What was the outcome of Tenancy Tribunal case 4618730?

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

How much money was awarded in case 4618730?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4618730?

The dispute type was not classified.

Where can I read the official tribunal order for case 4618730?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10417223-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4618730?

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

How much money was awarded in case 4618730?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4618730?

The dispute type was not classified.

Where can I read the official tribunal order for case 4618730?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10417223-Tribunal_Order.pdf.

Multiple Tenancies Tenancy Tribunal Case 4618730 — Tenancy dispute

Order

The application for rehearing is dismissed.

Reasons

The Tribunal must consider an application for rehearing filed by the landlord. A telephone hearing was convened on 5 June 2024 to consider that application.

BACKGROUND

The background in this case is now extensive, however, for the purpose of this rehearing order I summarise it as follows: a. This matter relates to three separate tenancies located at 92A, 92B and 92C Ranolf Street, Rotorua. b. Complaints in relation to the tenancy were made to Tenancy Services (the Ministry of Business, Innovation and Employment), who have an investigative arm concerning tenancy matters. Following an investigation the Chief Executive filed an application with the Tribunal seeking various orders around maintenance at the premises. c. Those applications proceeded to a hearing in the Tribunal before Adjudicator Smith. Mr Smith issued his decision on 21 September 2021. 1 In summary, Mr Smith made various orders, including work orders. d. The landlord commenced a range of proceedings in the Tribunal, District Court and High Court relating to a rehearing and appeal of Mr Smith’s original order. Ultimately none of the challenges were successful. e. The landlords did not comply with Mr Smith’s work order. A work order needs to be enforced within 12 months of it being made, but the Residential Tenancies Act 1986 (RTA) allows the Tribunal a discretion to allow enforcement after that 12 month period. The Chief Executive applied for an order approving a late enforcement of the work order, and also a variation to remove some of the work ordered, and also to give the landlord a final three months in order to do the necessary work. f. I convened a hearing in Rotorua on 10 April 2024 to hear from the parties and gave an oral decision at the end of that, followed up with a written order. g. The landlord has applied for a rehearing of the 10 April 2024 hearing and decision, and that is the subject of this current order. LANDLORD’S POSITION
Mr and Ms Bhana attended the telephone hearing today, and referred to written submissions they filed half an hour prior to the telephone hearing (which I had not had a chance to read in advance but have since read). I summarise the submissions arguing for a rehearing as follows: a. Because there have been no similar cases and given the complexity of the case, my original order would result in a precedent. Three 1 The Chief Executive Ministry of Business, Innovation and employment on behalf of tenants v Stephen Chiman Bhana and Jasu Mati Bhana trustees of the Ranolf Trust [2022] NZTT [Rotorua] 4273958, 4373982, 4273973, 4310871, 4310889, 4310874 adjudicators should have been appointed to hear this matter given its importance. b. There is no evidence from the Council of defects to the premises, and it is the Council that has jurisdiction with building matters, not the Tribunal. c. There are still pending hearings before the courts with requests for stays. d. Because of section 87 of the RTA, the Chief Executive needed to forward the application to mediation unless there were directions from the PTA otherwise. In this case the landlord states that they had requested mediation. e. A rehearing can be ordered to allow the matter to be reconsidered because the landlord considers there has been a miscarriage of justice because there are new variation orders that were filed quite late in the piece. f. The Tribunal had not addressed the landlord’s cross applications, as there have been hindrances from tenants with undertaking work. g. The Tribunal had prejudged the application given an oral decision was issued. h. Given the complexity of the case it should have been transferred to the District Court. i. MBIE have not followed the process with enforcing the original order. j. There a conflict of interest because the adjudicator is an employee of MBIE (as I understand that submission to be). k. There were some oral submissions not considered. l. The Tribunal did not have jurisdiction to vary the original order from Mr Smith.

CHIEF EXECUTIVES POSITION

Ms Denmead submits that there is a high standard to be met in order to obtain a rehearing. Matters of fact and law should be advanced at appeal, and in this case the landlord has applied for an appeal and an appeal is pending.
Otherwise, it was submitted that there is no stay ordered by a court, and nor are there any orders from the courts that would be relevant.
If there is new evidence that could have been obtained and provided for the original hearing, then that should have been provided at the original hearing.
The landlord’s approach has been to attack the original order from Mr Smith, and that is not now possible given the landlord has exhausted its appeal options.
It was submitted that it is not mandatory to go to mediation, it will be appropriate to mediate in some cases not others. The process applied in this case complies with the RTA.
There is no requirement in the RTA for the PTA to give approval for hearings of applications from the Chief Executive.
It is disputed that there was any need to have the cross-application considered at the time of the hearing to consider the extension of the work order enforcement.

RELEVANT LAW

Section 105 of the Residential Tenancies Act 1986 relates to rehearings. 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.”
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. In Jemma Trust v Rutherford (DC North Shore, CIV-2009-044-2056, 11 December 1999), the District Court quoted an extract from the Court of Appeal outlining the relevant considerations: The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite party is on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial....While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling.
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

I have set out the relevant law that applies to rehearings above. In short, re- hearings are a safety measure should something have gone wrong with the hearing, normally on a procedural basis, a rehearing can be approved. I have considered the submissions from the landlord, and find that no procedural issues have been identified, and I cannot see any potential for a substantial wrong or miscarriage of justice to justify a rehearing.
At the hearing today, the landlord focused on what could be summarised as submissions to the extent that Mr Smith’s original work order was wrong, as was my order approving the late enforcement and variation. However, even if the landlords were correct in their views around the correctness of those orders, I could not order a rehearing on that basis, only an appellant court could do that. Therefore I will not address any of the arguments as to the correctness of those orders.
I will however address the arguments set out above for why a rehearing should be granted which relate to procedure. a. ‘Because there have been no similar cases and given the complexity of the case, my original order would result in a precedent. Three adjudicators should have been appointed to hear this matter given its importance.’ i. I do not accept that the matter I considered on 10 April 2024 was complex. The issue was legally straightforward. The fact that a matter comes before the Tribunal (or court) for the first time, does not of itself make the matter complex, or require a panel of adjudicators or judges to determine it. Invariably when Parliament enacts any law, the provisions are likely to be the subject of a proceeding sooner or later, and if a party thinks the initial decision maker got the decision wrong, then the decision can be appealed in the usual way. b. ‘There is no evidence from the Council of defects to the premises, and it is the Council that has jurisdiction with building matters, not the Tribunal.’ i. That submission is an attack of Mr Smiths original decision. That would be a matter for appeal of that decision. I have not made any new finding in relation to building obligations. In any event this was addressed at paragraph 32 of my 10 April 2024 order. c. ‘There are still pending hearings before the courts with requests for stays.’ i. Whether that is the case or not is irrelevant. At the time of the hearing in April, as it is today, Mr Smith’s order has not been overturned by an appellate court nor has any stay been ordered. The fact that the landlord wishes to pursue further appeals would not change the fact that the Tribunal was able to make the order on 10 April 2024 as it did. d. ‘Because of section 87 of the RTA, the Chief Executive needed to forward the application to mediation unless there were directions from the PTA otherwise. In this case, the landlord states that they had requested mediation.’ i. The landlord submitted that there has been a procedural flaw in this case because the matter had not gone to mediation. The landlord submits that section 87 requires a referral to the mediation service. That provision holds: 87 Duties of chief executive on receipt of application (1) When an application is filed in accordance with section 86, the chief executive may refer it to a Tenancy Mediator unless, in terms of any regulations made under this Act or of any directions given by the Principal Tenancy Adjudicator, the application is of a class that is to be referred directly to the Tribunal, in which case the chief executive must refer the application to the appropriate Registrar. ii. In my assessment, this provision does not require that all matters go to mediation. The provision provides discretion for the referral to mediation, where it says that “the chief executive may refer it to a Tenancy Mediator” (my emphasis). The word ‘may’ indicates just what it means, there is an option on whether to refer the matter to the mediation service. I note that there is an ability for the PTA to make directions otherwise, such that a particular class of applications must be referred to the Tribunal for a hearing. I am not aware of the PTA having made any directions for any class of case needing to be referred for a hearing. What remains is that the Chief Executive could have referred the matter to mediation, it was not required to. iii. Ultimately mediations are consensual processes, and in this case, the Chief Executives representatives did not agree to mediate the dispute. e. ‘A rehearing can be ordered to allow the matter to be reconsidered because the landlord considers there has been a miscarriage of justice because there are new variation orders were made quite late in the piece.’ i. The RTA has an expectation that work orders be enforced within 12 months. But it also provides a discretion for the Tribunal to approve enforcement of the orders after that time (s108(7)), so it is clear that just because the application for late enforcement was made after that 12 month period, that is not a bar to the Tribunal considering the application. ii. Other than varying the date, which is a natural result from exercising my discretion for late enforcement of the order, the only other variation was to remove from the work order any work that has been confirmed as completed. That was entirely in favour of the landlord, it would be pointless making a work order for work that was no longer needed. f. ‘The Tribunal had not addressed the landlord’s cross applications, as there has been further hindrance from tenants.’ i. This was a focus for the landlord at the hearing today. ii. I addressed this as an adjournment request in my order of 10 April 2024. The Tribunal noted that the landlord had raised at a case conference in December 2023 that they wanted to file a cross application, but ultimately this was only filed on the night before the 10 April 2024 hearing. I determined that this application would not act as a defence to the matter before me, which was whether to allow the late enforcement of the work order already made, particularly in circumstances where there were health and safety concerns for the tenants in these dwellings. iii. In the event there is any hindrance with the landlord being able to enter the premises and do work, then there remain avenues the landlord can take under the RTA, but that would not diminish the landlord’s obligation to undertaken the work Mr Smith ordered. g. ‘The Tribunal had prejudged the application given an oral decision was issued.’ i. Given the nature of the Tribunal’s work, and the statutory requirement that Tribunal procedures are expeditious, it is common for the Tenancy Tribunal to give oral decisions at the end of a hearing, as I did in this case. As I’ve indicated above, the matter before me was reasonably straightforward. I had reviewed the file in advance, evaluated the law, taking into account the parties’ submissions, and was in a position to give an oral decision at the end of the hearing – that is not prejudging. ii. I also record that one of the factors that led me to determine that an oral decision should be issued was concern over the delays in addressing the health and safety issues arising at the premises. I wanted to ensure that the landlord was crystal clear as to their obligations and give them an opportunity to ask any question should the order and what was required of them be uncertain. h. ‘Given the complexity of the case it should have been transferred to the District Court.’ i. Section 83 of the RTA provides the Tribunal with the ability to transfer proceedings to the District Court if the Tribunal determines that the proceedings would be more properly determined in the District Court. There would be no basis for me to transfer the proceeding to the District Court, it was a simple proceeding that the Tribunal had jurisdiction to determine. i. ‘MBIE have not followed the process with enforcing the original order’. i. As indicated above, there is a statutory expectation that work orders are enforced within 12 months, but as I addressed in the original order from April this year, there were reasons for the delay in enforcement, and that was the multiple proceedings commenced by the landlord. On balance it would have been unsurprising that the Chief Executive did not enforce the order earlier, pending those proceedings through the Tribunal and the court system. However when those proceedings came to an end, the Chief Executive set about enforcing the work order, which required the order made on 10 April to enforce that order out of time. But again, it must be remembered that there is provision in the RTA for work orders to be enforced outside the 12 month period with leave of the Tribunal. j. ‘There a conflict of interest because the adjudicator is an employee of MBIE (as I understand that submission to be).’ i. I am entirely satisfied that there is no conflict of interest. I can confirm that I am not an employee of MBIE, nor the MOJ for that matter. Tribunal adjudicators are independent judicial officers acting by way of warrant from the Governor-General. k. ‘There were some oral submissions not considered.’ i. At the hearing today, the landlord did not identify any submissions that were made in the course of the 10 April 2024 hearing, that were important and not considered. ii. A Tribunal is not obligated to refer to every piece of evidence adduced or every argument advanced in the proceeding. As confirmed by the District Court in Repia v Walsh Trust (DC Waitakere CIV 2011-090-56): In writing a decision which will necessarily involve an explanation of the outcome, an adjudicator or Judge seeks usefully and fairly to select from the whole of what has been presented that which, in his or her judgment, will serve to explain the reasons for the conclusions reached. That, indeed, is part of the very process of adjudication. iii. See also the High Court decisions of Auckland Medical Officer of Health v Birthcare Ltd [2015] NZHC 2689 and Manukau City Council v Trustees of Mangere Lawn Cemetery (1991) 15 NZTPA 58 (HC). iv. I note also that given I had given an oral decision if there were important points the landlord considered had been missed, they could have sought clarification at that time. l. ‘The Tribunal did not have jurisdiction to vary the original order from Mr Smith.’ i. I have addressed this above. The Tribunal certainly has jurisdiction to extend the enforcement date, the RTA allows the Tribunal leave to approve late enforcement. Beyond that any other variation was solely to the benefit of the landlord, I am satisfied the Tribunal had jurisdiction to withdraw specific work orders by consent of the Chief Executive.
The landlords have not established that any substantial wrong or miscarriage of justice arises, or even the potential for such a situation. Therefore the application for rehearing is dismissed.

Tenancy Tribunal case 4618730 — Tenancy dispute at Multiple Tenancies

At a glance

Claims & awards

Tenancy Tribunal case 4618730 — Tenancy dispute at Multiple Tenancies

At a glance

Claims & awards

Order

Reasons

BACKGROUND

CHIEF EXECUTIVES POSITION

RELEVANT LAW

ANALYSIS

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

BACKGROUND

CHIEF EXECUTIVES POSITION

RELEVANT LAW

ANALYSIS

Topics & place

Residential Tenancies Act sections

Frequently asked questions