What was the outcome of Tenancy Tribunal case 4965234?

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

How much money was awarded in case 4965234?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4965234?

The primary dispute was Leaks. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4965234?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11161095-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4965234?

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

How much money was awarded in case 4965234?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4965234?

The primary dispute was Leaks. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4965234?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11161095-Tribunal_Order.pdf.

17 Causeway Road, Surfdale, Waiheke Island 1081 Tenancy Tribunal Case 4965234 — Leaks

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Reasons

On the 26 October 2024 I made an order requiring the landlord to pay the tenant $1877.00 being the balance owed for a breach of s13(F), and exemplary damages for breaches of Healthy Homes Standards, failure to maintain and seeking to terminate without grounds and the filing fee. I also ordered the tenant to pay $122 for electricity which was set off against the amounts awarded.

The landlord applied for a rehearing.

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 landlord has advanced the following points as a reason that a rehearing should be granted: a. That the tenant knew that the landlord was overseas when they filed the application. The landlord was overseas until shortly before the tribunal hearing and had insufficient time to prepare for the hearing. b. Mr Petrou does not have day to day running of the business therefore it was more difficult to access evidence needed for the hearing. c. Mr Petrou was sick on the day of the hearing and this prevented him from being able to the present his defence in the way he would have liked. d. That the tenant misled the tribunal about the structure of the business. That the tenant was far more involved with other staff accommodation than she acknowledged. e. That evidence given by the landlord was dismissed or not favoured. f. That the tenant’s involvement in the landlord’s business meant that she had effective management of the tenancy, including being able to have access to insurance documents and maintenance persons. g. That the tenant had more than a month to sign her tenancy agreement, she was told to get independent advice. It was incumbent on her to take legal advice and raise any issues before signing. h. That the tenant asked to bring a dog and knew that there was a pet flap. i. That the determination regarding the leak cannot be correct because the particle board is not damaged. j. That the tenant knew that there was no kitchen extraction fan and did not mind. k. That the tenant acted dishonestly and worked for someone else. l. That the tenant only raised issues at the end of the tenancy. m. That this claim is vindicative and arises only because of an employment dispute. n. That the landlord has further claims that he wants to bring but has not had a chance to do so.

The tenant opposes a rehearing being granted. She says that the landlord is raising issues that have already been heard and determined. There is no new evidence that supports any of the grounds.

The tenant also says that the landlord has had 5 months to submit a counterclaim and has not done so. The tenant notes that no further evidence has been filed in support of the landlord’s counterclaim. The relevant law.

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. 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. Rehearings 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 The decision.

I am not satisfied that a rehearing should be granted. I say this for the following reasons: a. The issue as to whether the landlord had sufficient time to prepare for the hearing was raised and determined by me at the hearing – see paragraph s 2-5 of my order. I consider that the applicant had sufficient time to prepare for the hearing. b. There is no new evidence filed by the landlord. Mr Petrou says that he needed further time to go through business documents etc, but he has not filed any new evidence that would support his case or may change any outcome. c. I do not consider that Mr Petrou was unable to represent himself that day. He was able to speak to me about all of the matters raised and refer me to evidence on each point. 2 Angelo v Lehr [2022] NZHC 3033 d. Most of Mr Petrou’s grounds for rehearing are essentially that the Tribunal’s findings are wrong or mistaken. This is not a reason for a rehearing to be granted. e. Mr Petrou has not demonstrated that there is or may be miscarriage of justice or a substantial wrong that may occur.

The Application for rehearing is declined the order of the 26 October 2024 stands and may be enforced immediately.

Reasons

The landlord applied for a rehearing.

The tenant opposes a rehearing being granted. She says that the landlord is raising issues that have already been heard and determined. There is no new evidence that supports any of the grounds.

The Application for rehearing is declined the order of the 26 October 2024 stands and may be enforced immediately.

Tenancy Tribunal case 4965234 — Leaks at 17 Causeway Road, Surfdale, Waiheke Island 1081

At a glance

Tenancy Tribunal case 4965234 — Leaks at 17 Causeway Road, Surfdale, Waiheke Island 1081

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