What was the outcome of Tenancy Tribunal case 4797911?

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

How much money was awarded in case 4797911?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4797911?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4797911?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10891915-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4797911?

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

How much money was awarded in case 4797911?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4797911?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4797911?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10891915-Tribunal_Order.pdf.

22 Lachlan Place, Favona, Auckland 2024 Tenancy Tribunal Case 4797911 — Property damage

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing held today.
On 27 May 2024 the Tribunal made an order in favour of the landlord for repair work and carpet damage.
On 6 August 2024 the landlord applied for a rehearing on the grounds that new evidence (being the successful claim by the landlord for the insurance for the carpet) was now available. The seeks to have the claim for the carpet reheard as it would like to recover the insurance excess. 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”.
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. 1 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.
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 (own emphasis). 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 1 Yogeswaran v Doubletree Properties Ltd [2021] NZDC 15704 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. In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearing’s are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
The High Court has confirmed that it is not a miscarriage of justice to decline rehearing just because evidence was not considered at original hearing, when that evidence could have been produced at original hearing. 2 Decision.
I accept that at the hearing the landlord had not had their insurance claim processed and therefore the evidence was not available at the hearing.
However, I do not consider that this new evidence would have affected the outcome of the hearing, because: a. In my decision I noted that the tenants had damaged the carpets over the tenancy but also noted that the carpets were at the end of their depreciable lifespan The carpets are likely to be original carpets (the house was built in 2015 meaning that the carpets were 8 (almost 9) years old). The depreciation lifespan according to IRD IR265 for carpets in residential tenancies is 8 years. Therefore, the carpet was at the end of its depreciable life. Despite this I consider that the staining accelerated the replacement and therefore have awarded the landlord $300.00 for the carpet. 3 b. The fact that the landlord has been successful in claiming insurance for the carpet does not alter the age of the carpet. 2 Angelo v Lehr [2022] NZHC 3033 3 Paragraph 17 c. The Tribunal is not bound by any finding or determination by the insurers. The insurer makes their own determination on their claim before them, including whether to apply depreciation or not. d. I do not consider it fair to require the tenant to pay the landlord’s insurance excess because this is more than the value of the carpet at the end of the tenancy. If the Tribunal awarded the landlord the insurance excess, then it would mean that the landlord had the carpet replaced at no cost to them despite having the ‘use (rent for a carpeted property) for 9 years’.
For these reasons the rehearing is declined, and the order of the 27 May 2024 stands.

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing held today.
On 27 May 2024 the Tribunal made an order in favour of the landlord for repair work and carpet damage.
On 6 August 2024 the landlord applied for a rehearing on the grounds that new evidence (being the successful claim by the landlord for the insurance for the carpet) was now available. The seeks to have the claim for the carpet reheard as it would like to recover the insurance excess. 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”.
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. 1 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.
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 (own emphasis). 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 1 Yogeswaran v Doubletree Properties Ltd [2021] NZDC 15704 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. In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearing’s are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
The High Court has confirmed that it is not a miscarriage of justice to decline rehearing just because evidence was not considered at original hearing, when that evidence could have been produced at original hearing. 2 Decision.
I accept that at the hearing the landlord had not had their insurance claim processed and therefore the evidence was not available at the hearing.
However, I do not consider that this new evidence would have affected the outcome of the hearing, because: a. In my decision I noted that the tenants had damaged the carpets over the tenancy but also noted that the carpets were at the end of their depreciable lifespan The carpets are likely to be original carpets (the house was built in 2015 meaning that the carpets were 8 (almost 9) years old). The depreciation lifespan according to IRD IR265 for carpets in residential tenancies is 8 years. Therefore, the carpet was at the end of its depreciable life. Despite this I consider that the staining accelerated the replacement and therefore have awarded the landlord $300.00 for the carpet. 3 b. The fact that the landlord has been successful in claiming insurance for the carpet does not alter the age of the carpet. 2 Angelo v Lehr [2022] NZHC 3033 3 Paragraph 17 c. The Tribunal is not bound by any finding or determination by the insurers. The insurer makes their own determination on their claim before them, including whether to apply depreciation or not. d. I do not consider it fair to require the tenant to pay the landlord’s insurance excess because this is more than the value of the carpet at the end of the tenancy. If the Tribunal awarded the landlord the insurance excess, then it would mean that the landlord had the carpet replaced at no cost to them despite having the ‘use (rent for a carpeted property) for 9 years’.
For these reasons the rehearing is declined, and the order of the 27 May 2024 stands.

Tenancy Tribunal case 4797911 — Property damage at 22 Lachlan Place, Favona, Auckland 2024

At a glance

Tenancy Tribunal case 4797911 — Property damage at 22 Lachlan Place, Favona, Auckland 2024

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