was stressful and I could not cope with the mediator or the landlord’.
At the mediation, the Tenant agreed to withdraw her application 4071825 and this was made an Order in the Mediation Orders of 23 March 2017.
On or about 5 April 2017, the Tenant realised that she mistakenly agreed to withdraw her application and applied for a rehearing out of time. A copy of this rehearing application was not provided.
A statement in support from Ms Judson dated 3 April 2017 outlined the reasons why it was a miscarriage of justice if the matter was not reheard and requesting the matter be reopened.
The Tenant submitted she subsequently received a letter from the Court advising the ‘matter was sealed and she couldn’t make an application for the same issue’. The Tenant started to receive letters from the Collections unit requesting payment of the debt.
After continuing to receive debt collection notices, the Tenant filed another application for a rehearing in 2022. On 13 October 2022, the rehearing consideration was set down for a teleconference. The Tenant submitted they turned up to the court room instead and missed the phone calls from the Tribunal. The matter was dismissed because of the Tenants failure to answer the telephone calls made by the Tribunal.
On 28 October 2022, the Tenant submitted she filed a further request for a rehearing however this was declined. It is uncertain what the grounds were for declining however it may have been because the application was outside of the five working day timeframe required to file a further request.
On 20 March 2023, the Tenant submitted she appealed to the District Court and in support filed a statement from Ms Judson which advised the injustice of this situation was that the Tenant’s application was never heard. The Tenant submitted they did not receive any response from the District Court however it may have been because the appeal was out of time.
On or about 4 May 2023, the Tenant filed a new application seeking again, a refund of the bond but in addition work orders, compensation and reimbursement of the filing fee.
In support of the Tenants claim, the following evidence was included- a list of breaches by the landlord, reference letters from Compass Housing and Ms Viliamu’s cousin, a statement from Ms Judson in support, an affidavit statement from the Tenant, bank receipts, a property inspection report and a rent summary. The law
Section 77 (1) of the Residential Tenancies Act 1986 (“RTA”) states: The Tribunal has, subject to the Limitation Act 2010 jurisdiction to determine in accordance with this Act any dispute that- (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and relates to any tenancy to which this Act applies or to which this Act did apply at any material time.
Section 11(1) of the Limitation Act 2010 states: “It is a defence to a money claim if the defendant proves that the date on which the claim is filed is at least 6 years after the date of the act or omission on which the claim is based (the claim’s primary period)”.
This means that a Tenant cannot claim reimbursement of costs paid more than six years before the claim is filed.
In considering the evidence, I find that this application is effectively another attempt by the Tenant to have the original application reheard (4071825) following the dismissal by the Tribunal to grant a rehearing. This is not an avenue available for the Tenant particularly when the Tenant has failed to adhere to the filing timeframes and failed to attend a hearing.
The Tenant has submitted it is a miscarriage of justice because the Tenant did not have sufficient grasp of the English language to participate effectively in the mediation which led to the Orders being made in 2017 in favour of the Landlord.
I am not satisfied this is the case. I find the Tenant had the capacity to understand what was happening at mediation when she agreed to withdraw her application. Miss Judson was her advocate who prepared her application to the Tribunal in 2017. She would have been familiar enough with the Tenant to assess her level of English before the hearing date. From those interactions, Miss Judson had confidence in the Tenants ability to attend alone, which was confirmed from Miss Judson’s evidence at the hearing. The fact that Miss Judson was prepared to send the Tenant to a hearing, which is much more formal than mediation and is held in a court room, is persuasive of this. Miss Judson also ticked ‘no’ in the Tenant’s application to the option of having an interpreter. The written statement provided by the Tenant stating she felt nervous at mediation and signed the agreement so she could leave indicated she had a good command of English. There was nothing to indicate in this document that it was translated from Niuean to English by a translator.
Miss Judson submitted the Tenant did not know her rights when she went to mediation. Parties are generally self-represented in Tribunal proceedings or in mediation, so the Tenant was in the same position as every other party that attends mediation. The Tenant was also present with her cousin who explained some of the documents to the Tenant.
With respect to this current application, the Tenant has made additional claims for compensation. These were not claimed in the original application 4071825 and the Tribunal does not have jurisdiction to hear claims where the acts or omission occurred more than six years ago (Limitations Act 2010). The claims were based on breaches that occurred mainly during the tenancy.
For the above reasons, I dismiss the application of the Tenant and the Tenant shall pay their own filing fee.

Tenancy Tribunal case 4565390 — Exemplary damages at 6A Deborah Place, Mangere, Auckland 2022

At a glance

Tenancy Tribunal case 4565390 — Exemplary damages at 6A Deborah Place, Mangere, Auckland 2022

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