Published tribunal order
Tenancy Tribunal case 4892686 — State of repair at 42 Wendover Road, Glendowie, Auckland 1071
Decided 19 Nov 2024 · Published 19 Nov 2024 · Application 4892686
Tenant favoured
- State of repair
- Exemplary damages
Order
- The application for rehearing is dismissed.
- The application to stay enforcement proceedings is dismissed on the papers.
Reasons
- Both parties attended the hearing on 19 November 2024. Ms Sophie Lucas appeared as counsel for Bravo property Management Ltd, Lisa Taylor appeared for Taylor Property Management. Mr and Mrs Pretious appeared to present their reasons for their application for a rehearing. Ms Glendining and the tenants also attended the hearing.
- On 5 September 2024 the Tribunal made an order for: DescriptionLandlordTenant Rent arrears (18/7/24 to 28/7/24)$1,785.71 Break lease fee$997.56 Exemplary damages: S45(1) of RTA breaches $7,200.00 Compensation: Failure to maintain $8,871.43 Exemplary damages: S23(4)(a) of the RTA breach $1,500.00 Exemplary damages: No HH statement in TA $500.00 Exemplary damages: Interferences with utilities $1,800.00 Exemplary damages: Quiet enjoyment $1,000.00 Filing fee reimbursement $20.44 Total awards$2,783.27$21,141.87 Net award $18,358.60 Bond $5,000.00 Total payable by Landlord to Tenant $18,358.60
- On 12 September 2024, Richard Pretious has applied for a rehearing of the Tribunal Order, dated 5 September 2024, because: a. The property owner’s agent, specifically Bravo Property Management Ltd, is unwilling to request a rehearing on their behalf; b. The property owners are concerned there are issues of fact recorded in the 5 September 2024 Order that they do not agree with; and c. The property owners have evidence that refutes some of the facts and findings in the 5 September 2024 Order, particularly in relation to the interference with utilities claims.
- During the hearing, counsel for Bravo Property Management Limited argued the landlord should be granted a rehearing based on the landlord’s view the Tribunal’s decision is substantially wrong, based on the evidence the owners have gathered since the original hearing to disprove the findings of fact made by the Tribunal ( that would have been available to their agents with reasonable diligence for the original hearing), because the Tenancy Services website states: “You can apply for a rehearing if you think: •the decision was substantially wrong •a miscarriage of justice has or is likely to occur •new evidence, relating to the original application has become available”
- Further, Counsel for Bravo Property Management stated that lay litigants should be able to rely on this information when applying for a rehearing.
- The Ministry of Justice website clarifies the grounds for an application of a rehearing by providing the following guidance: “Grounds for a rehearing You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing; • the adjudicator improperly admitted or rejected evidence; • new evidence, relating to the original application, has become available”.
- The guidance provided by the Ministry of Justice is reiterated again at the end of all Tribunal Orders and was at the end of the Tribunal Order dated 5 September 2024 issued to the parties.
- The information on the Tenancy Services website and/or the Ministry of Justice website is not binding on the Tribunal. The legal doctrine of stare decisis requires the Tribunal to follow legal precedents from the New Zealand District Court and any higher New Zealand Courts when making a decision on a similar case. Stare decisis ensures that cases with similar case facts are approached in the same way by the Tribunal.
- 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 or to relitigate their case by putting forward a better defence than they were able to do at the original hearing after searching out additional evidence that refutes the findings of fact in the Tribunal Order, when that evidence would have been available to the party with reasonable diligence.
Has a substantial wrong or miscarriage of justice occurred?
- For the following reasons Richard Pretious has failed to establish the grounds for a rehearing.
- Mr Pretious submitted 684 pages of additional evidence and 9 videos as the basis for his claims that new evidence had become available that was not available to his agents for the first hearing with reasonable diligence and that this new evidence would have affected the outcome of the hearing.
- The landlord did not present any important new evidence that its agents could not have obtained with reasonable due diligence for the original hearing. The evidence the landlord provided in support of his application for a rehearing shows he went out to get new evidence after the original order as he did not agree with the Tribunal’s decision in relation to several of the tenants claims.
- After reviewing the evidence provided as part of the rehearing application, I am satisfied that no evidence has been provided by the landlord that supports a claim that an error in process or a substantial miscarriage of justice has occurred that would justify the granting of a rehearing.
- Lisa Taylor stated during the rehearing consideration hearing that she had gathered a lot of the evidence submitted by Mr Pretious with his rehearing application and that she had considered it to be Bravo Property Management Ltd’s job to gather the appropriate evidence to support the owner’s defence to the tenants claims and to present the best defence on the owners behalf because Bravo Property Management Ltd were the agents for the owners up to the date the tenants made their application to the Tribunal and for the majority of the tenancy.
- Counsel for Bravo Property Management Ltd argued that at the date the tenants filed their application with the Tribunal, Taylor Property Management Ltd were the agents for the owners, Bravo Property Management Limited had no authority to represent the owners at that time and it should have only ever been called as a witness for the owners by the new agent. This was a matter for the owners and their two agents to address between them and for the owners to decide who they wanted to present their best defence to the tenants’ claims.
- The owners stated Bravo Property Management Limited made them aware of the tenants claims, but told them they did not need to be present at the hearing. Bravo Property Management Limited confirmed to me at the start of the original hearing that Mr Pretious was aware of the hearing, had chosen not to attend and he was on standby to answer any questions should the agent need him. At no time did the agent ask for Mr Pretious to give evidence on any of the tenants claims or the evidence they produced.
- Counsel for Bravo Property Management Limited also argued that the Tribunal should have known there were large gaps in the evidence and given the agents more time to gather better evidence in the owner’s defence by delaying the original hearing.
- The Tribunal is required to hear and decide matters expeditiously. It is not an investigative body and has no powers to order disclosure of evidence. It is required to make findings of fact and apply the law to those facts based on the evidence put before it by the parties. No party applied for an adjournment of the original hearing date to allow it more time to gather better evidence. This was an option open to the owner and his agents. The owner could also had requested an adjournment of the original hearing date so that he could prepare for and participate in the hearing. He did not.
- The Tribunal confirms it considered all evidence submitted by both parties before and during the hearing. The landlord parties now argue that it was disadvantaged by the exchange of this new information presented by it and the tenants during the hearing. I note that at no time did the landlord’s agents ask for the hearing to be adjourned part heard so it could consider the new evidence and seek instructions from the owner. Had it done so, this request would have been granted.
- I am not persuaded that the new evidence which the landlord seeks to introduce was not available to its agents with reasonable diligence for the original hearing. There is also no apparent reason why that evidence was not provided before or at the hearing, given that the claims raised by the tenant and the date for the hearing were notified well in advance.
- The two agents have made it clear during the hearing, they did not work well together, or with the owner, to prepare the best evidence available to defend the tenants claims and the agents misjudged what would be required to formulate the best defence and who was the best person to lead the defence for the owner. The owner has taken the advice of his agents that he was not needed or required to attend the hearing and accepted that advice to his detriment. That does not mean the Tribunal process is incorrect or that is processes have led to a miscarriage of justice.
- The owner in his application for a rehearing has confirmed he was not happy with the Tribunal’s decision, because he has evidence to refute some facts and findings in the 5 September 2024 Order and that his position was not represented at the original hearing. A rehearing is not an opportunity for a party to that is unhappy with a Tribunal decision to have a second opportunity to present and/or relitigate its case or to present a better case, nor is it an alternative to an appeal.
- Lisa Taylor argued one last point, that I have misapplied the law as it relates to the compliance date for the landlord to meet the healthy homes standards. She correctly points out that the tenancy commenced between 28 August 2022 and 2 March 2025 and therefore the compliance date was 30 July 2024 and not 30 June 2024. The tenancy ended on 27 July 2024. I accept this was an error in the application of the law as the tenancy ended before the landlord had to comply with the heathy homes standards, and that the compliance timeframe was 120 days and not 90 days. However, the one section 45(1)(bb) of the RTA breach I incorrectly found would not have impacted the exemplary damage quantum I awarded. It was a consideration, but the overwhelming number of s45(1)(b) of the RTA breaches was what led to the maximum penalty available under section 45(1) of the RTA being awarded. I also note this was not a ground on which Mr Pretious applied for a rehearing.
- I do not find, on balance, that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
- The 5 September 2024 Order stands and is enforceable. Appeal rights
- Mr Pretious has indicated he intends to appeal the 5 September 2024 original Order out of time, based on advice he says he was given by the District Court to apply for a rehearing before appealing the originating Order and that he would still be in time to appeal the original Order after his rehearing application had been considered by the Tribunal. Mr Pretious is statutorily barred from appealing the 5 September 2024 originating Order, unless the District Court accepts his application to appeal the Order out of time. Statutorily, he had 10 working days from 5 September 2024 to appeal the originating Order, being 19 September 2024.
- Mr Pretious has also indicated that he intends to appeal my decision not to grant a rehearing, as he considers a substantial miscarriage of justice has occurred. The reason he gives for not agreeing with my dismissal of his rehearing application is that he was unable to gather evidence to defend the tenants claims until after he received my original Order and the new evidence he has gathered, despite being available with reasonable diligence to him and his agents before the originating hearing, should be admitted as new evidence and a rehearing granted as she says it proves the facts in the 5 September 2024 Order are wrong. Appealing this Order to the District Court within 10 working days is an option open to Mr Pretious.
- Filing a notice of appeal from the Tenancy Tribunal to the District Court does not automatically act as a stay of enforcement proceedings. As such, the tenants can now undertake enforcement proceedings, unless Mr Pretious files one or more appeals and the District Court orders a stay of enforcement proceedings.