What was the outcome of Tenancy Tribunal case 4914853?

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

How much money was awarded in case 4914853?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4914853?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4914853?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10531018-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4914853?

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

How much money was awarded in case 4914853?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4914853?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4914853?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10531018-Tenancy_Tribunal_Order.pdf.

8 Hilda Road, Favona, Auckland 2024 Tenancy Tribunal Case 4914853 — 14-day notice

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing to consider the landlord’s rehearing application, conducted by teleconference. Ms Roberta Perese represented the landlord at both this and the first hearing.
On 3 July 2024 the Tribunal made an order declining to order termination as sought by the landlord per s 55(1)(c)(i) Residential Tenancies Act 1986 (“RTA”).
On 10 July 2024, the landlord applied for a rehearing on the grounds that refusing a termination order (relying on the provision of s 55(2) was a serious miscarriage of justice or substantial wrong. It claimed natural justice was breached as it was not given the opportunity to provide a response to matters raised at the hearing.
Further, while no termination order was made, the application was not dismissed. A provision was made for the matter to be reopened and returned to me (a “closed unless” order) if the landlord had reason to believe the tenant commits a further breach of s 55(1)(c)(i) within the next 120 days. The landlord believes such an order was not available to me.
Decisions issued by the Tribunal are binding on both parties, however the RTA allows either party to apply for a rehearing. In particular, s 105 of the RTA relates to rehearings. 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.
If a rehearing is granted, then the Tribunal would direct that the whole or part of the original hearing be held again.
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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Kāinga Ora–Homes And Communities has failed to establish the grounds for a rehearing. Evidence not considered
Kāinga Ora submitted that Ms Scott had a history of verbally abusing staff via phone call and text. It submitted: “The Tribunal acknowledged but gave insufficient weight to this history of abusive behaviour because it did not involve threats. The adjudicator considered that this was the first instance of a serious nature in almost six years of this tenancy. Evidence of Ms Scott’s abusive behaviour ranges back to [date of first incident] and this behaviour has escalated with time ultimately resulting in Ms Scott’s threat of assault against Ms Steel. Although there were no threats of assault until the 22 April incident, there were in fact other instances of a serious nature in the history of this tenancy.
Kāinga Ora believes that this history shows a pattern of escalating serious behaviour that warrants immediate intervention by the tribunal and that this history should have been given due consideration in assessing whether the breach is likely to happen again.
Further, at the rehearing consideration, the landlord suggested that at the hearing it wanted Ms Steel called to talk to the impact on her. I have no recollection or note of any such request. In fact, a feature of some other such applications around this time from this landlord has been the lack of local landlord input. Such input may be important in such determinations. More recent hearings from the same landlord have included local staff without issue – they have been provided the meeting link and been present from the start. I do not believe any request to hear from Ms Steel was made, nor was she included in the hearing by the landlord where she could have attended as of right.
There was further discussion at the rehearing consideration regarding other documents. The landlord and I confirmed the documents as submitted and no evidence regarding prior behaviours was submitted.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
Regardless, the previous behaviours were abusive but, in the words of the landlord in its rehearing submission, “there were no threats of assault until the 22 April incident”. Given the termination was regarding a threat to assault, any history of abusive behaviour (which I am satisfied there was) was informative but not decisive.
I do not consider the issue of evidence, lack of prior, or denied opportunity to later produce, establish grounds for a rehearing. As an aside, if behaviour concerns existed since 2019 there has been ample opportunity for the landlord to seek redress through other provisions of the RTA. I do not believe any notice to remedy or anti-social behaviour notices have been served. Such steps may have produced positive behaviour changes prior to the April 2024 event. Apology
The landlord believes the Tribunal concluded that the tenant’s claimed apology was “relevant to compensating the landlord: the Decision to exercise the Tribunal’s discretion gave weight to, and found credible, Ms Scott’s assertion that she thought this matter was resolved because she would apologise to Kāinga Ora staff. The discretion offered by section 55(2) requires that “the landlord has been compensated for any loss arising from the breach” which implies that the compensation must have been made prior to the hearing”.
It believes the Tribunal was wrong to conclude that Ms Scott’s remorse during the hearing was sufficient to compensate the landlord considering it was not made prior to the hearing.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours.
Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent.
The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: [46] Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). The breach irremediably arises when the specified failure occurs. [47] It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy.
I do not dispute the action of the tenant on 22 April 2024 was a serious threat to assault directed at one person. However, I based my subsequent determination on a number of factors. Firstly, the threats were made via the Customer Service Centre agent, with the tenant confirming to the agent she was out of town (in a supermarket). While the landlord submits the agent attempted to deescalate the situation, having listened to the call several times, and having every sympathy with the challenging calls the agents receive, I remain of the view that the escalation in that call might have been prevented or at least moderated. The tone of the tenant at commencement of the call appears reasonable. There was no immediate threat to Ms Steel given the geographical separation. The commencement process of such calls is laborious and procedural, requiring the caller to cite reference numbers that may not be at hand, and then the later placing the tenant on hold while Ms Steel, and the police, were contacted by the agent prolonged the engagement with an unsurprising hang up by the tenant.
As an aside, the landlord explained at the hearing they do not hold master keys for any of their properties, hence the need to engage a locksmith to lockpick for entry for an inspection. I have no view on that policy, but other landlords enter premises to conduct inspections, having given suitable notice to the tenant, with what may be a lighter emotional footprint.
The above factors were all considerations in my determination and I do not agree that any lack of, or weakness in, an apology is sufficient to justify a rehearing.
To Ms Steel’s credit, her communication and approach in response (as evidenced in text massages) to the barrage was commendable. She did nothing wrong in my assessment.
I conclude this section with an observation for Ms Scott that an effective and genuine apology will go some way to restoring the mana, dignity and self- respect of the affected parties. It may be that further effort from her, on reflection, may be healthy for both her and Ms Steel. Merits and justice
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case. The Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
In Nixon v Geal-Otter DC North Shore TT 216/94, 6 December 1995, Judge Thorburn made the following comments on the approach that s 85 requires the Tribunal, and the District Court on appeal, to take in residential tenancy disputes: The long title to the Act includes as part of the philosophy of the Act, expeditious determination of disputes. The Tribunal and the District Court must adopt an approach which protects that philosophy. Section 85 elaborates on the philosophy, requiring jurisdiction to be applied in a manner that is most likely to ensure the fair and expeditious resolution of disputes, and injuncts that disputes should be determined in accordance with general principles of law and substantial merits and justice but not so as to be bound to give effect to strict legal forms or technicalities. There must be an approach that reflects a broad intuitive sense of propriety in the circumstances of each case and recognises the overall impression and sense of fairness and equity. The broadness of this approach imports a recognition of earthy commonsense to resolution which could be marginalised if the Tribunal and courts slavishly applied technically correct legal niceties.
The determination did not hinge on any apology, it was a factor amongst a number that were considered. Provision in the order for reopening the matter
The exercise of s 55(2) also requires the Tribunal to be satisfied it is unlikely that the tenant will commit any further breach of a kind to which this section applies.
The landlord believes the Tribunal was wrong to conclude that Ms Scott was unlikely to commit further breaches and that the provision for reopening has no statutory basis.
It is difficult to predict the future and I equally do not conclude that future threats of assault will not be made. I do believe it is unlikely. The provision of the reopening was a further comfort that, if I am wrong in declining a termination at this time, the landlord has quick recourse. I record below paragraph 18 from my 3 July 2024 order: I have provided in this order that the landlord may request this matter be reopened under urgency within the next 120 days if there are any further such breaches. I hope the seriousness and likely consequences if this matter is reopened were understood by Ms Scott.
I consider this a fair position considering all circumstances. The landlord is of course free to use other tools in the RTA to manage other behavioural issues if and when they present. This tenancy may end through a number of means if the grounds are so established.
Regarding the legality of such an order, I consider s 78(3) RTA provides for this and s 85 considerations merit it. Section 78(3) states: Any order made by the Tribunal may be unconditional or subject to such conditions (whether as to the time for, or mode of, compliance, or otherwise) as the Tribunal thinks fit to impose.
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. An appeal would be the more appropriate recourse to challenge the application of the Act.
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.
For the above reasons, the application for a rehearing is dismissed. The order of 3 July 2024 remains in place.

Tenancy Tribunal case 4914853 — 14-day notice at 8 Hilda Road, Favona, Auckland 2024

At a glance

Tenancy Tribunal case 4914853 — 14-day notice at 8 Hilda Road, Favona, Auckland 2024

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions