What was the outcome of Tenancy Tribunal case 4333449?

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

How much money was awarded in case 4333449?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4333449?

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

Where can I read the official tribunal order for case 4333449?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9958483-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4333449?

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

How much money was awarded in case 4333449?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4333449?

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

Where can I read the official tribunal order for case 4333449?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9958483-Tribunal_Order.pdf.

Multiple Tenancies Tenancy Tribunal Case 4333449 — Healthy homes

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Reasons

Both parties attended the rehearing consideration hearing heard by me on the 13 February 2024. Mr Phillips attended for the landlord and Ms Brown attended for the Chief Executive.

The parties also filed written submissions, since the hearing which I confirm that I have read and considered. 1

The landlord has filed within the prescribed time 2 , an application for rehearing of my decision of 28 September 2023. The law. 1 Hambletonian filed submissions dated 15 and 22 February 2024 and MBIE filed submissions dated 16 February 2024 2 The application for rehearing was filed on the 3 October 2023.

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 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. 3 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 3 Yogeswaran v Doubletree Properties Ltd [2021] NZDC 15704 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. 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. 4 Analysis and submissions.

The landlord has submitted numerous documents in support of the rehearing application. I confirm that I have read and considered all the submissions and evidence provided by both parties.

Some of the grounds advanced by the landlord in written submissions and at the hearing are that the Tribunal got it wrong or could not have reached the conclusions it did on the evidence available to it. Following the decisions of the higher courts noted above, those grounds are matters for appeal, not rehearing applications.

At the reconsideration hearing Mr Phillips advanced the following grounds for rehearing: 5 4 Angelo v Lehr [2022] NZHC 3033 5 These grounds were also covered in written submissions received both before and after the reconsideration hearing. a) That the four day hearing in late July 2023 proceeded in Mr Phillips absence, when the Tribunal knew that Mr Phillips wanted to attend but could not, because he could not connect to the video platforms made available. b) That the Tribunal improperly admitted evidence from Ms Sowry. c) That the Tribunal was wrong in concluding that this was a Boarding House tenancy. d) That the Tribunal was wrong in concluding that Hambletonian Limited was the landlord. e) That there is new evidence available which was not available at the hearing that shows that it was a flatmate situation. f) That the Tribunal did not take into account all of the evidence submitted by the landlord. g) The award of exemplary damages for the insulation between 2019 and 2021 is unsound, because it was not established in fact that there was a boarding house tenancy at that time. Mr Phillips says that there was a flatmate agreement with him and his flatmates over this time. h) That MBIE did not follow the procedures set out in s123D of the Residential Tenancies Act (RTA) by obtaining an order from the Tenancy Tribunal to inspect the premises pursuant to s123E, and did not give notice to the landlord, therefore the evidence it obtained at those inspections was improperly obtained and should be excluded. i) That I did not consider rent owed by Ms Pemberton when making the orders. j) That the tribunal has published the substantive decision without any notation that a rehearing application has been made, or that a stay of proceedings is in place, and that this has caused a miscarriage of justice. Determinations.

The grounds -(c) that I was wrong in concluding that this was boarding house tenancy,-(d) that I was wrong in concluding that Hambletonian was the landlord and ground –(g) that I made orders for exemplary damages without determining that there was boarding house tenancy between 2019-2021 must all fail because they are complaints that the Tribunal was merely mistaken or wrong in its findings of fact or in its application of the law. 6

I can confirm, as stated in the decision that I reviewed all the evidence and submissions from both parties before determining the matter, ground (f) fails.

Has a substantial wrong or miscarriage of justice occurred?

6 Wellington City Council v McMillan [2003] DCR 50 as above.

Was Mr Phillips denied an ability to attend the hearing?

The recorded Respondent in this matter is Hambletonian Limited, not Mr Phillips personally. Mr Phillips is the sole director of Hambletonian Limited. For much of the time this proceeding has been in front of the Tribunal Mr Phillips has been outside New Zealand. At case conferences held before the hearing, and in correspondence with the Mr Phillips, the Tribunal has encouraged Hambletonian to seek legal counsel or another representative to attend the hearings. 7

Mr Phillips has always been adamant that only he could represent the company at the hearing, because he did not have the means to appoint legal counsel, and that he had all of the knowledge and information that would form the basis of Hambletonian Limited’s defence to these proceedings.

Following a case conference held in March 2023, where Mr Phillips was present, the Tribunal set the matter down for a 5 day hearing, Mr Phillips gave the Tribunal dates when he thought he would be back in New Zealand and the Tribunal scheduled a 4 day hearing in accordance with those dates.

Mr Phillips then chose to stay in Russia rather than come back to New Zealand for the hearing. Whilst he submitted that he had no choice because of his family situation, it was nevertheless ultimately his choice not to come back to New Zealand for the hearing.

Mr Phillips advised the Tribunal, that he would not be able to attend and provisions for him to attend remotely were made. It was noted then, as it is now that this was an indulgence of the Tribunal and that Mr Phillips was advised to seek legal or alternative representation for the company at the hearing.

During June and July 2023, the Tribunal received voluminous amounts of submissions and correspondence from Mr Phillips. There appeared to be no issue with Mr Phillips being able to receive evidence and submissions filed by the Chief Executive and indeed to file witness statement, evidence and submissions on behalf of Hambletonian. Mr Phillips says that he had intermittent use of the internet, that may be so, but it did not stop him from filing evidence, submissions and corresponding with Court Registry Staff.

The Tribunal offered Mr Phillips to attend via video link. Despite offering to setting up times to ensure that Mr Philips could access and use the video link, Mr Phillips did not avail himself of those opportunities.

Mr Phillips now says that he was unable to use the video link provided because Cisco, who owns the platform had barred anyone in Russia or Russian occupied 7 There have been numerous case conferences and direction orders were the issue of Mr Phillips attending the hearing, how he can attend and alternative representation for the company have been discussed- see orders of the Tenancy Tribunal under this file number – dated 20 June 2022, 28 July 2022, 28 October 2022, 9 December 2022, 20 March 2023, 4 July 2023, 13 July 2023 and 31 July 2023. territories from using the video connection. If Mr Phillips had taken the opportunity to do connection tests, then this could have been discovered before the hearing.

Mr Phillips was given an opportunity to participate in a telephone hearing and was given a number to call, Mr Phillips says that he could not call that number, because it would have been too expensive.

Hambletonian was represented in a very limited capacity at the hearing by Mr Pool. Mr Pool was the on site manager of the property when Mr Phillips was not there, and I found him to be very knowledgeable about the property and the people who lived there. Mr Phillips wrote to the Tribunal during the hearing and advised that Mr Pool was not authorised to represent the company. Mr Pool did not attend all of the hearing, but when he was there, I allowed him to attend to speak to hear the witnesses and to provide me with any evidence that refuted or countered those witnesses evidence.

It is also clear from the correspondence that The Tribunal received from Mr Phillips over the hearing period that Mr Pool and Mr Phillips were in regular contact, and Mr Phillips was being kept appraised of what was happening in the hearing room, because Mr Phillips would comment on what witnesses had said, and points he wanted to make in reply.

At the end of the hearing, I allowed Mr Phillips to give me written evidence and submissions.

I do not consider that there has been a risk of miscarriage of justice because Mr Phillips did not attend the hearing because: a) Hambletonian was given numerous opportunities to appoint another representative of the company but did not do so. b) The Tribunal gave Mr Philips many opportunities and ways to attend and participate in the hearing. He did not avail himself of those opportunities, including the ability to test video connections before the hearing should not allow the company another opportunity to litigate this claim. It is the party’s obligation to attend a hearing. Mr Phillips knew the hearing was on, he could have attended in person, by video link or by telephone but chose not to. c) Mr Phillips made voluminous statements and submissions before the hearing, Having read those documents I was able ask each witness at the hearing questions on matters which Mr Phillips had raised in his submissions that were relevant to their evidence. d) If a rehearing was granted on this ground, it would simply allow and encourage parties not to participate in a hearing and then if dissatisfied with a decision to relitigate it.

Therefore, the ground for a rehearing on the basis that Mr Phillips did not attend the hearing fails. That the Tribunal improperly admitted evidence of Ms Sowry.

Mr Phillips says that I improperly admitted evidence of Ms Sowry. He said that I made determinations about the bond and rent that were incorrect. Again, simply disagreeing with the order is not grounds for rehearing and this ground fails.

Was there new evidence available which would give rise to a miscarriage of justice?

At the rehearing consideration hearing no new evidence was put forward by Hambletonian which I consider could not have been submitted by reasonable due diligence before the hearing, and there was no evidence put forward that would have likely changed any determination that I made. Therefore, this ground fails. That MBIE’S evidence was improperly obtained and should have been excluded.

Mr Phillips submits that MBIE did not follow the procedures set out in s123D of the Residential Tenancies Act (RTA) by obtaining an order from the Tenancy Tribunal to inspect the premises pursuant to s123E, and did not give notice to the landlord, therefore the evidence it obtained at those inspections was improperly obtained and should be excluded.

There have been two previous determinations by the Tribunal on this point.

In Chief Executive, Ministry of Business, Innovation and Employment on Behalf of [Tenant A, Tenant B, Tenant C] v Geyserland Limited [2022] NZTT [Rotorua] 4273958, 4373982, 4273973,4310871, 4310889, 4310874, in which the Adjudicator stated: It is clear that ss 123D and 123E are designed for use where an order is necessary to gain entry for the purpose of inspecting the premises, or to implement a programme of inspections. However, the power to apply to the Tribunal does not affect any other right of entry available to MBIE. Therefore, if the lawful occupant of the premises is willing to allow MBIE to enter and inspect the premises without an order, this is entirely permissible. In each case, the tenant voluntarily invited MBIE to enter and view the state of their unit. Tenants are entitled to quiet enjoyment of the premises during the tenancy (s 38(1) RTA) and they do not need the landlord’s consent for a non- invasive inspection of the premises. If this were not the case, and if MBIE was always required to obtain a Tribunal order before inspecting premises, this would hinder its role in monitoring compliance with the Act and investigating complaints.

The Deputy Principal Adjudicator Mr Woodhouse upheld and followed that reasoning and conclusions in a decision Chief Executive, Ministry of Business and Innovation and Employment on behalf of [Tenants] v Shirley Ann Sharp 12 August 2022, NZTT 4303654,4303795, 4303799 and 4303820.

Mr Phillips says in his submissions of 22 February 2024. There is no Higher Court decision presented to support Ms M Brown’s views about her clarification of S 123 D, ss 13. Nor do the facts of this case support her views, Nor can the intent of Parliament possibly support her views. Nor would the Bill of Rights Act 1990 under any fair examination support her views.

Mr Phillips goes on to submit more fully on each of those points. Mr Phillips is quite correct that the determinations by my fellow adjudicators have not been tested in the higher courts and that I am free to make my own determination on that point.

I agree entirely with the reasoning and determinations of my fellow adjudicators in the above decisions.

As the tenants at Mangatawhiri invited in MBIE inspectors pursuant to s123D (13) then there was no requirement for MBIE to give notice to Hambletonian before carrying out inspections of the property, and therefore all evidence obtained as a result of those lawful visits is admissible. That I did not take into account rent owed by Ms Pemberton when making the assessments.

It is not disputed that Ms Pemberton owes rent. She confirmed that at the hearing. However, Mr Philips says that I should deducted any rent owed by her to any award made in her favour.

Hambletonian did not file a cross application for rent. I am not able to make orders to deduct rent owed unless Ms Pemberton agrees to the ‘amount’ of rent owed.

At the rehearing consideration hearing Ms Brown agreed to make enquires if Ms Pemberton accepted the amount of rent owed. If so, those amounts will be deducted by agreement.

As Hambletonian Limited has not filed a cross application for rent owing, this there was no failure in procedure to deduct rent owing and this ground for rehearing fails. That the substantive decision has been published before the outcome of this rehearing.

Mr Phillips says that the publication of the decision has caused the company and himself considerable distress. He says that the publication before the rehearing application or without some notation that the proceedings had been stayed pending the rehearing application being determined is a miscarriage of justice.

The starting point is that the RTA provides that all hearings and the decisions are to be made public, subject to any suppression orders. This allows for open justice.

It is in the public’s interest to know the determinations in claims taken by the Chief Executive against landlords. The application for a rehearing does not nullify the decision made, and if Mr Phillips was asked about the decision by the media he can advise them that it is the subject of a rehearing. Therefore, there is no likelihood of a miscarriage of justice. Conclusion.

I have determined that none of the grounds submitted by Hambletonian Limited are likely to give rise to a miscarriage of justice and therefore the application for rehearing fails.

The decision dated 28 September 2023 stands.