What was the outcome of Tenancy Tribunal case 4522501?

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

How much money was awarded in case 4522501?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4522501?

The dispute type was not classified.

Where can I read the official tribunal order for case 4522501?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9912956-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4522501?

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

How much money was awarded in case 4522501?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4522501?

The dispute type was not classified.

Where can I read the official tribunal order for case 4522501?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9912956-Tenancy_Tribunal_Order.pdf.

85 Ferry Parade, Herald Island, Auckland 0618 Tenancy Tribunal Case 4522501 — Tenancy dispute

Order

The application for rehearing is dismissed.

Reasons

On 14 August 2023, the Tribunal made an order dismissing Mr and Mr Tutty’s application.
On 19 August 2023, Mrs Tutty applied for a rehearing on the grounds that: • The order contains factual inaccuracies; • Important and relevant evidence was improperly rejected; • The order refers to new evidence admitted which was never produced at the hearing or made available to them; • New evidence has become available; • The property manager’s story told at the hearing, accepted by the Adjudicator and included in the order, is flawed and cannot be the truth.
The landlord opposes the rehearing application.
A hearing was held on 6 December 2023 by teleconference to consider whether a rehearing should be granted or not. Both parties attended.
Section 105(1) Residential Tenancies Act 1986 (the Act) 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. 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.
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. 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.
In Wellington City Council v McMillan (MA 70/02, DC Wellington, 17 June 2002) the Court considered the application of section 105(1) and stated: “[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. This implies an 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 against the general hierarchical nature of the appeal system, it would also make the time for filing notice of appeal against an original decision nugatory.”
The District Court case of Kaipo v Clarke & McCarthy, Waitakere12 April 2002, considered an appeal by an applicant who had not been able to prove her claims at the hearing. The learned Judge Mather dismissed the appeal and said it is incumbent upon the applicant to provide the evidence necessary to prove the case: “If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide he necessary evidence. It is not up to the other parties and it is certainly not up to the tribunal to extract evidence from parties who do not voluntarily furnish the evidence to support their claim”.
Section 85(1) of the Act requires the Tribunal to deal with claims in a manner that is "fair and expeditious" (emphasis added). Section 96 of the Act confirms that it is for the Tribunal to regulate its procedure generally.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Mrs Tutty has failed to establish the grounds for a rehearing. • The reasons for requesting a rehearing essentially amount to a disagreement with the Tribunal's findings on the facts and application of the law. As noted above, this is not sufficient to establish a miscarriage of justice. • The Tribunal endeavours to keep its procedures relatively informal, in keeping with the purpose and intent of the philosophy which underpins the Tribunal. • The Tribunal has the discretion to decide the format of the proceedings as to how the proceedings are conducted. On occasion, a party to a hearing may disagree with how they would have liked things to have been run. It is the Adjudicator, not the parties, who has that duty and power. The mere fact that a party has not been permitted to say everything that they want to say about a case or where a hearing has not been conducted the way a party would have liked is not a ground for saying that the party had their rights to be heard breached. • I approached the hearing with an open mind. The parties were given full opportunity to present their respective positions. All relevant evidence presented was considered by the Tribunal. I consider I had completed my duty in this matter in accordance with the principles of natural justice and my responsibilities under the Residential Tenancies Act 1986. • Mrs Tutty criticises the manner in which the Tribunal dealt with evidence. The Tribunal is not bound by the Evidence Act 2006 or the ordinary rules of evidence but may call for and receive as evidence any statements, documents or information which it thinks may be useful to effectively determine the case before it (section 97(4) of the Act). • It is the fundamental role of the Adjudicator to hear evidence from the parties, to consider that evidence, and to make a decision on the evidence presented. Cases are decided on the basis of an objective assessment of the evidence. Inevitably on occasion, one of the parties will disagree with the weight that the Adjudicator has given to a particular piece of the evidence. But that is the nature of the Tribunal process. It is not a ground for a rehearing. • Mrs Tutty referred to specific findings made by the Tribunal, to show that the Tribunal was wrong. It is incumbent upon the applicant to provide the evidence necessary to prove the case at the time of the original hearings. I do not find the new evidence presented or made available since the hearing merits another hearing. • Mrs Tutty is concerned that the Tribunal allegedly failed to provide them with a copy of a ‘professional rent appraisal from a local agent’ which was produced by the landlord/property manager. Mrs Tutty is misconstrued. No such appraisal was produced by the landlord. Nor does the order specifically state that a professional rent appraisal had been produced, other than merely referring to it as a submission made by the landlord. Nothing turns on this. This is not a ground for a rehearing. • Mrs Tutty asserts that the property manager had not been truthful at the hearing and that they had been given conflicting stories by the property managers regarding the landlord’s motives in giving notice. I am not satisfied the discrepancies Mrs Tutty has highlighted are tantamount to the property managers and the landlord having engaged in deliberate and misleading conduct in the manner complained of by Mrs Tutty. Mrs Tutty’s assertion is therefore not of itself grounds for a rehearing. • A number of the matters mentioned in the application for rehearing were canvassed at the hearing. Section 105 does not provide a forum for recycling arguments which did not succeed in the first instance. This is not a ground for a rehearing. • Mrs Tutty has not raised any significant issue in relation to the Tribunal's procedure that can amount to a ground for a rehearing. A rehearing is not another opportunity to present a case, simply because a party disagrees with the outcome. My impression, that is what Mrs Tutty is seeking. Mr and Mrs Tutty are not entitled to an opportunity to re-litigate the matter or a second chance to present their case. Ultimately, there is nothing in the rehearing application that would lead me to making a different decision.
I am not satisfied a substantial wrong or miscarriage of justice has occurred. Accordingly, the application for rehearing fails and is therefore dismissed.

Order

The application for rehearing is dismissed.

Reasons

On 14 August 2023, the Tribunal made an order dismissing Mr and Mr Tutty’s application.
On 19 August 2023, Mrs Tutty applied for a rehearing on the grounds that: • The order contains factual inaccuracies; • Important and relevant evidence was improperly rejected; • The order refers to new evidence admitted which was never produced at the hearing or made available to them; • New evidence has become available; • The property manager’s story told at the hearing, accepted by the Adjudicator and included in the order, is flawed and cannot be the truth.
The landlord opposes the rehearing application.
A hearing was held on 6 December 2023 by teleconference to consider whether a rehearing should be granted or not. Both parties attended.
Section 105(1) Residential Tenancies Act 1986 (the Act) 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. 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.
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. 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.
In Wellington City Council v McMillan (MA 70/02, DC Wellington, 17 June 2002) the Court considered the application of section 105(1) and stated: “[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. This implies an 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 against the general hierarchical nature of the appeal system, it would also make the time for filing notice of appeal against an original decision nugatory.”
The District Court case of Kaipo v Clarke & McCarthy, Waitakere12 April 2002, considered an appeal by an applicant who had not been able to prove her claims at the hearing. The learned Judge Mather dismissed the appeal and said it is incumbent upon the applicant to provide the evidence necessary to prove the case: “If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide he necessary evidence. It is not up to the other parties and it is certainly not up to the tribunal to extract evidence from parties who do not voluntarily furnish the evidence to support their claim”.
Section 85(1) of the Act requires the Tribunal to deal with claims in a manner that is "fair and expeditious" (emphasis added). Section 96 of the Act confirms that it is for the Tribunal to regulate its procedure generally.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Mrs Tutty has failed to establish the grounds for a rehearing. • The reasons for requesting a rehearing essentially amount to a disagreement with the Tribunal's findings on the facts and application of the law. As noted above, this is not sufficient to establish a miscarriage of justice. • The Tribunal endeavours to keep its procedures relatively informal, in keeping with the purpose and intent of the philosophy which underpins the Tribunal. • The Tribunal has the discretion to decide the format of the proceedings as to how the proceedings are conducted. On occasion, a party to a hearing may disagree with how they would have liked things to have been run. It is the Adjudicator, not the parties, who has that duty and power. The mere fact that a party has not been permitted to say everything that they want to say about a case or where a hearing has not been conducted the way a party would have liked is not a ground for saying that the party had their rights to be heard breached. • I approached the hearing with an open mind. The parties were given full opportunity to present their respective positions. All relevant evidence presented was considered by the Tribunal. I consider I had completed my duty in this matter in accordance with the principles of natural justice and my responsibilities under the Residential Tenancies Act 1986. • Mrs Tutty criticises the manner in which the Tribunal dealt with evidence. The Tribunal is not bound by the Evidence Act 2006 or the ordinary rules of evidence but may call for and receive as evidence any statements, documents or information which it thinks may be useful to effectively determine the case before it (section 97(4) of the Act). • It is the fundamental role of the Adjudicator to hear evidence from the parties, to consider that evidence, and to make a decision on the evidence presented. Cases are decided on the basis of an objective assessment of the evidence. Inevitably on occasion, one of the parties will disagree with the weight that the Adjudicator has given to a particular piece of the evidence. But that is the nature of the Tribunal process. It is not a ground for a rehearing. • Mrs Tutty referred to specific findings made by the Tribunal, to show that the Tribunal was wrong. It is incumbent upon the applicant to provide the evidence necessary to prove the case at the time of the original hearings. I do not find the new evidence presented or made available since the hearing merits another hearing. • Mrs Tutty is concerned that the Tribunal allegedly failed to provide them with a copy of a ‘professional rent appraisal from a local agent’ which was produced by the landlord/property manager. Mrs Tutty is misconstrued. No such appraisal was produced by the landlord. Nor does the order specifically state that a professional rent appraisal had been produced, other than merely referring to it as a submission made by the landlord. Nothing turns on this. This is not a ground for a rehearing. • Mrs Tutty asserts that the property manager had not been truthful at the hearing and that they had been given conflicting stories by the property managers regarding the landlord’s motives in giving notice. I am not satisfied the discrepancies Mrs Tutty has highlighted are tantamount to the property managers and the landlord having engaged in deliberate and misleading conduct in the manner complained of by Mrs Tutty. Mrs Tutty’s assertion is therefore not of itself grounds for a rehearing. • A number of the matters mentioned in the application for rehearing were canvassed at the hearing. Section 105 does not provide a forum for recycling arguments which did not succeed in the first instance. This is not a ground for a rehearing. • Mrs Tutty has not raised any significant issue in relation to the Tribunal's procedure that can amount to a ground for a rehearing. A rehearing is not another opportunity to present a case, simply because a party disagrees with the outcome. My impression, that is what Mrs Tutty is seeking. Mr and Mrs Tutty are not entitled to an opportunity to re-litigate the matter or a second chance to present their case. Ultimately, there is nothing in the rehearing application that would lead me to making a different decision.
I am not satisfied a substantial wrong or miscarriage of justice has occurred. Accordingly, the application for rehearing fails and is therefore dismissed.

Tenancy Tribunal case 4522501 — Tenancy dispute at 85 Ferry Parade, Herald Island, Auckland 0618

At a glance

Claims & awards

Tenancy Tribunal case 4522501 — Tenancy dispute at 85 Ferry Parade, Herald Island, Auckland 0618

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions