What was the outcome of Tenancy Tribunal case 4421380?

The tribunal order states: The Tribunal declines suppression orders. No suppression orders apply to

How much money was awarded in case 4421380?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4421380?

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

Where can I read the official tribunal order for case 4421380?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9484337-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4421380?

The tribunal order states: The Tribunal declines suppression orders. No suppression orders apply to

How much money was awarded in case 4421380?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4421380?

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

Where can I read the official tribunal order for case 4421380?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9484337-Tenancy_Tribunal_Order.pdf.

85 Forkert Road, Ōhaupō, 3882 Tenancy Tribunal Case 4421380 — Rent arrears

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Reasons

Mike Macdonald (tenant), and Ross Gardiner and Mark Gardiner (for the landlord), attended a telephone hearing of the tenant’s rehearing application on 3 October 2023.

On 17 July 2023, the Tribunal made orders:- (1) terminating the tenancy and granting possession of the tenancy premises to the landlord at 12 noon on Monday 31 July 2023, and (2) that the tenant must pay the landlord the net amount of $2,293.91 (consisting of rent arrears less compensation and exemplary damages payable to the tenant).

Mike Macdonald applied for a rehearing on 28 July 2023 and attached an email (dated 24 July 2023) which set out eleven grounds or reasons.

Mike Macdonald further emailed the Tribunal on 3 and 4 August 2023 setting out a total of 22 grounds for his rehearing application.

He confirmed in the 3 October 2023 hearing that these were the 22 grounds he wished to address.

On 5 October 2023 (after the hearing), Mike Macdonald emailed the Tribunal to request that a 23 rd ground for a rehearing be considered. The Tribunal replied to both parties to remind them that new submissions or evidence cannot be accepted after a final hearing. That said, the 23 rd ground has been addressed in this decision so that all issues are dealt with. The criteria for a rehearing

Section 105(1) Residential Tenancies Act 1986 (RTA) 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 the strength of the language used in s105 RTA means that there must be more than a wrong decision. A rehearing will not be granted because a party is unhappy with the outcome, or to give them a second opportunity to present their case. See Wellington City Council v McMillan [2003] DCR 50.

A party who thinks that the Tribunal is wrong in its findings of fact or in its application of the law has a right of appeal. A notice of appeal must be filed within 10 working days after the date of the decision to which the appeal relates; see s117 RTA.

Usually, the party applying for a 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 that could have affected the outcome.

Has a substantial wrong or miscarriage of justice occurred?

I now set out my decisions on each of the 23 grounds raised by Mike Macdonald: (1) That a stay of proceeding should have been granted before eviction date: The tenant’s application for a stay of the Tribunal order (made with his rehearing application) was referred to the Deputy Principal Adjudicator (Mr Woodhouse) for consideration because Ms Maplesden was unavailable. The tenant did not request urgency or refer to the termination order or to the date this was to take effect. It was simply a matter of timing that by the time the stay was granted, the termination date had passed, and the tenant had vacated the premises and returned possession to the landlord. (2) The tenant disagrees with some of the decisions at paragraph 61 of the order of 17 July 2023: this is a ground for an appeal, not for rehearing. (3) That the landlord should pay the tenant for power used after the last meter reading until the end of the tenancy: The decision of 17 July 2023 specified the amount the landlord owed the tenant for power/electricity up to the last meter reading on 27 April 2023. The parties are responsible for calculating the landlord’s contribution after that date. Paragraph 81 of the decision gives guidance. This says: The landlord is liable to pay the daily line charges from 28 April 2023 until the end of the tenancy (currently 60 cents per day) and the additional units measured on the check meter since the last reading of 1985 at the uncontrolled unit rate (currently 23.10 cents). The landlord or tenant should take a reading from the check meter (and photograph this) as part of the end of tenancy inspection process. (4) The tenant disagrees with the decision: this is a ground for an appeal, not for rehearing. (5) The tenant disagrees with the decision: this is a ground for an appeal, not for rehearing. (6) The tenant disagrees with the decision: this is a ground for an appeal, not for rehearing. (7) The tenant disagrees with the decision: this is a ground for an appeal, not for rehearing. (8) The tenant disagrees with the decision: this is a ground for an appeal, not for rehearing. (9) That a certain person should have been present for the landlord at every hearing: Each party may choose how to present its evidence. The landlord (which is a company) is not required to make a particular person available as a witness or representative. The tenant did not seek to summons the person he refers to. The Adjudicator assesses the evidence that is put forward. (10)As stated above, the landlord company is free to choose its representatives and witnesses. Mike Macdonald was required to provide a medical certificate to support adjournment requests because he was the sole tenant. (11)The tenant disagrees with the decision: this is a ground for an appeal, not for rehearing. (12)The tenant disagrees with the decision: this is a ground for an appeal, not for rehearing. (13) The landlord’s agreement that the tenant could use part of one bay of the 3-bay shed was acknowledged in the decision. (14)The landlord’s evidence shows that the landlord has provided the tenant with a compliant tenancy agreement in accordance with the decision dated 9 December 2022. (15)That serious health concerns affected the tenant’s ability to prepare and represent himself and that the Adjudicator did not take proper notice of medical documents provided: The medical evidence supplied to the Tribunal by the tenant did not show an immediate health condition (this documented two visits to a hospital emergency department in mid-January 2023 and a referral to a specialist). In the absence of this, it was not reasonable to grant a 3-to-4-month adjournment as requested by the tenant. The landlord’s application was for termination of the tenancy due to rent arrears and the tenant had made cross-applications. The hearing of all applications required three hearings over 6 months, so further delays were undesirable. The tenant has submitted documentary evidence and appeared confident and able to represent his views during all hearings. (16)See paragraph 15, above. (17)The rehearing hearing should be before the eviction date: The date of a hearing is dependent on available Tribunal time. A stay of proceedings was granted pending this hearing however the tenant had already vacated the premises. See paragraph 1, above, as to the timing of the granting of the stay of the termination order. (18)That the tenant still has belongings stored in the shed and outside room at the tenancy address: This does not appear to be a ground or request for a rehearing. I note that an arrangement agreed to between parties does not require Tribunal intervention. (19)The tenant disagrees with the amount of compensation and/or exemplary damages awarded in the decision: this is a ground for an appeal, not for rehearing. (20) That the tenant’s name should not be published as he did nothing wrong: A party may appeal any part of a decision including a decision on the suppression of names. The tenant has not done so. The suppression decision was that the public interest outweighed the parties’ interests because both landlord and tenant breached the Residential Tenancies Act 1986. See s95A RTA. (21)That the Adjudicator and the Registrar have communicated with the landlord outside of hearings, disclosed confidential information and assisted them to prepare and guide them through hearings: Mike Macdonald has not provided any examples or specific details in support of this contention. The Adjudicator has had no contact with parties except in scheduled hearings or through the Registrar by way of formal directions that are sent to both parties. The Registrars of the Tribunal do communicate with all parties outside of hearings as this is their role. Any suggestion of improper communication is taken seriously and will be responded to through the Ministry of Justice. (22)That the Adjudicator rushed through the hearings and did not allow additional time to present evidence or counterclaim: The proceedings took place over two and a half days of hearings – a total of 20 hours – over a period of 6 months. The Tribunal has a statutory 1 and practical duty to manage hearings as efficiently as possible to allow fair access to hearing time for all of those who make an application. I am satisfied that the time given to each party during hearings was fair and reasonable. I note that I did accept two additional claims 2 put forward by the tenant on 17 March 2023, some 4 months after his application was filed. I allowed these because there was sufficient time for the landlord to consider them before the next substantive hearing and because the two claims related to events already being discussed (that is, the facts were not new). The Tribunal has no obligation to allow a party to add claims after proceedings have commenced. This is mainly because to do so can disadvantage the other party unless they are given proper time to respond, a party may seek to use information it has learned in a hearing to advance its own claims (which goes against the principle of a party making its best and total claim at the start of proceedings), and because to do so extends proceedings which is not conducive to efficient use of Tribunal time and resources. Both parties had opportunity to present new evidence before each of the 4 scheduled hearing dates. 1 Section 85 Residential Tenancies Act 1986 says: “... the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants ...”. 2

A claim for exemplary damages on the grounds that the landlord had not lodged the bond. 2. An additional claim for compensation for “having to mow the lawns outside the edge of our tenancy land area”. See email from Mike Macdonald to Hamilton Tribunal registry on Friday 17 March 2023 at 2:22pm. (23)That the decision did not address evidence and submissions that a fair rent for the tenancy premises was less than the rent agreed to by the parties: The order of 20 July 2023 addressed the maintenance, insulation, and healthy homes claims raised by the tenant and I made compensation decisions. 3 A decision does not always refer to every piece of evidence presented. If a party disagrees with a Tribunal decision or thinks it is wrong, the correct remedy is to file an appeal.

In summary, the essence of the tenant’s rehearing application is that he does not agree with the order dated 17 July 2023 and does not consider that he was given sufficient time and fair opportunity to present his case.

I disagree with the latter contention for the reasons set out in the paragraphs above. The remedy for the former is to file an appeal. Mr Macdonald was clearly advised that the time limit for filing an appeal is strict and that it cannot be extended. 4

My decision on the grounds for a rehearing put forward by the tenant is that these do not establish that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.

The application for a rehearing is dismissed.

The stay of proceedings is lifted. The order of 17 July 2023 may now be enforced by the landlord.

Reasons

Mike Macdonald (tenant), and Ross Gardiner and Mark Gardiner (for the landlord), attended a telephone hearing of the tenant’s rehearing application on 3 October 2023.

Mike Macdonald applied for a rehearing on 28 July 2023 and attached an email (dated 24 July 2023) which set out eleven grounds or reasons.

Mike Macdonald further emailed the Tribunal on 3 and 4 August 2023 setting out a total of 22 grounds for his rehearing application.

He confirmed in the 3 October 2023 hearing that these were the 22 grounds he wished to address.

Has a substantial wrong or miscarriage of justice occurred?

My decision on the grounds for a rehearing put forward by the tenant is that these do not establish that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.

The application for a rehearing is dismissed.

The stay of proceedings is lifted. The order of 17 July 2023 may now be enforced by the landlord.

Tenancy Tribunal case 4421380 — Rent arrears at 85 Forkert Road, Ōhaupō, 3882

At a glance

Tenancy Tribunal case 4421380 — Rent arrears at 85 Forkert Road, Ōhaupō, 3882

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions