What was the outcome of Tenancy Tribunal case 4891621?

The tribunal order states: The application for rehearing is granted. The order dated 20 June 2024 is set

How much money was awarded in case 4891621?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $1,100.00 awarded to landlord

What type of tenancy dispute was case 4891621?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4891621?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10669437-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4891621?

The tribunal order states: The application for rehearing is granted. The order dated 20 June 2024 is set

How much money was awarded in case 4891621?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $1,100.00 awarded to landlord

What type of tenancy dispute was case 4891621?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4891621?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10669437-Tribunal_Order.pdf.

8 Neston Grove, Churton Park, Wellington 6037 Tenancy Tribunal Case 4891621 — Rent arrears

Claims and awards in Tenancy Tribunal application 4891621 — net $1,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to Monday 13 August 2024	$1,100.00	Rent arrears to Monday 13 August 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,120.44
Total payable by Tenant to Landlord	$1,120.44

Order

The application for rehearing is granted. The order dated 20 June 2024 is set aside.
Finau Nil Tauiliili and Saofaigaaliilaunatausalaosamoa Tauiliili owes Mills Gibbon And Co Limited T/A First National Collective As Agent For Tarun Bhasin $1,120.44 (“the debt”) as calculated in the table below:
Finau Nil Tauiliili and Saofaigaaliilaunatausalaosamoa Tauiliili must pay rent and the debt as follows: a. By weekly payments of $1,300.00, being $1,200.00 for rent and $100.00 for the debt. b. Payments will be every Tuesday, with the first payment on 13/08/2024 and continuing until the debt is paid in full.
Payments will be allocated in the following order: rent, rent arrears, and the filing fee.
If the tenant fails to pay rent and rent arrears within 2 working days of the due dates: a. The tenancy at 8 Neston Grove, Churton Park, Wellington 6037 will terminate and the landlord will have immediate possession of the premises. b. The balance of the debt will be payable immediately.
If the tenant fails to pay the filing fee within 2 working days of the due date, the filing fee will be payable immediately.

Reasons

The landlord attended the hearing by telephone.
Saofaigaaliilaunatausalaosamoa Tauiliili attended the hearing by telephone with her sister, Lina Tauiliili, supporting her.

REHEARING APPLICATION

The tenant has applied for a rehearing of the Tribunal order dated 20 June 2024.
For the reasons set out below, I am satisfied that a miscarriage of justice may have occurred, and a rehearing is granted. See section 105 Residential Tenancies Act 1986. Rehearing’s to be heard by same adjudicator.
It is reasonably common practice in the Tenancy Tribunal that the application for rehearing is considered by the original adjudicator, being the adjudicator who made the decision which is sought to be reheard. I note that approach has been supported by the District Court. In the decision of Goston v Jamieson, the District Court confirmed that: It is nothing extraordinary (indeed it is perfectly ordinary) for an adjudicator or Judge to hear a rehearing application in respect of a decision he or she has earlier given... it would be a mistake for a disappointed party to conclude that because a decision gives precedence to the points made by, and the evidence of, the successful party, their own points of evidence have been ignored. Any adjudicator or Judge must make decisions as to what is persuasively relevant. It is a virtual inevitability that the content of his or her decision or judgement will show emphasis accordingly.
Similarly in the District Court decision of Dennis Fetherston & Anna Fetherston v Yunji Lee, (DC North Shore, CIV-2012-044-001127, 7 May 2013), the Court observed that: Adjudicator who hears the case initially, entitled to hear any rehearing application. It would be “normal practice” for an adjudicator to do so. Grounds for rehearing
Section 105 of the Residential Tenancies Act 1986 relates to rehearing. 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.”
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. Rehearing’s are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made. Analysis
The hearing of this matter was before me on 20 June 2024.
The tenants are Saofaigaaliilaunatausalaosamoa Tauiliili and Finau Nil Tauiliili.
The tenants were served with the application by post and email. Neither tenant appeared at the hearing. Lina Tauiliili appeared at the hearing. Lina Tauiliili is Saofaigaaliilaunatausalaosamoa Tauiliili’s sister and Finau Nil Tauiliili’s daughter.
The notes from the hearing indicate Lina Tauiliili advised the Tribunal that the tenants were unable to attend the hearing. Lina Tauiliili also advised that she was a tenant named on the tenancy agreement which was not correct and contributed to the confusion about her identity and role.
I was initially unclear as to whether Lina Tauiliili was the actual tenant or representing the tenant. The tenant had not informed the Tribunal that Lina Tauiliili would be appearing on their behalf so I had some initial reservations about whether she should be heard.
The landlord confirmed that they had been dealing with Lina Tauiliili in relation to the tenancy, that she was the person that was paying the rent and a conditional termination order was made with Lina Tauiliili’s input.
Given the initial confusion about Lina Tauiliili role at the hearing I consider it may appear as if a miscarriage of justice has occurred. I also consider that there is no prejudice to the landlord to rehear this matter.
I also find that due to an administrative error the tenant did not receive the order by email but rather a notification that the order had been made. This meant the tenant could not properly consider her rights in relation to the order and process.
These reasons were discussed with both the tenant and the landlord at the hearing and there was agreement for this matter to be reheard for these reasons. SUBSTANTIVE MATTER - TERMINATION
Having determined that a rehearing would be held and referring to my order of 20 June 2024 that if a rehearing is granted the substantive issue of rent arrears and termination would be considered afresh at the hearing so as not to further delay these matters, I heard from the parties on these matters.
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond. The tenant wants to repay the debt to avoid immediate termination.

Should a conditional termination order be made?

Where rent is at least 21 days in arrears on the date the application was filed, the Tribunal must make either a final or a conditional termination order. See section 55(1)(a) and (1A) Residential Tenancies Act 1986.
I am satisfied the tenants will pay the debt within the period specified in the order and are unlikely to commit any further relevant breach. I have granted a conditional termination order.
The tenants have paid off a significant amount of the arrears since the application was filed and the landlord consented to a conditional termination order being made on these terms. It is anticipated the tenants will repay the rent arrears in full in the next week or so, however if they fail to do so they must comply with the terms of the conditional termination order by making the weekly payments as a minimum.
The conditional termination order will lapse if it is fully complied with. If the tenants breach the order, the possession order may be enforced for 90 days from the first breach. See section 64(4)(b) Residential Tenancies Act 1986. Filing fee
Because the landlord has wholly or substantially succeeded with the claim I have reimbursed the filing fee. Suppression
Neither the landlord nor the tenant sought suppression.

Claims and awards in Tenancy Tribunal application 4891621 — net $1,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to Monday 13 August 2024	$1,100.00	Rent arrears to Monday 13 August 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,120.44
Total payable by Tenant to Landlord	$1,120.44

Order

The application for rehearing is granted. The order dated 20 June 2024 is set aside.
Finau Nil Tauiliili and Saofaigaaliilaunatausalaosamoa Tauiliili owes Mills Gibbon And Co Limited T/A First National Collective As Agent For Tarun Bhasin $1,120.44 (“the debt”) as calculated in the table below:
Finau Nil Tauiliili and Saofaigaaliilaunatausalaosamoa Tauiliili must pay rent and the debt as follows: a. By weekly payments of $1,300.00, being $1,200.00 for rent and $100.00 for the debt. b. Payments will be every Tuesday, with the first payment on 13/08/2024 and continuing until the debt is paid in full.
Payments will be allocated in the following order: rent, rent arrears, and the filing fee.
If the tenant fails to pay rent and rent arrears within 2 working days of the due dates: a. The tenancy at 8 Neston Grove, Churton Park, Wellington 6037 will terminate and the landlord will have immediate possession of the premises. b. The balance of the debt will be payable immediately.
If the tenant fails to pay the filing fee within 2 working days of the due date, the filing fee will be payable immediately.

Reasons

The landlord attended the hearing by telephone.
Saofaigaaliilaunatausalaosamoa Tauiliili attended the hearing by telephone with her sister, Lina Tauiliili, supporting her.

REHEARING APPLICATION

The tenant has applied for a rehearing of the Tribunal order dated 20 June 2024.
For the reasons set out below, I am satisfied that a miscarriage of justice may have occurred, and a rehearing is granted. See section 105 Residential Tenancies Act 1986. Rehearing’s to be heard by same adjudicator.
It is reasonably common practice in the Tenancy Tribunal that the application for rehearing is considered by the original adjudicator, being the adjudicator who made the decision which is sought to be reheard. I note that approach has been supported by the District Court. In the decision of Goston v Jamieson, the District Court confirmed that: It is nothing extraordinary (indeed it is perfectly ordinary) for an adjudicator or Judge to hear a rehearing application in respect of a decision he or she has earlier given... it would be a mistake for a disappointed party to conclude that because a decision gives precedence to the points made by, and the evidence of, the successful party, their own points of evidence have been ignored. Any adjudicator or Judge must make decisions as to what is persuasively relevant. It is a virtual inevitability that the content of his or her decision or judgement will show emphasis accordingly.
Similarly in the District Court decision of Dennis Fetherston & Anna Fetherston v Yunji Lee, (DC North Shore, CIV-2012-044-001127, 7 May 2013), the Court observed that: Adjudicator who hears the case initially, entitled to hear any rehearing application. It would be “normal practice” for an adjudicator to do so. Grounds for rehearing
Section 105 of the Residential Tenancies Act 1986 relates to rehearing. 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.”
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. Rehearing’s are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made. Analysis
The hearing of this matter was before me on 20 June 2024.
The tenants are Saofaigaaliilaunatausalaosamoa Tauiliili and Finau Nil Tauiliili.
The tenants were served with the application by post and email. Neither tenant appeared at the hearing. Lina Tauiliili appeared at the hearing. Lina Tauiliili is Saofaigaaliilaunatausalaosamoa Tauiliili’s sister and Finau Nil Tauiliili’s daughter.
The notes from the hearing indicate Lina Tauiliili advised the Tribunal that the tenants were unable to attend the hearing. Lina Tauiliili also advised that she was a tenant named on the tenancy agreement which was not correct and contributed to the confusion about her identity and role.
I was initially unclear as to whether Lina Tauiliili was the actual tenant or representing the tenant. The tenant had not informed the Tribunal that Lina Tauiliili would be appearing on their behalf so I had some initial reservations about whether she should be heard.
The landlord confirmed that they had been dealing with Lina Tauiliili in relation to the tenancy, that she was the person that was paying the rent and a conditional termination order was made with Lina Tauiliili’s input.
Given the initial confusion about Lina Tauiliili role at the hearing I consider it may appear as if a miscarriage of justice has occurred. I also consider that there is no prejudice to the landlord to rehear this matter.
I also find that due to an administrative error the tenant did not receive the order by email but rather a notification that the order had been made. This meant the tenant could not properly consider her rights in relation to the order and process.
These reasons were discussed with both the tenant and the landlord at the hearing and there was agreement for this matter to be reheard for these reasons. SUBSTANTIVE MATTER - TERMINATION
Having determined that a rehearing would be held and referring to my order of 20 June 2024 that if a rehearing is granted the substantive issue of rent arrears and termination would be considered afresh at the hearing so as not to further delay these matters, I heard from the parties on these matters.
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond. The tenant wants to repay the debt to avoid immediate termination.

Should a conditional termination order be made?

Where rent is at least 21 days in arrears on the date the application was filed, the Tribunal must make either a final or a conditional termination order. See section 55(1)(a) and (1A) Residential Tenancies Act 1986.
I am satisfied the tenants will pay the debt within the period specified in the order and are unlikely to commit any further relevant breach. I have granted a conditional termination order.
The tenants have paid off a significant amount of the arrears since the application was filed and the landlord consented to a conditional termination order being made on these terms. It is anticipated the tenants will repay the rent arrears in full in the next week or so, however if they fail to do so they must comply with the terms of the conditional termination order by making the weekly payments as a minimum.
The conditional termination order will lapse if it is fully complied with. If the tenants breach the order, the possession order may be enforced for 90 days from the first breach. See section 64(4)(b) Residential Tenancies Act 1986. Filing fee
Because the landlord has wholly or substantially succeeded with the claim I have reimbursed the filing fee. Suppression
Neither the landlord nor the tenant sought suppression.

Tenancy Tribunal case 4891621 — Rent arrears at 8 Neston Grove, Churton Park, Wellington 6037

At a glance

Tenancy Tribunal case 4891621 — Rent arrears at 8 Neston Grove, Churton Park, Wellington 6037

At a glance

Award balance

Claims & awards

Order

Reasons

REHEARING APPLICATION

Should a conditional termination order be made?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

REHEARING APPLICATION

Should a conditional termination order be made?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions