What was Tenancy Tribunal case 4290303 about?

The tribunal order states: The tenant’s application for rehearing is dismissed.

How much money was awarded in case 4290303?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4290303?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4290303?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10542048-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4290303 about?

The tribunal order states: The tenant’s application for rehearing is dismissed.

How much money was awarded in case 4290303?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4290303?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4290303?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10542048-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4290303 — Rent arrears

Order

The tenant’s application for rehearing is dismissed.

Reasons

Both parties attended the hearing on 2 July 2024.
A brief procedural history of this matter is set out below: • On 14 December 2020 the landlords served a notice to remedy rent arrears. • On 8 January 2021 the landlords applied for termination of the tenancy for rent arrears. On 21 January 2021 and 21 February 2021, the landlords applied to the Tribunal for termination for abandonment. • The tenant left New Zealand on 21 January 2021 and was overseas until 10 November 2023, when she returned to New Zealand. • On 29 January 2021, Tenancy Services wrote to the landlord informing them that their expedited abandonment application was contested: “The tenant believes the property has not been abandoned as she gave Notice to Vacate”. • On 15 March 2021 the Tribunal terminated the tenancy for abandonment and awarded rent arrears (less the bond) of $8,097.60 to 13 February 2021. The tenant did not attend the hearing. • On 8 May 2021 the Tribunal made an award of compensation and exemplary damages in favour of the landlord in the sum of $5,461.39. The tenant did not attend the hearing. • The tenant filed a notice of appeal with the District Court on 13 June 2021 in respect of both Tribunal orders. • The appeal was dismissed on 11 October 2021 on the grounds that the appeal had been filed out of time. • An attachment order was issued on 4 March 2022 for $13,558.99 plus the filing fee. • On 23 January 2024, the tenant applied for a rehearing of the Tribunal proceedings. The tenant said she was not in New Zealand when the matter was originally heard and her version of events differed significantly from that of the landlords. Relevant law
Section 105(1) of the Residential Tenancies Act 1986 (the Act) provides that the Tribunal has the power to order a rehearing of the whole or any part of a proceeding where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
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, and 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 – “something more than a mere wrong decision must be shown”, see Wellington City Council v McMillan (DC Wellington, 7 June 2002, MA 70/02 & TT 97/02, Judge Tuohy) at paragraph 19.
The District Court has confirmed that a rehearing will not be granted just because a party is unhappy with the decision, or because the applicant has a “desire to take issue with, or express a contrary view on the evidence to that reached by the Tribunal...” (Xpert Management Solutions Limited v Bravo [2015] NZDC 1506).

Has a substantial wrong or miscarriage of justice occurred?

A striking feature of the application for rehearing is that it was filed more than 2 years after the tenant’s appeal to the District Court was dismissed, and nearly 3 years after the termination of the tenancy. In the application to extend time, the tenant said she was not in the country, had not been heard, and her version of events was very different.
The tenant knew about the Tribunal proceedings at the time. The tenant was notified of the application for termination by Tenancy Services on 8 January 2021. She acknowledged this in a text message to the landlord. The hearing notice for the application was served on the tenant by email, post, and text on 12 January 2021, when she was still in the country. This related to a hearing on 4 March 2021 (later rescheduled to a later date in March).
It is unclear whether there was a hearing before the District Court in the appeal. The Judge noted that the Notice of Appeal did not specify which Tribunal decisions were being appealed. To bring the appeal, the tenant must have understood that orders had been made by the Tribunal which she wanted to challenge. It is evident from the tenant’s evidence that she was also aware an attachment order had been made, although it is unclear when this came to her attention.
When asked at the hearing why she did not apply for a rehearing when the appeal was dismissed, the tenant said she did not know what to do, she had not been through the process before, she completed what she could and submitted the appeal. When she was contacted by a debt collection company engaged by the landlord (the landlord said they asked this company to issue a credit default against the tenant on 18 January 2024) they told her she could apply for a rehearing.
I am unable to accept the tenant’s reasons for not filing a rehearing application much earlier. Every order issued by the Tribunal contains a summary of a party’s right to appeal and/or apply for a rehearing, and the timeframes for doing so, together with a link to the rehearing application form. An application for rehearing must be filed within 5 working days, or “such further time as the Tribunal may allow” (section 105(2) of the Act). Given that the Tribunal is mandated to exercise its jurisdiction in a manner most likely to ensure the “fair and expeditious” resolution of disputes, exercise of the Tribunal’s power to extend time for rehearing applications will usually involve an extension of days or weeks, not months or years.
It is difficult to believe the tenant knew how to appeal but did not know how to apply for a rehearing. For some reason, the dismissal of the appeal and the issue of an attachment order did not inspire her to revisit the Tribunal’s orders. Indeed, the tenant at one point in the hearing seemed to suggest she was willing to accept this outcome, until she spoke to the debt collector.
The tenant knew about and had an opportunity to engage with the Tribunal process and could have arranged to attend by telephone. She knew Tribunal orders had been made and enforcement steps taken. The lengthy delay in applying for a rehearing has not been satisfactorily explained. There are some grounds to believe the tenant did not intend to further challenge the Tribunal’s orders until she returned to New Zealand and was pursued by the landlords for payment. In the circumstances, I consider there has been no miscarriage of justice.
I also note the emails on file purporting to be from the tenant’s father, stating that she had died. These emails were sent while the tenant was overseas. The tenant said her father took it upon himself to send the emails (which are from the tenant’s personal email account) because she was stressed. If they were authorised by the tenant the emails only add to the impression that, until her return to this country, the tenant’s strategy was to avoid the judgment debt rather than challenge it.
These findings alone are sufficient to dismiss the rehearing application. I have also considered the merits of the case the tenant wishes to advance at a rehearing. The tenant’s position largely lacks specifics, and the Tribunal is not strictly required to consider the merits of a proposed defence when determining an application for rehearing. But in an appropriate case, a long period of delay might be counterbalanced by strong merits.
The tenant said she did not abandon the property but left because she was given notice in December 2020. This can be contrasted with what was said by Tenancy Services on 29 January 2021. In text messages with the landlord the tenant said she was given 3 weeks to move out, so she did. The emails between the parties in December 2020 and January 2021 do not reveal a demand from the landlords for the tenant to move out – rather, they give the impression the landlords were taken by surprise when the tenant moved overseas. In January and February 2021, the landlords told the tenant they had applied to the Tribunal and sought to find an agreed basis to end the tenancy. The only written notice given in December 2020 was a notice to remedy rent arrears dated 14 December 2020. The landlords denied giving a verbal notice. I am not satisfied that the Tribunal was wrong to find that the tenant abandoned the premises.
The tenant denied that her horse had damaged the garage door and fence. There are communications between the landlord and the tenant on 17 January 2021, discussing the landlords taking measurements to fix the garage door and fence damaged by the tenant’s horse. The landlords said they would get a quote for the garage door and the tenant requested that they get a good price, noting that she knew someone who could fix the door for free. The landlord replied that the tenant had told them 1½ years ago that it would be fixed for free. These text messages give no sense that the tenant disputed liability for damage caused by the horse she owned. In a text message on 29 January 2021, the tenant said she took full responsibility for the garage door and fence damage.
As to rubbish removal and cleaning, the tenant said she had arranged for her belongings to be removed by her friends and had left the property in immaculate condition. The tenant said she had belongings worth $100,000.00 which she had arranged to have removed, but which the landlord threw away. The landlords said that a second-hand shop removed all the belongings thought to have saleable value, such as furniture and appliances, as arranged by the tenant. They noted that the Tribunal had authorised them to dispose of items with no saleable value, and they waited until after the 8 May 2021 order before doing so. The landlords said what was left behind was broken furniture, including a piano with broken keys, and rubbish. The photographs provided by the landlord support this view. The tenant left New Zealand and did not return for over 2 years, so it would be unreasonable to expect the landlords to store the remaining belongings. I am not satisfied that the order of 8 May 2024 wrongly included an award for rubbish removal, or that the landlords were not entitled to dispose of the tenant’s goods in the way that they did.
The tenant disputed that any chattels were missing, as claimed by the landlords. However, as noted in the order of 8 May 2021, some of the chattels were listed in the tenancy agreement and were photographed at the start of the tenancy. In messages in January 2021, the tenant said she had sold her car and furniture to pay the arrears, and that the “furniture is mine to take”. This could potentially explain the missing furniture. I am not persuaded that the Tribunal was wrong to award the cost of replacement chattels.
For these reasons, the tenant has failed to establish grounds for a rehearing.

Tenancy Tribunal case 4290303 — Rent arrears

At a glance

Tenancy Tribunal case 4290303 — Rent arrears

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