What was the outcome of Tenancy Tribunal case 4421683?

The tribunal order states: The tenant’s application for rehearing is dismissed.

How much money was awarded in case 4421683?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4421683?

The primary dispute was Rent arrears. Related themes: Mould & damp.

Where can I read the official tribunal order for case 4421683?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9850648-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4421683?

The tribunal order states: The tenant’s application for rehearing is dismissed.

How much money was awarded in case 4421683?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4421683?

The primary dispute was Rent arrears. Related themes: Mould & damp.

Where can I read the official tribunal order for case 4421683?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9850648-Tribunal_Order.pdf.

16 Leaming Place, Clarks Beach, Clarks Beach 2122 Tenancy Tribunal Case 4421683 — Rent arrears

Order

The tenant’s application for rehearing is dismissed.

Reasons

Both parties attended the telephone hearing on 18 January 2024. The purpose of the hearing was to hear the tenant’s application for a rehearing dated 30 October 2023. Procedural history
A summary of the procedural history provides relevant context relating to the rehearing application: • The landlord applied to the Tribunal on 26 August 2022 for termination and compensation. • The tenant applied to the Tribunal for compensation on 17 October 2022. The tenant’s claim related to the condition of the property. • A case conference was held on 22 December 2022, providing directions to a hearing of both applications. • On 9 January 2023 the tenant filed hardcopy evidence supporting his application. The evidence was subsequently lost by the Court. • On 8 February 2023 the tenant withdrew his cross-application. The tenant confirmed the withdrawal on 20 February 2023. • On 12 April 2023 the Tribunal awarded outgoings to the landlord and adjourned the landlord’s remaining claims. • On 9 October 2023, after hearing the landlord’s remaining claims, the Tribunal gave the tenant until 23 October 2023 to provide further evidence relating to certain aspects of the landlord’s application. Nothing further was provided. • On 30 October 2023 the Tribunal issued its decision on the landlord’s remaining claims. • The tenant immediately applied for a rehearing. Relevant law
Section 105(1) of the Residential Tenancies Act 1986 (the Act) provides that the Tribunal has the power to order a rehearing of the whole or any part of a proceeding where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
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, and 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 – “something more than a mere wrong decision must be shown”, see Wellington City Council v McMillan (DC Wellington, 7 June 2002, MA 70/02 & TT 97/02, Judge Tuohy) at paragraph 19.
The District Court has confirmed that a rehearing will not be granted just because a party is unhappy with the decision, or because the applicant has a “desire to take issue with, or express a contrary view on the evidence to that reached by the Tribunal...” (Xpert Management Solutions Limited v Bravo [2015] NZDC 1506).

Has a substantial wrong or miscarriage of justice occurred?

There are two issues, i.e., whether a rehearing should be granted in respect of the 30 October 2023 decision, and whether there has been a miscarriage of justice caused by the loss of the tenant’s file of evidence. The recovery of the file could be seen as new evidence, material to the outcome, which was not reasonably available previously.
The tenant’s rehearing application did not explicitly assert that the loss of the file had resulted in a miscarriage of justice, but it was implicit in the tenant’s submission that the file supported his claim that the property was unfit for residential occupation (“I...request for a proper and full rehearing based on the original problem, the property was never up to standard for rental...”). Recovery of lost evidence
At the time, the tenant did not clearly rely on the lost evidence for his decision to withdraw the cross-application. Initially the reason given was that the property management company he believed he had dealt with had been removed from the Companies register.
The tenant says he has now been able to recover or reconstitute the evidence which was lost. The tenant says the evidence shows that the property was not a healthy home and should never have been rented.
The tenant did not suggest that any technological issues had delayed recovery of the file. Rather, unfortunate events in his personal and family life had intervened. Strictly speaking, the evidence could have been reconstituted and provided as part of the proceeding. At no stage did the tenant suggest that the proceedings be adjourned while he recovered or reconstituted his file, and it was only at the hearing on 9 October 2023 that it became evident the tenant had been able to recover some of the lost evidence.
To the extent that the tenant has again raised issues included in the cross- application, in my opinion this cannot support a rehearing of the 30 October 2023 order or any earlier part of the proceeding. To use a colloquialism, there has been too much water under the bridge. For many months the Tribunal proceeded on the basis that the cross-application was not being pursued and the evidence to support it was not available. In the circumstances, I consider the Tribunal was entitled to adopt this course and to rehear the proceedings would result in an injustice to the landlord.
In the circumstances I consider it would be an abuse of process, having withdrawn the cross-application, for the tenant to say that the misplaced evidence meant a miscarriage of justice had occurred or that a rehearing should be granted because the evidence has now been recovered. To the extent this was the implicit thrust of the tenant’s submissions, I find that a rehearing should not be granted for this reason. As discussed at the hearing, I do not see why the tenant cannot file his application again, as a fresh proceeding, but as to this it is not appropriate to make any findings. Rehearing the 30 October 2023 order
My understanding was that the claim for rent to 4 February 2023 was opposed on the basis there had been extensive flooding in January 2023. While the tenant says the flooding was notified to the Council, there is no contemporaneous evidence showing flooding at the property or the effect of any flooding.
A report from the Auckland Council dated 30 January 2023 was filed yesterday but this relates to site visits by the Council in December 2022, before the flooding. The available correspondence with the Council does not explicitly refer to flooding at the property in 2023. I am not satisfied that a rehearing should be granted in relation to the rent arrears.
As to the claim for rubbish removal costs, the tenant said that household items and furniture were discarded because of dampness issues at the property causing mould. It would have been necessary to determine this as part of the tenant’s cross-application, but it was withdrawn. The evidence available at the hearing on 9 October 2023, in my view, supported the landlord’s claim for rubbish removal costs.
The tenant provided a photograph said to show the lawns in a reasonably short and tidy condition on 31 January 2023. In my opinion, the photograph tends to support the Tribunal’s finding, based on the landlord’s exit inspection report, that the gardens needed mowing at the end of the tenancy. The Tribunal noted in the 30 October 2023 order that the lawns had likely been left unattended for some weeks after the tenant vacated and reduced the claim accordingly. I am not satisfied that a rehearing should be granted in relation to the award of lawn mowing costs.
The tenant provided further submissions and evidence to show that the landlord had backdated the ingoing inspection report. The motivation for this was said to be a provision in the tenancy agreement requiring the tenant to notify any defects within 5 days, failing which the condition of the property would be deemed to be accepted.
The relevance of this to the findings made in the 30 October 2023 order remains unclear. Even assuming the ingoing inspection report was backdated to 18 February 2023 from a date in March 2023, this does not automatically impugn the landlord’s claims. As previously noted, it does not follow that all the landlord’s evidence should be disregarded as unreliable because of a misdated document. The condition of the property near the start of the tenancy was not determinative of the landlord’s vacated compensation claims. Conclusion
For these reasons, I find that the tenant has not established grounds for a rehearing.

Order

The tenant’s application for rehearing is dismissed.

Reasons

Both parties attended the telephone hearing on 18 January 2024. The purpose of the hearing was to hear the tenant’s application for a rehearing dated 30 October 2023. Procedural history
A summary of the procedural history provides relevant context relating to the rehearing application: • The landlord applied to the Tribunal on 26 August 2022 for termination and compensation. • The tenant applied to the Tribunal for compensation on 17 October 2022. The tenant’s claim related to the condition of the property. • A case conference was held on 22 December 2022, providing directions to a hearing of both applications. • On 9 January 2023 the tenant filed hardcopy evidence supporting his application. The evidence was subsequently lost by the Court. • On 8 February 2023 the tenant withdrew his cross-application. The tenant confirmed the withdrawal on 20 February 2023. • On 12 April 2023 the Tribunal awarded outgoings to the landlord and adjourned the landlord’s remaining claims. • On 9 October 2023, after hearing the landlord’s remaining claims, the Tribunal gave the tenant until 23 October 2023 to provide further evidence relating to certain aspects of the landlord’s application. Nothing further was provided. • On 30 October 2023 the Tribunal issued its decision on the landlord’s remaining claims. • The tenant immediately applied for a rehearing. Relevant law
Section 105(1) of the Residential Tenancies Act 1986 (the Act) provides that the Tribunal has the power to order a rehearing of the whole or any part of a proceeding where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
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, and 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 – “something more than a mere wrong decision must be shown”, see Wellington City Council v McMillan (DC Wellington, 7 June 2002, MA 70/02 & TT 97/02, Judge Tuohy) at paragraph 19.
The District Court has confirmed that a rehearing will not be granted just because a party is unhappy with the decision, or because the applicant has a “desire to take issue with, or express a contrary view on the evidence to that reached by the Tribunal...” (Xpert Management Solutions Limited v Bravo [2015] NZDC 1506).

Has a substantial wrong or miscarriage of justice occurred?

There are two issues, i.e., whether a rehearing should be granted in respect of the 30 October 2023 decision, and whether there has been a miscarriage of justice caused by the loss of the tenant’s file of evidence. The recovery of the file could be seen as new evidence, material to the outcome, which was not reasonably available previously.
The tenant’s rehearing application did not explicitly assert that the loss of the file had resulted in a miscarriage of justice, but it was implicit in the tenant’s submission that the file supported his claim that the property was unfit for residential occupation (“I...request for a proper and full rehearing based on the original problem, the property was never up to standard for rental...”). Recovery of lost evidence
At the time, the tenant did not clearly rely on the lost evidence for his decision to withdraw the cross-application. Initially the reason given was that the property management company he believed he had dealt with had been removed from the Companies register.
The tenant says he has now been able to recover or reconstitute the evidence which was lost. The tenant says the evidence shows that the property was not a healthy home and should never have been rented.
The tenant did not suggest that any technological issues had delayed recovery of the file. Rather, unfortunate events in his personal and family life had intervened. Strictly speaking, the evidence could have been reconstituted and provided as part of the proceeding. At no stage did the tenant suggest that the proceedings be adjourned while he recovered or reconstituted his file, and it was only at the hearing on 9 October 2023 that it became evident the tenant had been able to recover some of the lost evidence.
To the extent that the tenant has again raised issues included in the cross- application, in my opinion this cannot support a rehearing of the 30 October 2023 order or any earlier part of the proceeding. To use a colloquialism, there has been too much water under the bridge. For many months the Tribunal proceeded on the basis that the cross-application was not being pursued and the evidence to support it was not available. In the circumstances, I consider the Tribunal was entitled to adopt this course and to rehear the proceedings would result in an injustice to the landlord.
In the circumstances I consider it would be an abuse of process, having withdrawn the cross-application, for the tenant to say that the misplaced evidence meant a miscarriage of justice had occurred or that a rehearing should be granted because the evidence has now been recovered. To the extent this was the implicit thrust of the tenant’s submissions, I find that a rehearing should not be granted for this reason. As discussed at the hearing, I do not see why the tenant cannot file his application again, as a fresh proceeding, but as to this it is not appropriate to make any findings. Rehearing the 30 October 2023 order
My understanding was that the claim for rent to 4 February 2023 was opposed on the basis there had been extensive flooding in January 2023. While the tenant says the flooding was notified to the Council, there is no contemporaneous evidence showing flooding at the property or the effect of any flooding.
A report from the Auckland Council dated 30 January 2023 was filed yesterday but this relates to site visits by the Council in December 2022, before the flooding. The available correspondence with the Council does not explicitly refer to flooding at the property in 2023. I am not satisfied that a rehearing should be granted in relation to the rent arrears.
As to the claim for rubbish removal costs, the tenant said that household items and furniture were discarded because of dampness issues at the property causing mould. It would have been necessary to determine this as part of the tenant’s cross-application, but it was withdrawn. The evidence available at the hearing on 9 October 2023, in my view, supported the landlord’s claim for rubbish removal costs.
The tenant provided a photograph said to show the lawns in a reasonably short and tidy condition on 31 January 2023. In my opinion, the photograph tends to support the Tribunal’s finding, based on the landlord’s exit inspection report, that the gardens needed mowing at the end of the tenancy. The Tribunal noted in the 30 October 2023 order that the lawns had likely been left unattended for some weeks after the tenant vacated and reduced the claim accordingly. I am not satisfied that a rehearing should be granted in relation to the award of lawn mowing costs.
The tenant provided further submissions and evidence to show that the landlord had backdated the ingoing inspection report. The motivation for this was said to be a provision in the tenancy agreement requiring the tenant to notify any defects within 5 days, failing which the condition of the property would be deemed to be accepted.
The relevance of this to the findings made in the 30 October 2023 order remains unclear. Even assuming the ingoing inspection report was backdated to 18 February 2023 from a date in March 2023, this does not automatically impugn the landlord’s claims. As previously noted, it does not follow that all the landlord’s evidence should be disregarded as unreliable because of a misdated document. The condition of the property near the start of the tenancy was not determinative of the landlord’s vacated compensation claims. Conclusion
For these reasons, I find that the tenant has not established grounds for a rehearing.

Tenancy Tribunal case 4421683 — Rent arrears at 16 Leaming Place, Clarks Beach, Clarks Beach 2122

At a glance

Tenancy Tribunal case 4421683 — Rent arrears at 16 Leaming Place, Clarks Beach, Clarks Beach 2122

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