What was Tenancy Tribunal case 4332838 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4332838?

The reconciled net award was $250.00.

What type of tenancy dispute was case 4332838?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4332838?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8021884-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4332838 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4332838?

The reconciled net award was $250.00.

What type of tenancy dispute was case 4332838?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4332838?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8021884-Tribunal_Order_Redacted.pdf.

6 Latham Avenue, Pakuranga, Auckland 2010 Tenancy Tribunal Case 4332838 — Exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The applications for rehearing are dismissed.

Reasons

Both parties attended the hearing.
On 15 May 2022 the Tribunal made orders: a. Directing the landlord to immediately search for the tenant’s artwork (being a large artwork on folding panels) and if located to deliver the artwork to the tenant’s workplace between the hours of 9am and 4pm, Monday to Friday no later than 4pm on 27 May 2022; and b. Directing the landlord to pay the sum of $2,608.44 to the tenant, made up as follows: Description Compensation: loss of amenity (rent for three days) Compensation: monies paid to collect belongings Refund of balance of bond LandlordTenant $150.00 $160.00 $328.00 Exemplary damages: Failure to provide tenancy agreement in writing Exemplary damages: Failure to lodge bond Exemplary damages: Failure to keep rent Records Exemplary damages: Failure to provide rent receipts Exemplary damages: Changing locks Filing fee Total award Total payable by Landlord to Tenant $250.00 $500.00 $100.00 $100.00 $1000.00 $20.44 $2,608.44 $2,608.44
On 24 May 2022, the tenant applied for a rehearing on the grounds that the use of the words “if located” in the order referred to in paragraph 2b. above gave the landlord the opportunity to decide not to return the artwork, and on the basis that they were entitled to exemplary damages for the seizure of the artwork.
On 2 June 2022, the landlord applied for a rehearing on the grounds that: a. The tenant was in fact a boarder and not a tenant, with the effect that the Tribunal did not have jurisdiction to make orders; and b. They did not have access to all of the documents that the tenant had filed in support of their claim as they do not have a computer, they were not given a copy of the police report uploaded by the tenant, were not treated fairly during the hearing and that they did not receive a copy of the order following the hearing by post as requested.
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”.
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. 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.
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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons both the tenant and the landlords have failed to establish the grounds for a rehearing. The tenant’s application
The landlords did not deliver the artwork to the tenant’s workplace in accordance with the order dated 15 May 2022 but the landlords say that the reason for this is that there was a delay in them receiving the order. I was pleased to hear that despite the delay the parties had subsequently arranged for the tenant to collect the artwork and that the collection had taken place. No further orders are required in this regard.
Despite the return of her artwork the tenant confirmed that she still seeks exemplary damages for the seizure of her artwork.
At the hearing the tenant referred me to various text messages between herself and the landlords. In these messages the landlord repeatedly claimed that they had not yet looked for the artwork. I was therefore not satisfied, on the balance of probabilities, that the landlord had in fact seized the artwork. The tenant has not been able to refer me to any new correspondence that was not available at the first hearing that might have affected the outcome.
The tenant has the onus of proving that a substantial wrong or miscarriage of justice may have occurred. I am not satisfied that they have done so and accordingly the tenant’s application for a rehearing is dismissed. The landlord’s application
Copy of order not received by post: The landlords were concerned that they had not received a copy of the order by post and so were unaware that they needed to deliver the tenant’s artwork to her work place and did not have time to file this rehearing. Both of those matters have already been dealt with. The tenant now has her artwork. The landlord’s application for rehearing was accepted on the basis that they did not receive the original orders and the hearing has now taken place to determine whether there should be a rehearing.
Lack of access to documents and unfair treatment: The landlords were concerned that the did not have access to the documents filed by the tenant, (and in particular the police report), and so were treated unfairly at the hearing. The landlords said that they do not have access to a computer and so were unable to access the documents online and do not think it is reasonable for them to have to access the documents using a friend’s computer or at the library. I note that a copies are also available at the Court on request.
I have reviewed the online file and note that the documents in support of the tenant’s claim were all uploaded on or before 6 May 2022, well in advance of the hearing. As a party to proceedings in the Tribunal there is an expectation that the parties will prepare for the hearing and will take appropriate steps to do so.
In any event there were very few documents of relevance filed in the Tribunal, with the text messages between the landlords and the tenant being the primary documents considered, the content of which the landlords were well aware and did not dispute.
The landlords complained at the original hearing that they were being denied access to the police report for the purposes of a complaint regarding police conduct. That is not a matter for the Tribunal and I simply noted that there was in fact a copy on the Tribunal file to which the landlords had access. The police report was not in fact relevant to the determination of matters in the Tribunal. Both parties had agreed that the police attended to assist the tenant to retrieve her belongings (the landlord having changed the lock to the outdoor security door) and described the events from their own perspective. I did not consider the police report and made no findings based on its contents.
The tenant was in fact a boarder: The original hearing had proceeded on the basis that the relationship between the parties was one of landlord and tenant. The landlords lived upstairs and in their own locked premises while the tenant lived downstairs in her own locked premises including a bedroom, lounge, kitchen and bathroom. There was an external security door that had to be opened before accessing either the tenant’s premises downstairs or the landlord’s premises upstairs.
The premises were described by the parties in detail and there was no dispute at the original hearing as to the arrangement. The landlords had in fact filed their own claim in the Tribunal seeking compensation from the tenant. In their application for a rehearing the landlords claimed for the first time that the tenant was in fact a boarder.
A recent decision of the High Court, Clare Dina Harding v Monica Schellevis & Ors [2021] NZHC 1265 determined that, a) The natural and ordinary meaning of ‘premises’ contemplates that there could be more than one ‘premises’ within a larger premise. b) Residential premises can include part of any premises used or intended for occupation as a place of residence. c) “...the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions.” d) The tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”
There was no question at the original hearing that the premises occupied by the tenant were anything other than a residential tenancy and intended for occupation as a place of residence. There were two distinct household units. The tenant’s premises was self-contained. The tenant’s right to occupy did not extend to the private area of the landlords’ premises. There were no communal living spaces and only the laundry was shared.
In support of their application for a rehearing the landlords produced a photograph of the entrance to the tenant’s tenancy, from inside the external security door. They explained that there are two doors, both with locks, one being the tenant’s bedroom door and the other door being the door to the tenant’s lounge and kitchen. They explained to me that the landlord’s separate premises were upstairs behind a separate locked door.
I consider that the photograph is entirely consistent with the description that both parties gave of the premises at the first hearing. The photograph shows that the tenant had separate premises. It is immaterial that the bedroom was behind one locked door and the lounge and kitchen behind a separate locked door. Both areas formed the tenant’s premises (together with the bathroom and laundry).
I note further that at the hearing the landlords claimed for the first time that the reason the lock on the security door was changed was not to prevent access to the tenant but because of quite separate security concerns as the mechanism had failed the previous night. I am not satisfied that this is new evidence as it could have easily been provided at the original hearing. It is also inconsistent with the landlord’s explanation for changing the lock given at the original hearing.
The landlords have the onus of proving that a substantial wrong or miscarriage of justice may have occurred. I am not satisfied that they have done so and accordingly the landlords’ application for a rehearing is dismissed.

Tenancy Tribunal case 4332838 — Exemplary damages at 6 Latham Avenue, Pakuranga, Auckland 2010

At a glance

Tenancy Tribunal case 4332838 — Exemplary damages at 6 Latham Avenue, Pakuranga, Auckland 2010

At a glance

Award balance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions