What was the outcome of Tenancy Tribunal case 4718692?

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

How much money was awarded in case 4718692?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4718692?

The primary dispute was Mould & damp. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4718692?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11046005-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4718692?

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

How much money was awarded in case 4718692?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4718692?

The primary dispute was Mould & damp. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4718692?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11046005-Tenancy_Tribunal_Order.pdf.

34D Anzac Road, Browns Bay, Auckland 0630 Tenancy Tribunal Case 4718692 — Mould & damp

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Reasons

Both parties attended the hearing.

The landlord, Ms. Robinson, attended the hearing accompanied by her support person, Mr. Jules, who sat in the back of the court.

The tenants, Mr. Ivanovic and Ms. Zivkovic, were also present at the hearing.

On May 13, 2024, the Tribunal issued an order that involved both the landlord and the tenants. Subsequently, on May 16, 2024, Ms. Robinson applied for a rehearing, citing specific grounds for her application.: a. That she did not have the intention not to lodge the bond with the Bond Centre; b. That on 2 November 2023, she had consent to enter the premises; c. That there was no dampness and/or draughty issues. Accordingly, I should not award compensation to cover power. Furthermore, Ms Robinson submitted that the tenants had never paid power or water (“utilities”) per the tenancy agreement. The rent was inclusive of power and water. The Law

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.

In Wellington City Council v McMillan [2003] DCR 50, the District Court 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: [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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons, Ms Robinson has failed to establish the grounds for a rehearing. Bond issue

Ms. Robinson stated she did not intend to withhold lodging the bond. She mentioned that only a partial bond amount was ever received from the tenants, not the full amount stated in the agreement.

Ms Robinson’s submission on this issue is challenging my decision that I should not award exemplary damage in favour of her tenants.

Her submission does not reach the threshold for a rehearing because the appropriate remedy is to appeal the decision, not a rehearing. Entry without consent on 2 November 2023

Ms. Robinson disputed a claim related to unauthorised entry, asserting that any entry by her or a builder was done with the tenants’ awareness and consent.

Again, Ms Robinson’s submission on this issue is challenging my decision in finding the entry on 2 November 2024 was without consent.

Again, the appropriate remedy is to appeal the decision, not a rehearing. Dampness and Compensation for Utility

Ms. Robinson argued there was no dampness or draught in the property. She referenced photos to demonstrate the conditions and claimed there was no mould or dampness, as the tenants alleged.

I declined to view the photos because the hearing today is not a hearing from ground zero. The hearing today is solely to do with her rehearing application.

As part of Ms. Robinson’s complaint, she argued that the tenants should not have been compensated for utilities because there was no dampness in the property.

Furthermore, Ms. Robinson referenced the tenancy agreement to support her complaint that the tenants had not paid for utilities since moving in. She contended that the property was rented at a below-market rate to attract responsible tenants.

In her evidence, Ms. Robinson stated that she included the cost of utilities in the rent due to issues with metering, as the apartment is under one meter. The tenants’ reply (in summary form)

The tenants claimed that the bond arrangement and payment terms were initially managed by Ms. Robinson’s son. It was a fact that Ms. Robinson failed to lodge the bond with the Bond Centre.

The tenants maintained that they did not give consent for the entry made on 2 November 2023. They argued that the property was draughty and damp, requiring them to perform regular maintenance, such as cleaning the heat pump, to keep it habitable.

They referenced a significant repair cost mentioned by Ms. Robinson earlier, arguing that improvements were necessary to make the property liveable.

The tenants supported the decision to award compensation in their favour and indicated that they believed the rent included utilities due to the absence of separate meters for power and water.

Additionally, they contended that Ms. Robinson's son had initially informed them that the rent included an estimated cost for electricity and water. My view – dampness and compensation for utility

Was the property damp and/or draughty? I found that the apartment was damp and draughty. Ms. Robinson passionately challenges my finding of fact. Therefore, the appropriate course of action is to appeal the decision rather than seek a rehearing.

Regarding compensation for the tenants, Ms. Robinson submits that, based on the tenancy agreement, they should not have to "pay" for utilities.

Ms. Robinson also pointed out that any references to utilities in the tenancy agreement were crossed out.

While that may be true, the agreement does not explicitly state that utilities are "free of charge." It is a fact that at the start of the tenancy, the parties were on good terms. Ms. Robinson might have decided to cover the utility costs for the tenants. Conversely, it is equally plausible—and holds the same weight in my assessment—that she included the utilities in the rent because separating the utility costs for each apartment was not feasible for Ms. Robinson.

Accordingly, I do not accept a substantial wrong occurred in my decision dated 13 May 2024.

For the reasons above, Ms Robinson’s rehearing application is dismissed.