What was the outcome of Tenancy Tribunal case 4575132?

The tribunal order states: No suppression orders apply to this order.

How much money was awarded in case 4575132?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4575132?

The dispute type was not classified.

Where can I read the official tribunal order for case 4575132?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9185219-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4575132?

The tribunal order states: No suppression orders apply to this order.

How much money was awarded in case 4575132?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4575132?

The dispute type was not classified.

Where can I read the official tribunal order for case 4575132?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9185219-Tribunal_Order.pdf.

90 East Street, Greytown, Greytown 5712 Tenancy Tribunal Case 4575132 — Tenancy dispute

Order

No suppression orders apply to this order.
The application for rehearing is dismissed.

Reasons

The Tribunal issued a decision on 23 June 2023 in response to a claim from the landlord against the tenants. By the time of the hearing the only claim from the tenants was to get their bond returned. The landlord seeks a rehearing which is the matter I must now determine.
The background can be summarised reasonably succinctly as follows: a. On 19 May 2023 the landlord filed an application with the Tribunal against the tenants. b. A mediation was scheduled, but that was cancelled at the request of the landlord, who preferred to proceed to have the dispute adjudicated in the Tribunal. c. On 6 June 2023 a hearing was scheduled to be heard in the Masterton District Courthouse on 23 June 2023. d. The landlord applied to attend the hearing by telephone, as she lives in Porirua. Having considered that request, it was declined because I considered the matters in dispute were too complex for a telephone hearing, as they would be heavily evidence dependent, meaning an in- person hearing was indicated. The landlord was advised the request to attend by telephone was declined. e. On 22 June 2023 the landlord filed a written statement setting out her position on the claims. The landlord begins the statement by saying: I received confirmation from the Masterton District Court Registrar on 21 June 2023 that my request to hold the hearing of the above applications by teleconference has been declined due to the complexity of the applications. Unfortunately, due to the impracticalities and costs associated with attending a hearing in Masterton in person, I will not be present at the hearing on Friday, 23 June 2023. While disappointed that my request to attend the hearing remotely has been declined, I would like to request that the Adjudicator proceed to consider the applications on 23 June 2023. I also request that the following written statement, together with the content of application 4575132 and evidence supplied in relation to both the tenant and landlord applications, be accepted and considered by the Adjudicator in leu of my physical attendance at the hearing. f. The hearing proceeded on 23 June 2023. Both tenants attended in person, as indicated the landlord did not attend. The hearing proceeded, and I issued a decision that same day, taking into account the landlords written submission. g. The landlord applied for a rehearing. h. A telephone hearing was convened on 17 July 2023 to hear from the parties on the rehearing application. Parties submissions in relation to rehearing request
The landlord states that they have not had fair access to justice, given their application for teleconference was declined, so they could not respond to what was discussed at the hearing.
The landlord said it would be “difficult” to come to the hearing because they work full time and have small children. The Landlord believed it was common practice to be able to attend by telephone. Ultimately it was only two days prior to the hearing that they were advised they could not attend by telephone.
The landlord also considered their evidence was not taken into account, or claims such as landlord behaviour and rodents in the premises fairly considered by hearing from the landlord on.
In response the tenants said that they had taken time off work to attend the original hearing (and this rehearing request). 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.
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 question the Tribunal must determine, is whether there has been a substantial wrong or miscarriage of justice, or even the potential for either situation arising. As I explained that the hearing on 17 July 2023, I cannot see that such a situation is present justifying a rehearing.
The crux of the landlord’s position, is that she was not afforded a fair opportunity to attend the hearing, because the telephone hearing was declined. I disagree. The hearing was scheduled well in advance, as an in person hearing, and certainly the landlord had an opportunity to attend the hearing in person, if she wished to do so. Had the landlord attended, she would have had a full-time opportunity to hear what the tenant said, and respond how she wished.
The landlord explain that it would have been difficult to attend the hearing, because they live in Porirua, they work, and have children. I am not persuaded those are sufficient reasons why it would have been unreasonable to expect attendance. As the tenants noted they also work, and both needed to take time off work to attend the hearing, there is nothing exceptional in that. The distance between Porirua in Masterton is not unrealistically long, there are good public transport systems in place, if transport was an issue.
As I noted at the hearing today, it is normally the case that the Tribunal will dismiss an application when the applicant does not appear at the hearing, as occurred in this case. In that regard, I note section 92 of the Residential Tenancies Act 1986 (RTA) which confirms: 92 Non-attendance at hearing after due notice (1) Where notice of a hearing has been given to a party in accordance with section 91 and that party does not attend at the hearing, the Tribunal may hear and determine, or dismiss or adjourn, the matter in the absence of that party.
In this case however, rather than dismiss the application, I determined that the most fair approach would be to proceed, on the basis of the written submission provided by the landlord. That is what occurred.
I am also minded, that the landlord confirmed in her written submission, that she wished that to be used in place of her attendance at the hearing, and it was.
It was submitted today that the Tribunal considered claims that were not originally advanced in the application. That is not the case. The only claim that the tenants advanced for themselves at the hearing, related to a bond release, which was always going to happen one way or the other. The only other claims considered were from the landlord. Certainly the Tribunal noted other concerns held by the tenants, but no findings were made on those concerns, and in fact I expressly noted that “those are not matters the tenants are pursuing in this application, so I will not comment on them further”, but they made up the fabric of what was discussed at the hearing, so it was documented.
The landlord also submitted that she had been advised it was routine to have telephone hearings in the Tribunal. That is not entirely correct, certainly the Tribunal does conduct a number of hearings by telephone, when the subject of the hearing will be straightforward, but the decision on whether a hearing will be contacted by telephone, or in person, is a decision for the Tribunal, and particularly the adjudicator to make. That is confirmed in section 96 of the RTA: (3A) The hearing of any other matter or any part of it may be conducted by telephone, audiovisual link, or other remote access facility if the Tenancy Adjudicator conducting the hearing considers it appropriate and the necessary facilities are available.
Ultimately the landlord has had a fair opportunity to engage in the hearing process, I am not persuaded that there is any potential for a substantial wrong or miscarriage of justice, so the application for rehearing is dismissed.

Tenancy Tribunal case 4575132 — Tenancy dispute at 90 East Street, Greytown, Greytown 5712

At a glance

Claims & awards

Tenancy Tribunal case 4575132 — Tenancy dispute at 90 East Street, Greytown, Greytown 5712

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions