What was Tenancy Tribunal case 4521590 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 4521590?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4521590?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4521590?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9498231-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4521590 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 4521590?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4521590?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4521590?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9498231-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4521590 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant names and identifying details.
Cosmo Holdings Limited must pay [The tenant/s] $20.44 immediately, being reimbursement of the filing fee.
The Bond Centre is to pay the bond of $3,120.00 ([Bond number suppressed]) to [The tenant/s] immediately.
The application for rehearing of application 4475843 is dismissed.
The landlord’s claims under application 4521590 are dismissed.

Reasons

Both parties attended the hearing held in September 2023. The landlord was represented by its director Ms Dai. The Tribunal had the assistance of an interpreter.
The tenants rented the tenancy premises – a house – from the landlord in March 2022. The term was fixed for a year. The parties’ relationship deteriorated badly after a leak at the tenancy premises in December and both parties made applications to the Tenancy Tribunal. A hearing was held at the end of January 2023 and the parties agreed the fixed term tenancy would end on 17 February 2023. The parties also agreed to a time for the final inspection to be carried out. I made a short order confirming this on 21 February 2023. This first order was necessary because the landlord would not accept the end of the tenancy or possession of the house without an order. In my defence, I have never had a party go back on an agreement made in a hearing room before.
My second order was made at the start of March. In that order I dismissed all the landlord’s claims and made orders in favour of the tenants for reimbursement of an electrician’s bill and exemplary damages for breach of quiet enjoyment. The landlord applied for a rehearing of that second order.
After the end of the tenancy the landlord filed a second application against the tenants for claims including the costs of cleaning and repairs, and for loss of rent, rent arrears, compensation, refund of the bond, and reimbursement of the filing fee. The tenants filed a second application for the bond. The hearing of these second applications took place in September. It was delayed because of the landlord’s health. At the hearing I heard the landlord’s application for a rehearing, and then the second applications. I decided to hear the matters together because I was concerned at the delays and because of the animosity between the parties. The questions I have to decide are: • Should there be a rehearing of the landlord’s first application? • Can I reconsider claims already dealt with in my second order? • Did the tenants leave the house reasonably clean and tidy? • Did the tenants damage the house? • Did the tenants reinstate the kitchen cupboard so it was substantially the same as before they moved in? • Should the tenants pay more rent? • Can the landlord claim exemplary damages for racial discrimination and antisocial behaviour? • Can the tenants make late claims against the landlord and claim the costs of attending the hearing? • Who should get the bond? • Should either party get suppression? Should there be a rehearing of the landlord’s first application (my second order)?
My second order was made on 9 March 2023. The landlord applied for a rehearing that same day on the grounds that: • I omitted claims • the landlord had new information about the claims that was not available at the first hearing • the tenants claim for breach of privacy was not relevant to the anti social notices • name suppression for the landlord was not addressed in the order • the tenants withheld critical information by trespassing the landlord • I did not give sufficient weight to the landlord’s evidence.
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”. 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.
In Wellington City Council v McMillan [2003] DCR 50, the District Court 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: [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 a notice of appeal against an original decision nugatory.
The landlord stated that I omitted claims. This is because of paragraph 5 of my second order, which said that I had not considered the contents of 14A of the application form as claims. This part of the application form asks how the tenant is in breach of the RTA, whether notices have been served and what order the landlord wants the Tribunal to make.
The orders the landlord wanted the Tribunal to make were an order to get work done, orders for debt recovery costs, and an order to regain possession of the house. As to the work order, the landlord submitted at the hearing to decide the rehearing application that she needed a work order so the tenant would reinstate the kitchen cupboard. I agree I did not consider a work order in my order. This is because the tenancy had not ended and there is provision in section 42B(4) of the RTA for reinstatement after a minor change during the tenancy. Even if I was wrong in not considering a work order I do not consider this resulted in a substantial miscarriage of justice. The landlord was able to bring a claim after the tenancy ended in the usual manner for further repairs to the cupboard. This is not grounds for a rehearing.
I did explain in my order that I could not make orders for enforcement, which includes the costs of recovery. Possession was granted to the landlord in my first order. I further note that all the matters listed in 14A – refusal to allow access, alterations causing a leak, wilful damage, and hate speech - were dealt with in my order anyway. I do not agree that I omitted claims, and this is not grounds for a rehearing.
The landlord stated that there was new information that was not available at the first hearing. 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 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.
The landlord submitted that there was evidence she could not get for the first hearing because the tenants issued a trespass notice against her, and she was denied access to the house. The new evidence provided in support of the rehearing shows a text about one of the tenants having a pre existing mental health condition and a message sent at midnight on 23 December from the tenants saying “see you in court”. The landlord submitted it was possible they would deliberately damage the house because of their pre existing mental health issues.
The landlord said there were irregularities around the plumber the tenants used during the tenancy and that she had complained to the regulatory board. She made a similar complaint about the electrician the tenants used for emergency work. She said the regulatory boards refused to take action, which means there is no new information here.
There were also some photos of power switches and a photo of a laundry cabinet. The landlord submitted that the tenants withheld critical information that became apparent when the landlord was able to conduct a final inspection.
Apart from the message sent at midnight, I accept this is information the landlord did not present at the first hearing. However, I find none of this new information would have changed my decision. I am not persuaded there are exceptional circumstances, and the new information is not grounds for a rehearing.
The landlord submitted that her issuing the antisocial notices was irrelevant to the tenants’ claims for breach of quiet enjoyment. This is a question about the application of the law to the facts. Questions of law are matters for appeal. This is not grounds for a rehearing.
The landlord submitted there should be a rehearing because I did not consider her application for suppression in the order. She also said the tenants did not make an application for suppression. My notes show the tenants made an application for suppression at the hearing and this was allowed at paragraph 31 of my second order. The tenants’ application for suppression was allowed because they were the “most successful party”. I did consider the landlord’s application for suppression, but I was not clear about that in the order. Even so, I am not persuaded that failing to say the landlord’s application for suppression was not allowed because she was not the most successful party has resulted in a substantial wrong or a miscarriage of justice. This is not grounds for a rehearing.
At the second hearing the landlord submitted that she was prevented from entering the house and this meant her electrician could not independently assess the damage. She submitted that in situations like that there should be a rule of law that the adjudicator assumes in the landlord’s favour. This is a question about the application of the law to the facts. Questions of law are matters for appeal. This is not grounds for a rehearing.
The landlord submitted that I gave insufficient weight to the evidence provided by her electrician and plumber, and that I made the wrong decision about the ants. This is a question about the application of the law to the facts. Questions of law are matters for appeal. This is not grounds for a rehearing.
I am not persuaded there has been a substantial wrong or a miscarriage of justice. The landlord’s application for a rehearing is dismissed.

Can I reconsider claims already dealt with in my second order?

There is a rule of law which says I cannot reconsider claims which have already been decided. This is relevant because we have already had one hearing and two orders and some of the landlord’s claims have been determined in my second order. Those claims cannot be brought for determination again because of the doctrine of res judicata. The principle of res judicata has been defined by Spencer, Bower, Turner & Handly, in Res Judicata (3rd ed) 1996, Butterworths, paragraph 1v where it states: In English law a res judicata is a decision pronounced by judicial tribunal having jurisdiction over the case and the parties which disposes once and for all of all the matters decided, so that except on appeal, they cannot afterwards be relitigated between the same parties or their privies.
The Court of Appeal in Fraser v Robinson [1991] 3 NZLR 257 at 260, noted that res judicata will cover issues so clearly part of the subject matter of the earlier litigation that they could and ought to have been raised therein. Whenever a party against whom a judgment has been made has failed to raise some question he or she could have raised, the judgment includes a decision on the omitted question. This is because the law imposes a positive obligation on litigants to bring forward their whole case. The law will not hear a litigant to argue later that they have not argued their case carefully or inadvertently or by accident omitted part of their case. This has been the law for a considerable period of time and back to the leading case of Henderson (1843). The rule in Henderson v Henderson is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a Court of competent jurisdiction, to bring their whole case before the Court so that all aspects of it may be finally decided, (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the Court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, and the general interest as well as that of the parties itself, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.
I note that at the second hearing the landlord’s claims were heard and the parties gave evidence and made submissions. This is because we had the unusual situation of holding the hearing to decide if there should be a rehearing on the same day. It was expeditious to hear all claims together, and to determine res judicata and the rule in Henderson v Henderson after the hearing. The parties were made aware of this.
I have considered the previous decision (my second order) to determine whether the landlord is prevented from pursuing any of her current claims because of the res judicata principle and because if the rule in Henderson v Henderson. I find these claims have been decided and cannot be considered again: • The plumber’s invoice - $243.38 • The pest control invoice - $333.50 • Repairs to the rumpus room - $1000 and $2500 • Replacement carpet in the rumpus room - $2500 and $1449 • Exemplary damages for failure to allow entry which was discussed at the hearing and decided in my second order. • [redacted]’s repairs which relate to 2022, before the landlord filled her first application and which should have been included in the first application by the rule in Henderson v Henderson. • Failure to report the water leak at the installation of the dishwasher in April 2022, which should have been included in the first application by the rule in Henderson v Henderson.

Did the tenants leave the house reasonably clean and tidy?

At the end of the tenancy tenants must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA.
The landlord has claimed that the tenants left the carpets in an unreasonable condition and has claimed the cost of carpet cleaning in the amount of $517.50. Landlord’s can claim compensation if they have suffered a loss. This is the landlord’s claim to prove. The landlord said this cleaning was not done because she replaced the carpets in the house. I find there was no loss because the landlord did not pay the cost of carpet cleaning. This claim is dismissed.
There is a claim for the cost of washing the outside of the house. The landlord wants compensation in the amount of $402.50. This is the landlord’s claim to prove. The landlord provided photos of what looks like mud on some areas outside, including some windows and the sliding door, and moss on the steps outside the house. I find the tenants are responsible for leaving the inside of the house in a reasonable condition, but that cleaning the outside of the house is considered to be a landlord maintenance responsibility. I also note that this cleaning had not been done in the 6 months since the tenancy ended, so there is no actual loss to the landlord. This claim is dismissed.

Did the tenants damage the house?

The claim the tenants damaged a tree was withdrawn at the hearing.
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
The landlord has claimed the cost of repairing walls in the amount of $115. She has provided me with some photos. The tenants said there was wear and tear on many walls at the start of the tenancy. There is no invoice for this work. I find the landlord has not proved loss and this claim is dismissed.
There is a claim for replacing a window stay in one of the bedrooms in the amount of $92. The landlord provided a photo of the missing stay. The tenants submitted the stay was missing from the start of the tenancy. This is the landlord’s claim to prove. The landlord has not provided an invoice, so she has not proved there was any loss. This claim is dismissed. Did the tenants reinstate the kitchen cupboard so it was substantially the same as before they moved in?
The landlord claims the tenant has failed to return a kitchen cupboard to a condition that was substantially the same as the condition prior to a minor change that was made by the tenants. The minor change was that the tenants installed a dish washer not long after they moved in, and they did not get approval from the landlord as required by the RTA. There is evidence that the landlord accepted the change at the time, and this is recorded in the inspection notes made at the time the landlord discovered the change.
Section 42B(4) RTA states that on or before the expiry of a tenancy the tenant must return the premises to a condition that is substantially the same as the condition the premises were in prior to the minor change being made. Breaching this obligation is an unlawful act. The landlord has claimed compensation and exemplary damages.
There are three issues with the cupboard. The landlord provided photos and video showing that the cupboard door was not correctly aligned after the tenants removed the dishwasher and reinstated the cupboard. As well, the landlord is also claiming the cost of repairing gib at the back of the cupboard. There is also a claim for $188.80 which is the cost of repairing some cracked lino “underneath the kitchen cabinet”. There are invoices for this work.
The tenants submitted that the joiner they contracted to do the job did not align the cupboard doors as well as he should have, but said the cupboard was substantially the same as when they moved in. I have seen photos and the video. I find the repair has left the cupboard “substantially the same”.
The tenants do not accept the claims for the gib and the lino. They provided me with a photo showing there was exposed framing and no lino in the cupboard when they moved in. The photo they provided is dated 17 March 2023, the day after they moved in. I have also been provided with a copy of the initial inspection document from the myrent website. The landlord completed this before the tenancy started, and the date on the document is 5 February 2023. The tenants said they were able to access the initial report and add their comments when they moved in. At page 5 they have added a photo showing there is exposed framing in the cupboard, and I can see there in no lino on the floor of the cupboard. They also noted “Exposed framing under kitchen sink, wall not lined.”
The landlord replied that she believed the evidence had been fabricated by the tenants to hide damage. However, I find the evidence from the tenants is persuasive. It sems unlikely to me that the tenants would be able to go onto the [rental] website at the end of the tenancy and amend the comments made in the initial inspection report. The landlord has not provided me with any supporting information from myrent that the ingoing report can be changed. This claim is not proved and it is dismissed.

Should the tenants pay more rent?

There are two parts to this claim. The landlord said the tenants owe more rent because they did not move out on 17 February 2023 as agreed. The tenants provided me with a video dated 17 February which shows an empty house. The video is dated by showing the front of a second mobile phone at the start of the video. I find the tenants moved out on 17 February 2023 and they do not owe any more rent.
The landlord also submitted that the tenants did not return the keys to her and she is entitled to claim rent until the keys were returned. A tenancy ends on the date agreed by the parties, and not when keys are returned. The claim for additional rent because the landlord did not have the keys is dismissed.
Secondly, the landlord is claiming two weeks of lost rent after the end of the tenancy because the tenants refused access for remedial work during the tenancy. The landlord said the tenants refused to allow her electrician to enter the house back in December 2022. The tenants said they never refused access for remedial work, and they do not agree to the claim.
In my second order I decided that the landlord had not proved her claim that the tenants refused access in December and that claim was dismissed. This part of the claim cannot be decided again.
This is the landlord’s claim to prove. The landlord has not provided me with any notices, emails, myrent messages or texts which show she asked the tenants for access to the houses to carry out repairs in January or February 2023. Further, I have not found the tenants liable for the leak, or the ants, or for any other damage. If there has been no breach then there are no grounds for awarding loss of rent. This claim is not proved and it is dismissed. Can the landlord claim exemplary damages for racial discrimination and antisocial behaviour since the first hearing?
The landlord submitted that the tenants harassed her and discriminated against her because of her race. There is nothing in the RTA which allows a landlord to make a claim against tenants for harassment or breach of quiet enjoyment. There is no provision for exemplary damages because of antisocial behaviour against the landlord. I have no jurisdiction over the actions of either party after the end of the tenancy. I have no jurisdiction over hate speech.
The RTA does allow the Tribunal to consider whether there has been racial discrimination in respect of the grant, continuance, extension, variation, or renewal of a tenancy agreement. I find the communication between the parties did not relate to the grant, continuance, extension, variation, or renewal of a tenancy agreement. This means I have no jurisdiction to decide if any comments discriminated against the landlord. See sections 12(1) RTA.
These claims are dismissed. Can the tenants make late claims against the landlord and claim the costs of attending the hearing?
In the days before the hearing the tenants asked that the Tribunal consider making an order for their costs of attending the hearing. Information was provided to support the claim. I cannot allow this because the Tribunal can only award lawyers’ costs where a lawyer has attended the hearings, costs where matters should have settled at mediation and costs where the proceedings should not have been brought. None of those apply here. See section 102 RTA.
The tenants also provided information that the landlord had registered the tenants as bad debtors on a public website. This happened during the tenancy. The tenants’ application did not include a claim for this. While the relevant information was provided to the landlord before the hearing, it was not clear this was an amended claim. This claim is not allowed. Other orders
Because the tenants have wholly succeeded with the claim I must reimburse the filing fee.
The bond is refunded in full to the tenants.
The tenants’ application for suppression is allowed because the tenants are the most successful party.
The landlord’s application for suppression is not allowed because she is not the most successful party. I decline to use my discretion because there is public interest in the landlord being named.

Tenancy Tribunal case 4521590 — Rent arrears

At a glance

Tenancy Tribunal case 4521590 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Can I reconsider claims already dealt with in my second order?

Did the tenants leave the house reasonably clean and tidy?

Did the tenants damage the house?

Should the tenants pay more rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Can I reconsider claims already dealt with in my second order?

Did the tenants leave the house reasonably clean and tidy?

Did the tenants damage the house?

Should the tenants pay more rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions