Published tribunal order
Tenancy Tribunal case 4293277 — Tenancy dispute
Decided 10 Oct 2025 · Published 10 Oct 2025 · Application 4293277
Party names are redacted in the official published order.
Order
- The Tribunal orders continued name suppression to apply for both parties.
- The application for rehearing is dismissed.
BACKGROUND
- The background in this case is very extensive, but for context I summarise it as follows: a. The landlord gave notice ending the tenancy. b. The Tenant filed an application against the landlord on 22 February 2021, that is application 4293277. The claim was for $100,000 and various other orders, including to have the termination notice set aside. c. On 12 January 2022 the landlord also filed an application against the tenant. That is application 4325875. d. On 10 October 2022 the Tribunal (Adjudicator Harris) issued a decision in relation to the above claims. e. Also on 10 October 2022 the tenant applied for a rehearing of Adjudicator Harris order. f. On 21 December 2022, Adjudicator Harris approved the rehearing, but only in relation to the landlord’s claim that the tenant exceeded the maximum permitted tenants. g. A different adjudicator was appointed to hear the rehearing on the occupancy claim. On 21 June 2023 Adjudicator Northwood issued a decision. h. On 27 June 2023 the landlord applied for a rehearing. i. On 9 August 2023 the landlord’s rehearing application was dismissed. j. On 18 October 2023 [the tenant’s representative] (the tenant’s legal representative) applied for costs of $350.00. k. On 21 June 2024 Adjudicator Northwood issued a decision approving costs of $350.00, believing that submissions for the landlord had not been filed. l. On 4 July 2024 Adjudicator Northwood recalled the 21 June 2024 order, noting that she had overlooked the fact of an extension having been granted for the landlord’s submissions. m. The tenant did not wish to have an in-person hearing, so the Tribunal issued directions for the costs submissions to be determined on the papers. n. On 19 March 2025 the Tribunal issued a decision (Adjudicators Northwood and Woodhouse), ordering the landlord to pay costs of $350.00. o. The tenant contacted the Tribunal advising that she was intending to file a rehearing, but was seeking further information before doing so. p. On 25 May 2025 the tenant filed a further application for rehearing in relation to the 19 March 2025 order on the following basis: I was waiting for copies of documents to arrive from correspondence. I have further documentation that was not considered as [the property management company] and [redacted] misled the court. Refer to your No. 25 in your rulings. I did supply said documentation that had also been forwarded onto remote tenancy. So somehow I don't think the adjudicators every received this and have made a ruling on information that was misleading and incorrect by [the property management company] and [redacted]. Please refer to attachments on this email send through. This is a late application as I had to wait for copies of the documents to be sent through from correspondence.. q. The Tribunal had scheduled a hearing to consider the rehearing request, but the tenant requested that this be heard on the papers, which the Tribunal agreed to. Timetabling was set for the parties to file submissions in writing. r. On 17 June 2025 the tenant filed her submissions regarding the rehearing request. Submissions were not filed from the landlord. TENANT’S POSITION
- The Tenant presented extensive submissions, which I summarise as follows: a. The tenant only obtained legal representation because of the actions of the landlord. b. The tenant was successful so she should not be disadvantaged with legal costs. c. The information provided by the landlord was misleading. d. The tenant's evidence has not been received or considered. e. Not all legal fees have been considered or ordered. f. Legal representation should not have been allowed for the landlord as the claim was under $6,000.00.
RELEVANT LAW
- Section 105 of the Residential Tenancies Act 1986 (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.
- 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 e.g. 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 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 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.
ANALYSIS
- I have set out the relevant law that applies to rehearings above. In short, re- hearings are a safety measure should something have gone wrong with the hearing, normally on a procedural basis, in which case a rehearing can be approved so that the matter then returns to the Tribunal for a further hearing.
- However, the first matter I must consider is whether the application for rehearing should be accepted as it was filed late.
- Section 105(2) of the RTA requires that any application for rehearing be filed within 5 working days of the decision. In this case the rehearing application was filed around two months following the decision, so is well out of time. The RTA requires that the Tribunal adopt an approach to expeditiously resolve disputes between tenants and landlords. Accepting a rehearing application so late would not be consistent with that statutory expectation. That is particularly taking into consideration what has become an unusually long course for these applications.
- While section 105(2) provides a discretion for the Tribunal to accept an out-of- time rehearing application, I find that a discretion should not be extended in this case.
- While the Tenant has advised the Tribunal she was intending to apply for a rehearing, that is not enough. The tenant could have filed her rehearing application on time while she was mustering her documentation. I do not consider accepting what is a markedly late application would be consistent with the requirement to deliver an expeditious dispute resolution process. Putting those reasons to one side, I also do not consider there is merit to the rehearing request for the reasons I will discuss below.
- The result is that the application for rehearing is dismissed as out of time.
- However, even if I were wrong in not accepting the late application, it would have dismissed it for the following reasons.
- Firstly, the decision from 19 March 2025 was issued specifically in relation to the level of costs that should be ordered. Both parties had a very fulsome opportunity to present submissions and evidence in relation to that matter
- Secondly, I do not accept that there was evidence filed that the Tribunal did not consider. The Tribunal considered all of the material presented. Just because it is not referred to in a written decision does not mean it is not considered.
- Thirdly, I do not accept that any of the ‘new’ material the tenant is now wanting the Tribunal to consider, is evidence that the Tenant could not have produced for the earlier hearing with due diligence (see the approach confirmed by the Court of Appeal in Jemma Trust set out above).
- Fourthly, what the tenant is now seeking to do, is to relitigate matters where she considers the Tribunal got it wrong in relation to its decision on the costs order. A rehearing cannot be used for that purpose. If the Tenant thought the Tribunal’s assessment of the evidence and law was wrong, she needed to appeal that decision to the District Court. Similarly, if the tenant considered the landlord had provided misleading evidence, she could have addressed that at the time earlier hearing, or at appeal.
- Fifthly, the Tribunal has considered the tenant’s arguments and opposition to the landlord having been legally represented, and that was addressed in the 19 March 2025 order. Again that would be a matter for appeal, not rehearing.
- For the above reasons, even if the Tribunal accepted the late rehearing request, there would have been no grounds to approve the rehearing application.