What was the outcome of Tenancy Tribunal case 4679030?

The tribunal order states: The landlord’s application for rehearing is dismissed.

How much money was awarded in case 4679030?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4679030?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4679030?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10222361-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4679030?

The tribunal order states: The landlord’s application for rehearing is dismissed.

How much money was awarded in case 4679030?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4679030?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4679030?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10222361-Tribunal_Order.pdf.

47 O'Halloran Road, Howick, Auckland 2014 Tenancy Tribunal Case 4679030 — Healthy homes

Order

The landlord’s application for rehearing is dismissed.

Reasons

Both parties attended the hearing on 17 April 2024.
On 15 March 2024 the Tribunal made an order granting the landlord possession of the premises on 5 June 2024 and awarding the tenant compensation.
On 19 March 2024, the landlord applied for a rehearing. There were 3 main grounds: (1) there was unfairness in the process relating to the tenant’s claim that the 6 June 2023 termination notice was retaliatory; (2) there is new evidence of increased building costs from the tenant’s failure to vacate in accordance with the 6 June 2023 termination notice; and (3) the Tribunal did not correctly consider what was a reasonable time for the tenant to vacate the premises, granting another 90 days was unduly long.
The relevant procedural history was set out at paragraphs 5-6 and 11-14 of the Tribunal’s 15 March 2024 order, and I will not repeat it here. To be added to that chronology is the Tribunal’s decision dated 6 June 2023 (in application 4523831) declaring the 7 December 2022 termination notice invalid and dismissing the landlord’s application for possession.
A further termination notice was served on 6 June 2023, terminating the tenancy from 6 September 2023. The Tribunal declared this further termination notice valid in its order of 15 March 2024 (application 4679030). This order was not available at the hearing on 7 March 2024 but does not change the Tribunal’s understanding of the procedural history. Relevant law
Section 105(1) of the Residential Tenancies Act 1986 (the Act) provides that the Tribunal has the power to order a rehearing of the whole or any part of a proceeding where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
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, and 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 – “something more than a mere wrong decision must be shown”, see Wellington City Council v McMillan (DC Wellington, 7 June 2002, MA 70/02 & TT 97/02, Judge Tuohy). This case was recently cited by the High Court without disapproval in Angelo v Hans- Werner Lehr [2022] NZHC 3033.
The District Court has also said that a rehearing will not be granted just because a party is unhappy with the decision, or because the applicant has a “desire to take issue with, or express a contrary view on the evidence to that reached by the Tribunal...” (Xpert Management Solutions Limited v Bravo [2015] NZDC 1506). Landlord’s submissions
The landlord made the following main submissions in support of a rehearing: • The tenant was out of time to claim that the termination notice was retaliatory, and the Tribunal ought not to have considered it. This led to a delay in the landlord being granted a termination order. The Tribunal ought to have made a possession order at the 12 December 2023 hearing. • There was unfairness in the process in that the tenant was not required to file formal counter-claims for his claims and did not file evidence in advance as directed. • At the 12 December 2023 hearing, the Tribunal gave the tenant further time to collect his evidence. It is unclear whether the tenant filed this evidence with the Tribunal, but the landlord did not receive it and was prejudiced as they did not have time to review the evidence and prepare accordingly. • The landlord has obtained new costings for the planned renovations. The cost has increased by about 10%. The landlord was unable to obtain this information prior to the hearing on 7 March 2024 because it did not know when the tenant would be ordered to vacate the premises and therefore, when the renovations could begin. This is relevant to the decision because the landlord would have sought to counterclaim against the tenant for the increased renovation costs between September 2023 and June 2024. The building costs have increased due to the tenant’s failure to vacate and delay in the Tribunal’s decision. • The landlord lost rent as a result of the tenant’s failure to vacate by 6 September 2023. The property could have been re-rented 6 weeks later at a market rent of $710.00 resulting in a rental income of $3,200.00 (based on 32 weeks to the possession date). By my calculation, the rental income from 6 September 2023 to 5 June 2024 at the current weekly rent of $610.00 will be $23,877.14. The rental income from 18 October 2023 to 5 June 2024 at an increased weekly rent of $710.00 would have been $23,531.43. • The Tribunal found that the termination notice was not retaliatory but there was no legal requirement for the tenant to be given 90 days to vacate from the hearing date on 7 March 2024. Given the landlord had been waiting for possession since at least 6 September 2023, another 90 days was unduly long. Analysis
The landlord is right that the tenant had to apply within 28 working days under section 54 of the Act for a declaration that the 6 June 2023 termination notice was retaliatory. The tenant applied on 6 March 2023 in response to the landlord’s earlier (ultimately unsuccessful) application for possession. The application form did not claim that the December 2022 termination notice was retaliatory. There is a suggestion in the tenant’s email of 21 February 2023 that he believed the termination notice was connected to healthy homes compliance. However, it only became clear on 12 December 2023 that the tenant claimed the notice was retaliatory, after the Tribunal clarified his claims.
There are competing District Court authorities about whether the Tribunal can extend time for an application under section 54 (see Hooker v Abode Acquisitions Ltd (DC Napier CIV-2011-041-83, 13 April 2011), and Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081). It is seriously arguable that the Tribunal ought to have taken the strict approach and ruled that any application was out of time and could not be heard. The failure to do so did not change the ultimate outcome, because the claim that the termination notice was retaliatory was dismissed. However, the landlord submits that it caused delay and should have been dismissed, and a possession order granted, in December 2022.
In my view this argument runs into several obstacles. The first is that the 12 December 2023 adjournment order was made by a different adjudicator. In practice, only the adjudicator who presided over the hearing can properly consider a rehearing application in respect of that part of the proceeding. The second reason follows from the first: the application for a rehearing of the 12 December 2023 order is out of time by some months.
The 12 December 2023 order records that the landlord requested an adjournment because the tenant had not given notice of his claims and because further documents had been handed up by him at the hearing. The adjudicator then, understandably, sought to clarify the tenant’s claims and adjourned the hearing. In retrospect, the Tribunal could have considered making a possession order there and then, but I do not consider it was a miscarriage of justice, in the circumstances, to adjourn to a substantive hearing.
The landlord expressed concern that they had not been provided with all the tenant’s evidence. So far as I can tell, the tenant filed no further evidence in support of his application until the hearing on 7 March 2024.
The landlord says the tenant was not required to file formal applications and did not file evidence in advance as directed. I agree that the content of a party’s application form is important because it gives notice of the nature of the claims. Sometimes the application will need to be clarified, but the Tribunal is not a Court, and does not proceed on the basis of detailed pleadings. In this case, the Tribunal took the time to clarify the tenant’s claims in his application form for the benefit of both parties. I am unable to view that as a miscarriage of justice.
Both parties saw fit to present further documents at the 7 March 2024 hearing, despite the Tribunal’s previous directions. From recollection, on the day the landlord filed a large bundle of further documents, including inspection reports. The landlord says they did not have an opportunity to speak to the owner about photographs handed up by the tenant. To the best of my recollection, there was no request for an adjournment for this purpose, and I doubt whether it would have been granted. The landlord, as property managers, had access to the property and conducted numerous inspections. They were in a good position to respond to the tenant’s arguments and evidence.
I understood the landlord’s case relating to the updated cost of the planned renovations to be, as discussed at the hearing, essentially that the increased renovation cost should be taken into account alongside the Tribunal’s award of compensation to the tenant, so that ultimately there is a net award. That would usually be how the Tribunal strives to resolve cross-claims.
The difficulty is that there was no application by the landlord for compensation for losses caused by the tenant’s alleged failure to vacate. The new evidence is not relevant to the issues which the Tribunal had to determine. There was no claim for compensation at the time, and the landlord is now saying that, with the benefit of hindsight, they would have cross-claimed. If the landlord believes there has been a breach of section 40(1)(e)(i) of the Act (tenant must quit the premises on termination of the tenancy) which has caused loss, it is still possible to apply to the Tribunal. Finally, the claim that the landlord could have obtained increased rental income for the remaining term of the tenancy, based on a higher rent from re-letting, is in my view speculative and not supported by the calculation of rental income mentioned above.
The landlord says the Tribunal acted unreasonably by giving the tenant 90 days to leave the premises following the hearing on 7 March 2024. The rationale for this was set out briefly at paragraph 19 of the 15 March 2024 order. Having permitted the landlord to obtain a possession order more than 90 days after termination of the tenancy, I considered it was fair to provide the tenant with time to vacate. The Tribunal exercises a discretion when it determines how long tenants have to leave. The tenant has a young family and needs time to find another home. The tenant says he will be moving out and the landlord has an enforceable possession order.
The Tribunal may have been too generous to the tenant but, if a rehearing were granted on this issue (i.e., whether possession should be granted from an earlier date) it may well delay possession even further. The current order might have been challenged on appeal as being unreasonable, but it provides certainty. The tenant will leave on 5 June 2024. The landlord will have possession and be able to commence renovation work.
For these reasons, the landlord has failed to establish grounds for a rehearing.

Tenancy Tribunal case 4679030 — Healthy homes at 47 O'Halloran Road, Howick, Auckland 2014

At a glance

Tenancy Tribunal case 4679030 — Healthy homes at 47 O'Halloran Road, Howick, Auckland 2014

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