What was the outcome of Tenancy Tribunal case 4393770?

The tribunal order states: No suppression orders apply to this order.

How much money was awarded in case 4393770?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4393770?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4393770?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9339675-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4393770?

The tribunal order states: No suppression orders apply to this order.

How much money was awarded in case 4393770?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4393770?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4393770?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9339675-Tribunal_Order.pdf.

19 A Raleigh Road, Northcote, Auckland 0627 Tenancy Tribunal Case 4393770 — Healthy homes

Order

No suppression orders apply to this order.
Jacobus Engelbrecht is removed as an applicant, meaning the sole applicant is now Laura Jane Surrich.
The application for rehearing is dismissed.

Reasons

The Tribunal has received an application for a rehearing, filed by one of the tenants. The Tribunal must determine whether a rehearing will be granted. There is also an application from co-tenant Mr Engelbrecht to withdraw as an applicant. Background
The background is now quite involved in this case, but for the purpose of this rehearing application request, can be summarised as follows: a. There was a tenancy in place between landlords Mr and Mrs Li, and tenants Mr Engelbrecht and Ms Surrich. The landlords agent is Barfoot and Thompson Limited. The tenancy commenced in July 2019. b. During the tenancy the tenants reported that some of their electrical equipment had ‘blown’, questioning a fault in the electrical system of the dwelling. c. The premises were inspected by an electrician and Vector the electricity supplier. A fault was found with the earth to the premises and that was fixed. But the tenants reported continuing problems. Further inspections from the landlords electrician(s) could not find any further fault. An inspection for the tenants was undertaken, which reported a fault in the insulation resistance. d. The tenancy has ended – the tenants are no longer in occupation of the dwelling, with new tenants now renting the premises. e. The tenants filed an application with the Tribunal, centring around the claimed electrical fault. f. I convened a hearing in the North Shore on 5 December 2022. As set out in my order from that date, the hearing was adjourned so that the parties could bring an electrician to the hearing to give evidence. The order states in part:
Having considered the available information, I have determined that the hearing that should be adjourned, and rescheduled to allow both parties an opportunity to have an electrician attend the hearing to give evidence. The current state of the evidence is inadequate for the Tribunal to reach any safe conclusions one way or the other. The issues are very technical, and would require an appropriately qualified expert(s) to interpret the test findings, and to explain what the fault would likely be, and how that would affect the electrical equipment in the dwelling. That level of explanation is missing.
...
Accordingly, the hearing is adjourned, Tenancy Services will be in touch with the parties in order to schedule the next hearing, and again the parties are invited to bring an electrician with them, to give evidence. g. Another hearing was scheduled for 9 May 2023, again in the North Shore. At the reconvened hearing, the landlord brought an electrician to the hearing, Mr Chen, who had assessed the premises. In short, Mr Chen advised that he could find no evidence of a fault with the electrical system, and gave evidence in relation to the report from the Tenants electrician, to the extent that his testing did not replicate the findings of the Tenants electrician, and that his conclusion around resistance was flawed. h. Having considered the evidence and submissions, I determined that the evidence of Mr Chen should be preferred, and that no fault with the electrical system had been identified which would have caused the problems described by the tenants. The tenant’s claim was dismissed. i. On 15 May 2023 the tenant’s applied for a rehearing, stating: I would like to apply for a rehearing on the basis of new evidence to be presented. We were unable to have our electrician attend due to his being out of town at the last minute. We were not made aware that his attendance was imperative and we would be disadvantaged by this. He gave his firm and contact number so the court could ask any questions and validate his statements. However his non attendance resulted in his findings being completely discounted. Had we known this we would have certainly asked for another date so we could be properly represented. This led to the claim of the Barfoot and Thompson electrician being professionally unchallenged despite contradictory reports from two independent sources. j. A telephone hearing was scheduled for 3 July 2023. Mr Englebrecht attended by telephone, but I could not reach Ms Surrich. I directed that the hearing be rescheduled to allow an opportunity for Ms Surrich to be heard. k. It is the case that Ms Surrich had requested that her mother, Ms Gini attend and represent her. l. Mr Englebrecht contacted the Tribunal and requested to be removed from the proceeding as an applicant. m. A telephone hearing was convened today on 25 August 2023 to again consider the rehearing request. Ms Gini was in attendance. Submissions for the landlord were presented by Ms Tizzard with Mr Chiu also attending.

SUBMISSIONS FOR THE PARTIES

Ms Gini submitted that a rehearing should be granted. It was submitted that the Tenant’s electrician was out of Auckland at the time of the May 2023 hearing, so a written statement was relied upon, but that was not adequately considered. Ms Gini states that they did not realise how important it would have been to have had an electrician attend the hearing, so they are seeking to have another hearing so the electrician can attend to give evidence.
Ms Gini states that there is a significant precedent in place given the safety implications with what could be a serious electrical fault in the premises.
Ms Gini submits that the switch board should be taken off so the wiring can be properly inspected.
The landlord was not supportive of the rehearing being granted. In response the landlord submitted that at the December 2022 hearing the parties had been advised that they would need to get their electrician attend the hearing. If the tenant’s electrician could not attend, then they should have arranged for another electrician to attend in his place.
The landlord notes that a rehearing is not an opportunity for a disappointed party to have a further chance to present additional evidence.
The landlord notes that four electricians have inspected the premises, and none of them have reached the conclusions that the tenant’s electrician has. Further the landlord notes that the current tenants have been in the premises for about a year, and have not reported any problems.
In conclusion Ms Gini submitted that while some work had been undertaken at the premises, the fault had not been fixed, and any testing was superficial. Ms Gini maintained that the conclusion of her electrician should be accepted.

RELEVANT LEGAL CONSIDERATIONS

Section 105 of the Residential Tenancies Act 1986 relates to rehearing’s. 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 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.
The availability of new evidence may not justify a rehearing if that evidence was available and could have been obtained for the original hearing, even if it is better evidence than that given at the original hearing. In Mason v May [1995] NZTT 1328/95, the Tribunal said that, before a rehearing will be granted on the grounds of new evidence, “an applicant has to show that reasonable diligence was used to produce all relevant evidence at the hearing, and there must be an explanation as to why the new evidence only came to light after the hearing”.
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 must decide if a rehearing will be granted. I can only order a rehearing if I conclude that a substantial wrong or miscarriage of justice has or could have arisen.
The crux of the tenant’s case for a rehearing, is that another hearing should be scheduled to allow their electrician to attend to give evidence. The tenant did not realise the importance the electrician’s evidence would have had.
I have considered those submissions, but I cannot see there is any potential for a substantial wrong or miscarriage of justice. It was clear from my December 2022 order that the matter to be adjudicated would turn on the technical evidence, that is the evidence from the electricians. It is because of that that the hearing was adjourned, and I specifically recorded in the December order that the parties could bring their electrician’s to the hearing, so I could hear evidence from them.
Only the landlord attended with an electrician. Mr Chen’s evidence was compelling, and it was accepted.
I consider the tenants could have brought an electrician to the hearing if they had wished to do so. Their opportunity to bring an expert was no less than the landlords. In fact the tenants could have applied for a summons to get their electrician to the hearing if they had wished.
The tenants say that they did not realise the importance that the in person evidence would have had. In my view the order from December did flag to the parties the importance of the expert evidence, and it would have been plain from that order the importance of evidence needing to be given at the following hearing.
Unfortunately for the tenant, I cannot order a rehearing simply to allow the tenant another opportunity to attend and present better evidence to support their case.
Given I cannot see any potential of a substantial wrong or miscarriage of justice, the application for rehearing must be dismissed.
Mr Engelbrecht’s application to be removed as an applicant is granted.

Tenancy Tribunal case 4393770 — Healthy homes at 19 A Raleigh Road, Northcote, Auckland 0627

At a glance

Tenancy Tribunal case 4393770 — Healthy homes at 19 A Raleigh Road, Northcote, Auckland 0627

At a glance

Claims & awards

Order

Reasons

SUBMISSIONS FOR THE PARTIES

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

SUBMISSIONS FOR THE PARTIES

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions