What was the outcome of Tenancy Tribunal case 4684584?

The tribunal order states: The application for rehearing filed by the tenant is declined.

How much money was awarded in case 4684584?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4684584?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 4684584?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10228579-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4684584?

The tribunal order states: The application for rehearing filed by the tenant is declined.

How much money was awarded in case 4684584?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4684584?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 4684584?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10228579-Tribunal_Order.pdf.

Unit/Flat 5, 1555 Great North Road, Waterview, Auckland Tenancy Tribunal Case 4684584 — Unit Titles

Order

The application for rehearing filed by the tenant is declined.

Reasons

The Tribunal must consider an application for rehearing filed by the tenant.
The Tribunal received an application for termination of the tenancy filed by the landlord. The application was made under section 55A of the Residential Tenancies Act 1986 (RTA). Section 55A requires that the Tribunal terminate the tenancy if the landlord has given the tenant three notices about antisocial behaviour, and there are various other requirements around the notices, and when a termination request must be made with the Tribunal.
One of the requirements with the notice is that it must advise the tenant of a right to challenge the notice in the Tribunal if the tenant disagrees with it. In this case, there has been no application filed by the tenant challenging any notice.
A hearing was convened on 11 October 2023 in Auckland at 9:30am to consider the landlord’s termination request. Only the landlord attended the hearing. I reviewed the information available and was satisfied that the notices and process applied by the landlord was consistent with the RTA requirements, and therefore ordered termination of the tenancy. I noted also that the tenant has not filed her own application seeking to challenge the notices.
It is the case that later that morning the tenant’s Father arrived at the hearing room, but the tenant did not appear. The tenant’s father advised he understood the hearing to be later than 9:30 am, which is why he was late.
I note at this juncture that the Tribunal has not approved representation for the tenant, and therefore it was the tenant who needed to appear.
In any event, the tenant has filed an application for rehearing. The tenant applied for a stay of the eviction, however that was declined. In my order declining the stay, the following reasons were given: a. The application for rehearing has been filed by the tenants father, but the Tribunal has received no confirmation from the tenant that her father is her representative, and has authority to act on her behalf. b. The tenancy was terminated on the grounds of three episodes of anti- social behaviour, following notices being issued to the tenant (the tenant has not claimed that she did not receive the notices). The Residential Tenancies Act 1986 (RTA) provides an ability for the tenant to file her own application if she wanted to dispute any of the notices, she has not done so. Therefore the events are deemed by law to have occurred. c. The tenant states that she was not notified of the hearing by her youth workers. The Tribunals records confirm that the tenant was noticed of the hearing details by Tenancy Services by post, email and text message. It must be unlikely that notice via three methods would be unsuccessful.
The tenant has since left the tenancy.
On 19 April 2024 (today) I convened a telephone hearing to hear from the parties on whether a rehearing should be granted. Relevant legal considerations
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. Positions of the parties
On 19 April 2024 I convened a telephone hearing to hear from the parties about the tenant’s request for a rehearing. The hearing was difficult because the tenant would speak over the landlord, however, this is my understanding of the position of the parties from the hearing today.
The tenant confirmed that the tenancy has ended, but she wishes to have the matter reheard. The tenant states she was told the wrong address in relation to the hearing, and none of her support workers got in contact with her about the hearing, her car had been damaged, and she was in the middle of a hectic stage of her life. The tenant said she knew about the hearing, and stated that she has evidence that she could use to defend the claim. The tenant disputes that she has acted in an antisocial way.
The landlord’s view is that the tenant was advised about the hearing, and maintains that there was antisocial behaviour on the part of the tenant. Analysis
The question I must determine is whether there has been a substantial wrong or miscarriage of justice, or even the potential for either situation, which would require that the hearing be reconvened afresh.
The usual situation of courts and tribunals in New Zealand, indeed the Western world, is that when a hearing is scheduled, the hearing will proceed on the date that the parties are notified was to take place, whether they are present or not.
In fact, section 92 of the RTA confirms that the Tribunal may proceed to determine any application when a party does not appear, providing they have been served notice of the hearing.
In this case, the Tribunal is satisfied that it is most likely the case that the tenant was advised of the hearing correctly. The hearing notice was posted to the Tenancy address, and sent to the tenant by email, and also text message. The tenant confirmed she was aware of the hearing, and overall I am not persuaded that she would not have been notified of the hearing by post at least.
The fact that the tenant disagrees she committed any antisocial behaviour is not determinative. As noted in the District Court decisions above, the Tribunal cannot grant a rehearing on the basis that one party considers the substance of the decision was wrong. Even then, if the tenant wanted to dispute the notices she received, she needed to file her own application with the Tribunal challenging them.
The tenant states that her support workers did not advise her of the hearing, that is not of relevance. I am satisfied that it is likely that the Tribunal has notified the tenant of the hearing.
The tenant stated she was given the wrong address, but that seems inconsistent with the fact that her father appeared at the Auckland District Courthouse, albeit late.
Overall, I am not persuaded that there are sufficient grounds to identify any procedural flaw around the tenant having been notified of the hearing, so as to conclude there was the potential for a substantial wrong or miscarriage of justice in this case.
I note for completeness, that if I were to have granted the rear hearing, it would largely have been moot. The landlord’s application was to end the tenancy, and whether the tenancy was entered by order of the Tribunal or any other reason, the tenancy has now ended. The Tribunal could not return Ms Noblewood as a tenant into her tenancy, so any further hearing would now be moot. The High Court has confirmed that the Tribunal cannot hear moot applications. 1

Tenancy Tribunal case 4684584 — Unit Titles at Unit/Flat 5, 1555 Great North Road, Waterview, Auckland

At a glance

Tenancy Tribunal case 4684584 — Unit Titles at Unit/Flat 5, 1555 Great North Road, Waterview, Auckland

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