What was the outcome of Tenancy Tribunal case 5152511?

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

How much money was awarded in case 5152511?

Costs: $2,500.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5152511?

The dispute type was not classified.

Where can I read the official tribunal order for case 5152511?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11847266-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5152511?

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

How much money was awarded in case 5152511?

Costs: $2,500.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5152511?

The dispute type was not classified.

Where can I read the official tribunal order for case 5152511?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11847266-Tribunal_Order.pdf.

36 Rika Road, Pakotai, RD 2, Whangarei 0172 Tenancy Tribunal Case 5152511 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5152511 — net $2,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Costs	$2,500.00	Costs
Filing fee reimbursement	$27.00	ful with the claim, the Tribunal must reimburse the applicant the filing fee of $27. 16 Suppression
Net award	$2,527.00
Total payable by Tenant to Landlord	$2,527.00

Claims and awards in Tenancy Tribunal application 5152511 — net $2,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Costs	$2,500.00	Costs
Filing fee reimbursement	$27.00	ful with the claim, the Tribunal must reimburse the applicant the filing fee of $27. 16 Suppression
Net award	$2,527.00
Total payable by Tenant to Landlord	$2,527.00

Order

The application for rehearing is dismissed.
The Possession order dated 17 February 2025 remains enforceable.
Alexander Taras Zayachkov and Lyndsay Patricia James must pay Powhiri Wharemarama Rika-Heke $2,527.00 immediately, calculated as shown in table below:

Reasons

Both parties attended the remote hearing. Both parties were represented with the consent of the other.
I note that there are two respondents, Mr Zayachkov and Ms James. Ms James has not participated in the proceedings. I will refer to the respondents jointly as “the respondent’ for ease of reference.
There were two issues for determination at the hearing: a.The respondent applied for me to recuse myself. b.The respondent applied for a rehearing.
The applicant also seeks costs in relation to the previous order and in relation to the rehearing application if the respondent is unsuccessful.
I will deal with each issue in turn.

RECUSAL

I firstly deal with the respondent’s application that I recuse myself from hearing this application for a re-hearing. The respondent says there are two grounds on which I should recuse myself, which are: a.I have a conflict of interest as I am now a named respondent in formal complaints and claims filed with both the District Court and the High Court. b.That I made errors in failing to adjourn the first hearing despite the respondent saying he was not served, that the instructions to attend the hearing by MS Teams were not reasonable or accessible and that he had contacted Tenancy Services and the Tribunal to clarify matters for which no reasonable response was given.
It is settled law that when a judicial officer is assigned to a case, they have a duty to hear it. 1 In Nottingham v The Real Estate Agents Authority the Court of Appeal confirmed that just because a decision maker had found against a party, that is not reason for recusal.
In addition, it is the practice of the Tribunal that an 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. 2 Similarly in the District Court decision of Fetherston v Lee, the Court confirmed 1 Nottingham v The Real Estate Agents Authority. [2023] NZCA 233 2 Goston v Jamieson [2001] DCR 361 at [84]. that an Adjudicator who hears the case initially, is entitled to hear any rehearing application and that this would be “normal practice”. 3
The respondent’s complaints about procedural matters do not provide a basis for me to recuse myself but are relevant to the application for a rehearing. Any cause for complaint is rejected and, in any event, is in and of itself not a basis for recusal. I consider an independent reasonable observer of the proceedings and procedural background could not take the view that there has been bias or unfairness in my hearing of this matter. There is no reason I should recuse myself. The application for recusal is declined. I gave this decision orally at the hearing and proceeded to hear the rehearing application.

REHEARING

The relevant law that applies is the Residential Tenancies Act 1986 (“RTA”)
The RTA states the Tribunal has the power to order a rehearing of the whole or any part of the proceedings on the grounds that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur. 4
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.
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. 5
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 6 Judge Tuohy held that the statutory language set a high standard, and that: [18] By contrast, by virtue of the specific terms of s 105, an application for rehearing can only succeed if the applicant shows that a substantial wrong or miscarriage of justice has or may have occurred or is likely to have occurred. These are strong words which set a high standard. They most obviously apply, as the adjudicator pointed out, to 3 Fetherston v Lee DC North Shore, CIV-2012-044-001127, 7 May 2013. 4 See s 105 of the RTA. 5 Yogeswaran v Doubletrees Properties Ltd [2021] NZDC 15704 6 Wellington City Council v McMillan [2003] DCR 50. 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.
As noted in the District Court appeal of Loh v Puri 7 : Rehearing’s are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
A rehearing may 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 8 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. 7 Loh v Puri [2019] NZDC 1993 Judge Christiansen. 8 Jemma Trust v Rutherford (DC North Shore, CIV-2009-044-2056, 11 December 1999).
The High Court in Angelo v Lehr 9 confirmed that it was not a miscarriage of justice to decline a rehearing just because evidence was not considered at the original hearing, when that evidence could have been produced at the original hearing.
The applicant filed her application for a possession order on 31 January 2025. The respondent was notified of the application by email. On 5 February 2025 a hearing was scheduled, and the notice of hearing emailed to the parties. The respondent was emailed the application form and supporting documents that day. On 10 February 2025 the respondent provided a detailed written response to the application.
The respondent applied for an adjournment on 13 February 2025 (a day before the hearing) on the basis he had not received instructions to access the hearing and had received the hard-copy application and notice of hearing by post that day. I declined to grant the adjournment as I was satisfied the respondent had been served by email on 5 February 2025.
The hearing proceeded on 14 February 2025.
On 17 February 2025 the Tribunal granted the applicant a possession order.
On 21 February 2025 the respondent filed an application for rehearing and applied for a stay as it relates to the possession order. I set the application for a rehearing down for a hearing but declined to grant a stay. Service
The respondent has applied for a re-hearing on the grounds he was not properly served by email and received the application a day before the hearing and therefore did not have opportunity to prepare and instruct Counsel. The respondent confirmed his email address at the hearing.
The applicant seeks that the Tribunal confirm the determinations made in the previous order as to service and say no affirmative action was taken by the respondent to instruct Counsel before the hearing, for which the respondent had time to do so.
The Tribunal records show the respondent was served to his email address on 5 February 2025 and the hearing was on 14 February 2025. I consider the 9 Angelo v Lehr [2022] NZHC 3033 respondent had sufficient time to seek legal advice. I consider the respondent has not provided sufficient evidence to show he had any difficulty with this. New evidence
The respondent seeks a re-hearing in order to submit new evidence by way of an “affidavit” 10 dated 20 February 2025 (“statement”). The respondent says the statement includes matters relevant to the application for a possession order.
The applicant says the statement does not contain any genuinely new evidence and the contents relates to historical evidence and prior correspondence already known to the respondent before the hearing.
On 7 April 2025 the respondent added to the grounds for a re-hearing that the Tribunal granted the possession order without properly investigating criminal conduct by the applicant. I consider this issue would fall within the category of new evidence and I do not consider this is a relevant matter to an application for a possession order applied for under s65 of the RTA.
I am not satisfied that the respondent has provided any new evidence which would change the outcome of the hearing. Jurisdiction
The respondent also claims the Tribunal lacks jurisdiction in that this is a property and equity dispute for the District or High Court, not a tenancy dispute and that the respondents counter-claim exceeded the Tribunals jurisdiction. I consider the respondent is unhappy with my finding that the Tribunal has jurisdiction but has not provided sufficient grounds to illustrate a flaw in the procedure in reaching that finding. Accordingly, the claim in respect of a lack of jurisdiction does not provide a basis to grant a rehearing. Outcome
The respondent has provided no grounds that may be procedural in nature to support the application for a rehearing. While I recognise the respondent will be unhappy with the outcome of the original hearing, that is the outcome. 10 I note that the Affidavit referred to does not appear to have been sworn or affirmed before a Court Registrar, Justice of the Peace or Enrolled Barrister or solicitor.
For the reasons set out above, I am not satisfied that a miscarriage of justice may have occurred, and a rehearing is declined. 11

COSTS

The applicant in this matter has applied for costs.
The Tribunal may make an order for costs where any of the parties were represented by counsel. The order for costs may be reasonable costs incurred in connection with the proceedings. 12 What is considered to be reasonable costs will depend on a range of factors.
In Holden v Architectural Finishes Ltd 13 Justice McGechan, in his reserved costs decision, listed factors relevant to assessing costs which included: a. The length of the hearing. b. The amount of money involved. c. The importance of the issues, in a monetary or a non-monetary sense, to either the parties or generally. d. The legal and factual complexity. e. Whether urgency was required. f. The amount of time required for preparation. g. The number, complexity, and urgency of interlocutory applications. h. Whether any unnecessary steps had been undertaken. i. Whether arguments lacking substance were advanced. j. An abuse of the process. k. Poor pleading and/or presentation of the case. l. Unreasonable or obdurate refusal to settle. m. Technical or unmeritorious points. n. The degree of success achieved by the parties. o. Whether the hearing was lengthened or shortened by the conduct of either party. p. Fault, notwithstanding success.
Justice McGechan further stated: ...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or 11 See section 105 Residential Tenancies Act 1986. 12 Section 102 of the Residential Tenancies Act 1986 13 Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable contribution’ earlier determined falls within a middle range, say 40% to 70%,there is a feeling of some comfort...
I am mindful of the general discouragement in the RTA of parties being represented as the Tribunal is a lay Tribunal.
At commencement of the first hearing the respondent consented to the applicant being represented by Counsel. However, prior to that point the respondent claimed that this matter involved values in excess of $6000 14 – thereby bringing the matter within section 93 (2) (b) of the RTA which entitles parties to be represented. In saying this however, no cross application was filed in the Tribunal for any monetary order by the respondent.
While no specific some of money was claimed in the Tribunal, the possession of the residential premises is an important matter for both parties.
The respondent’s response to this application made is become legally or factually complex and more time consuming than necessary for the applicant’s Counsel.
The initial hearing of this matter was scheduled for 90 minutes but the actual hearing time was less. The application for a rehearing was heard in approximately one hour.
The applicant has been successful in respect of the original application for a possession order and in defending the application by the respondent for a rehearing.
The applicant’s Counsels costs were $5,810.10 + $920 for the rehearing and $1,035 for disbursements.
The District Court in BC 346799 v Ikeda has said: “It is clear as a matter of law that attendances before commencement of the claim cannot be recovered, neither can post-hearing attendances, by which time the Tribunal will be functus officio, having delivered its decision, save for its residual power to make a costs order.”. 15 14 Respondents’ submission to the Tribunal, 10 February 2025 – Notice of False – Misleading Application. 15 BC 346799 v Ikeda [2020] NZDC 3669 at [19].
In that case the Court found the Adjudicator erred by taking into account all of the invoices submitted when a considerable number of attendances claimed for were not undertaken in respect of the proceeding and related to mediation, disbursements and enquiries.
Therefore, as best as I can assess from the invoices provided, the relevant costs relate to attendances from 19 December 2024. I calculate Counsels actual cost based on attendances from this date as $3,811.10.
Weighing the relevant factors, I consider that it is appropriate to award reasonable costs against the respondent of $2,500.00.
As the applicant has been wholly successful with the claim, the Tribunal must reimburse the applicant the filing fee of $27. 16 Suppression
Neither party sought name suppression.

Tenancy Tribunal case 5152511 — Tenancy dispute at 36 Rika Road, Pakotai, RD 2, Whangarei 0172

At a glance

Tenancy Tribunal case 5152511 — Tenancy dispute at 36 Rika Road, Pakotai, RD 2, Whangarei 0172

At a glance

Award balance

Claims & awards

Order

Reasons

RECUSAL

REHEARING

COSTS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

RECUSAL

REHEARING

COSTS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions