Published tribunal order
Tenancy Tribunal case 4587752 — Property damage at 8A Moera Place, Stanmore Bay, Whangaparaoa 0932
Decided 4 Apr 2024 · Published 4 Apr 2024 · Application 4587752
Tenant favoured
- Property damage
Order
- The application for rehearing is dismissed.
Reasons
- Both parties attended the hearing.
- On 16 January 2024 the Tribunal made an Order for: DescriptionLandlordTenant Compensation: (Over payment of rent from 1/11/22 to 12/06/2023 of $10 per week for 30 weeks) $300.00 Compensation: (Over payment of rent from 13/06/23 to 15/06/2023 $218.57 Repairs: (Kitchen cabinetry)$182.50 Compensation: (breach of quiet enjoyment and stress/inconvenience) $400.00 Total award$182.50$918.57 Net award 736.07 Bond $2,000.00 Total payable by Landlord to Tenant $736.07
- On 21 January 2024, the Landlord applied for a rehearing on the grounds that: a. The landlord had new evidence available that was not presented at the last hearing and that proves its case that the owners did not agree to release the tenant from the fixed term tenancy early and that the financial hardship they would suffer from having the term of the tenancy reduced is greater than the financial hardship the tenant would suffer if she was held to the fixed term of the tenancy; and b. The Adjudicator improperly heard a claim for exemplary damages for breach of quiet enjoyment, stress and inconvenience that was not expressly listed on the tenant’s application form.
- The Landlord also applied for a stay until the hearing on whether to grant a rehearing has been concluded. This application was granted and as such the 16 January 2024 Order has not been able to be enforced.
- 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.
Has a substantial wrong or miscarriage of justice occurred?
- For the following reasons the Landlord has failed to establish the grounds for a rehearing: a. The evidence the Landlord wanted to submit at a rehearing was evidence that the owners had not provided to it when it was preparing for the original hearing but was evidence that could have been obtained with reasonable diligence for the original hearing. b. The Tribunal does not grant rehearing’s to give a party a second change top present their case or as an opportunity to present better evidence. c. My notes from the original hearing show that the tenant had provided evidence in July 2023, to support her claim for breach of quiet enjoyment in relation to property inspections and that she sought compensation for that claim. The landlord had been provided with this evidence by Tenancy Services. At today’s hearing, the landlord stated that the tenant had provided so much irrelevant evidence that it did not see or prepare to defend this claim. d. At the commencement of the original hearing, I checked with both parties what their claims were, and the tenant confirmed she was seeking compensation for breach of her quiet enjoyment of the property when she was left waiting for property inspections that were to occur sometime between 8 o’clock in the morning and 7 o’clock in the evening and her request to be present at the inspections was not reasonably considered or accommodated. e. My notes show that the property manager gave extensive oral evidence in defence of this claim and did not indicate that she had not had time to prepare to defend this claim nor that she had further evidence she wanted to submit to the Tribunal in relation to this claim. Had she made that request I would have accommodated it and allowed the property manager to provide additional evidence by email in defence of this claim a few days after the hearing and allowed the tenant a further few days to respond to that evidence prior to making my Order. The property manager claimed that she was not aware that the Tribunal may allow a party to do this so had not made that request. f. I find that the property manager was given the opportunity to respond to the tenant’s claim for compensation for breach of her quiet enjoyment of the property, did respond and did not object to me hearing that claim during the original hearing.
- The application for a rehearing is dismissed and the 16 January 2024 Tribunal Order stands and is enforceable.