What was the outcome of Tenancy Tribunal case 4717450?

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

How much money was awarded in case 4717450?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4717450?

The dispute type was not classified.

Where can I read the official tribunal order for case 4717450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10304889-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4717450?

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

How much money was awarded in case 4717450?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4717450?

The dispute type was not classified.

Where can I read the official tribunal order for case 4717450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10304889-Tribunal_Order.pdf.

35 Holland Road, Hillcrest, Auckland 0627 Tenancy Tribunal Case 4717450 — Tenancy dispute

Order

The landlord’s application for rehearing is dismissed.
The stay previously ordered is lifted.

Reasons

The Tribunal has received an application for a rehearing filed by the landlord and therefore must decide whether a rehearing will be granted.
On 18 March 2024 the Tribunal issued a decision in relation to a claim from the tenant against the landlord. Most of the tenant’s claims were not successful, but the two claims were successful in relation to an order for power and quiet enjoyment. The landlord was ordered to pay the tenant $700.00.
On 20 March 2024 the landlord applied for a rehearing.
That same day I directed that a telephone hearing be convened to consider the rehearing request. In my written direction I summarised the relevant legal principles that apply for rehearings, but I will set those out again below.
On 7 May 2024 I convened a telephone hearing so I could hear from the parties before deciding whether a rehearing would be granted or not.

LANDLORDS POSITION

Mr Cordes represented the landlord, and submitted that the landlord did not have adequate time to prepare for the hearing. The landlord states an original contact in October 2023 being a text message was received from Tenancy Services, but that did not include the documents from the tenant. The documentation was only sent on 30 January, for a hearing on 18 March, giving the landlord only 6 weeks to prepare its case. The landlord states that it then acted diligently to collate its evidence.
The landlord notes that an adjournment was requested prior to the hearing which was declined. The landlord states that he needed to obtain witness statements from multiple external parties, and it took longer than 6 weeks, but it could have been done within 20 weeks.
The landlord states in conclusion that the witness statements he received are from other tenants, not related to these premises.
Further, Mr Cordes advised that if the Tribunal approached the original hearing as a mediation, then the Landlord would be willing to make the payment within 2 working days.

TENANTS POSITION

The tenant states that she understands 4-6 weeks notice is normal notice period for notice of a hearing. The tenant considers that the landlord has been declined name suppression, and is only pursuing the rehearing to obtain name suppression, which the landlord could have negotiated with a pre-hearing settlement. But the Tenant is not open to mediating the case now.

ANALYSIS

Decisions issued by the Tribunal are binding on both parties, however the Residential Tenancies Act 1986 (RTA) allows either party to apply for a rehearing. In particular section 105 of the RTA 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.
In order to establish grounds for a rehearing, 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.
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.
In this case, the landlord’s position is that it did not have sufficient time to prepare for the hearing. There was some 6 weeks between the claim file being sent to the landlord, and the hearing day. Taking into account the claims, I do not accept that the tenant had inadequate time to prepare for the hearing.
I note that the Landlord applied for an adjournment prior to the hearing on two occasions. Those applications were declined on 14 March 2024 and then again on 15 March 2024. The Landlord should have known then that it would need to be ready to go for the hearing on 18 March 2024.
The Residential Tenancies Act 1986 (RTA) requires that the Tenancy Tribunal expeditiously decide applications before it (see title to the Act). I note section 85 requires that: Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.
In line with that Statutory expectation around expedient dispute resolution, the Tribunal has a strong focus on timely scheduling of hearings. I note for example, in March 2024 half of all applications filed with the Tribunal were concluded in 40 days from the date the application was filed – a little under 6 weeks. Importantly, that time is calculated from the application being filed, the respondents in those cases would have received the claim file less than that 40 day period as occurred in this case. So if the landlord in this case had 6 weeks to prepare for the hearing, that was longer than most Respondents who appear in the Tribunal.
I have reviewed the procedure that occurred in this case, and it appears entirely routine as far as scheduling the case, and sending the claim file.
I am also minded that the landlord has not presented any further evidence that could not have been obtained over that 6 week period, in fact, it has filed no further evidence.
Finally the landlord requested that the hearing be treated as a confidential mediation, and if it was he was agreeable to pay the amount ordered within 2 working days. That request is declined. The tenant opposes that approach, and beside that, the hearing was not a mediation, it was hearing of strongly contested claims, from which a sealed Tribunal order was issued. Ultimately the Landlord is required to comply with that order given the stay has now been lifted, and if he fails to do so (pay the tenant the money ordered), then the tenant can have that order enforced by the Ministry of Justice Collections Unit, but I am sure the amount ordered will now be paid given the stay is lifted.
However, for the reasons set out above, the application for rehearing is declined.

Tenancy Tribunal case 4717450 — Tenancy dispute at 35 Holland Road, Hillcrest, Auckland 0627

At a glance

Claims & awards

Tenancy Tribunal case 4717450 — Tenancy dispute at 35 Holland Road, Hillcrest, Auckland 0627

At a glance

Claims & awards

Order

Reasons

LANDLORDS POSITION

TENANTS POSITION

ANALYSIS

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

LANDLORDS POSITION

TENANTS POSITION

ANALYSIS

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions