What was the outcome of Tenancy Tribunal case 4535869?

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

How much money was awarded in case 4535869?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4535869?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4535869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10052852-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4535869?

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

How much money was awarded in case 4535869?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4535869?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4535869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10052852-Tribunal_Order.pdf.

Room R91, 187 Gillies Avenue, Epsom, Auckland 1023, Tenancy Tribunal Case 4535869 — Boarding House

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing to consider the tenant’s rehearing application on 26 February 2024.
On 1 December 2024, the Tribunal made an order granting possession of the boarding house room and all facilities of the boarding house at Room R91, 187 Gillies Avenue, Epsom, Auckland 1023, Rae House / Rocklands Accommodation to the landlord; all other claims were dismissed.
The tenant applied for a rehearing on the grounds that the adjudicator improperly admitted or rejected evidence and there is new evidence relating to the original application which has since become available. The tenant submitted in relation to the first notice to vacate received, he was residing on the second floor at which time no work was required on his floor. Consequently, the tenant submits that the first notice is clearly retaliatory. The tenant also considered that he was punished by the landlord because of his association with other tenant Andrew Ross whom the landlord was really wanting to evict.
Section 105(1) Residential Tenancies Act 1986 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 [2003] DCR 50, Judge Tuohy considered the provision “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur” to be strong words which set a high standard and most obviously apply to cases of procedural error or discovery of new evidence.
Those words however cannot cover a complaint that Tenancy Tribunal was merely mistaken or wrong in its findings of fact or application of law. Where the grounds relied on in application for rehearing are complaints about legal correctness of decision they should have been dealt with by way of appeal. No distinction can be made between errors of law that are grave enough to constitute a substantial miscarriage of justice and those which are not.

Has a substantial wrong or miscarriage of justice occurred?

The tenant failed to establish the grounds for a rehearing.
There are no new evidence nor materials adduced which might affect the outcome of the previous hearings and final determination of the Tribunal.
The tenant adduced floor plans of the premises and Rae House and Gillies House which are owned by the same landlord. The tenant pointed out that [59] of the Tribunal Order of 1 December 2023 which refers to student tenants on the second floor being given alternative accommodation outside of Rocklands by the same landlord while the building is being refurbished is incorrect; they were merely being relocated from Rae House to adjacent Gillies House which is owned by the same landlord. Both Rae House and Gillies House are within Rocklands compound at 187 Gillies Avenue.
Those floor plans and incorrect reference in the Order to outside accommodation (when it is actually a move from Rae House to adjacent Gillies House) however do not materially affect the ultimate outcome of the original order of 1 December 2024.
The Tribunal’s ultimate finding is that the landlord’s motivation for ending this boarding house tenancy is in undertaking major refurbishment of the premises rather than the tenant’s complaints or exercising his rights under the RTA, and this effectively determines the applications filed herein.
The tenant’s claim that he has been discriminated on grounds of his age was also found to be unsuccessful. The Tribunal was satisfied that the landlord was decanting the entire boarding house for the proposed works to be carried out; this includes the student boarders. The Tribunal found that as a private organisation, the landlord was under no legal nor moral obligation to re-house him to another complex or building owned by or connected to the landlord. The tenant has not shown how he has been treated differently when his boarding house tenancy was terminated because everyone’s tenancy has been terminated, not just his and the other older boarders’ tenancy.
Accordingly, the tenant has not proven his claim that he has been unlawfully discriminated when the landlord ended his tenancy at Rocklands through the second notice to quit issued in October 2023.
The tenant is unhappy with the decision, but this by itself is insufficient for grant of a rehearing. The tenant has since vacated the premises.
Other complaints are made in relation to the tenant’s goal and plan of staying in Rocklands until end January 2024 which has been “changed” and written submissions that “I wouldn’t want to go to a higher court and make more money damages to Bruce Qin, he isn’t my enemy” and “the next round up in District Court will be with a solicitor representing a high cost for Bruce... and it’s good to go rehearing and not go to District Court...as it saves money” are not entirely coherent. However, the gist of it is this: For me its OK, I’m over 65, retired with lots of time. But willing to end this dispute out of court.
Those complaints and submissions may be relevant points for settlement discussion between the parties but are not grounds for a rehearing.
There is nothing before me that suggests any procedural or substantive error that would result in a miscarriage of justice. The grounds relied on in the tenant’s application for rehearing are really complaints about legal correctness of the decision which should be dealt with by way of appeal.
Putting to one side the incoherence of the above grounds in the rehearing application and the informal submission of evidence associated with it, there is nothing before me which affects the outcome of the original order of 1 December 2023.
Following Judge Tuohy’s ruling in McMillan, complaints about legal correctness of a decision should be dealt with by way of appeal rather than an application for rehearing and no distinction can be made between errors of law that are grave enough to constitute a substantial miscarriage of justice and those which are not.
Ultimately, all the material points relied upon by the respondent in the substantive hearing and the present application for rehearing have been duly canvassed, addressed and determined, albeit there were against the tenant in the proceedings.
There remains nothing before the Tribunal that could have affected the outcome of the original hearing.
For those reasons, the rehearing application must fail.

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing to consider the tenant’s rehearing application on 26 February 2024.
On 1 December 2024, the Tribunal made an order granting possession of the boarding house room and all facilities of the boarding house at Room R91, 187 Gillies Avenue, Epsom, Auckland 1023, Rae House / Rocklands Accommodation to the landlord; all other claims were dismissed.
The tenant applied for a rehearing on the grounds that the adjudicator improperly admitted or rejected evidence and there is new evidence relating to the original application which has since become available. The tenant submitted in relation to the first notice to vacate received, he was residing on the second floor at which time no work was required on his floor. Consequently, the tenant submits that the first notice is clearly retaliatory. The tenant also considered that he was punished by the landlord because of his association with other tenant Andrew Ross whom the landlord was really wanting to evict.
Section 105(1) Residential Tenancies Act 1986 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 [2003] DCR 50, Judge Tuohy considered the provision “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur” to be strong words which set a high standard and most obviously apply to cases of procedural error or discovery of new evidence.
Those words however cannot cover a complaint that Tenancy Tribunal was merely mistaken or wrong in its findings of fact or application of law. Where the grounds relied on in application for rehearing are complaints about legal correctness of decision they should have been dealt with by way of appeal. No distinction can be made between errors of law that are grave enough to constitute a substantial miscarriage of justice and those which are not.

Has a substantial wrong or miscarriage of justice occurred?

The tenant failed to establish the grounds for a rehearing.
There are no new evidence nor materials adduced which might affect the outcome of the previous hearings and final determination of the Tribunal.
The tenant adduced floor plans of the premises and Rae House and Gillies House which are owned by the same landlord. The tenant pointed out that [59] of the Tribunal Order of 1 December 2023 which refers to student tenants on the second floor being given alternative accommodation outside of Rocklands by the same landlord while the building is being refurbished is incorrect; they were merely being relocated from Rae House to adjacent Gillies House which is owned by the same landlord. Both Rae House and Gillies House are within Rocklands compound at 187 Gillies Avenue.
Those floor plans and incorrect reference in the Order to outside accommodation (when it is actually a move from Rae House to adjacent Gillies House) however do not materially affect the ultimate outcome of the original order of 1 December 2024.
The Tribunal’s ultimate finding is that the landlord’s motivation for ending this boarding house tenancy is in undertaking major refurbishment of the premises rather than the tenant’s complaints or exercising his rights under the RTA, and this effectively determines the applications filed herein.
The tenant’s claim that he has been discriminated on grounds of his age was also found to be unsuccessful. The Tribunal was satisfied that the landlord was decanting the entire boarding house for the proposed works to be carried out; this includes the student boarders. The Tribunal found that as a private organisation, the landlord was under no legal nor moral obligation to re-house him to another complex or building owned by or connected to the landlord. The tenant has not shown how he has been treated differently when his boarding house tenancy was terminated because everyone’s tenancy has been terminated, not just his and the other older boarders’ tenancy.
Accordingly, the tenant has not proven his claim that he has been unlawfully discriminated when the landlord ended his tenancy at Rocklands through the second notice to quit issued in October 2023.
The tenant is unhappy with the decision, but this by itself is insufficient for grant of a rehearing. The tenant has since vacated the premises.
Other complaints are made in relation to the tenant’s goal and plan of staying in Rocklands until end January 2024 which has been “changed” and written submissions that “I wouldn’t want to go to a higher court and make more money damages to Bruce Qin, he isn’t my enemy” and “the next round up in District Court will be with a solicitor representing a high cost for Bruce... and it’s good to go rehearing and not go to District Court...as it saves money” are not entirely coherent. However, the gist of it is this: For me its OK, I’m over 65, retired with lots of time. But willing to end this dispute out of court.
Those complaints and submissions may be relevant points for settlement discussion between the parties but are not grounds for a rehearing.
There is nothing before me that suggests any procedural or substantive error that would result in a miscarriage of justice. The grounds relied on in the tenant’s application for rehearing are really complaints about legal correctness of the decision which should be dealt with by way of appeal.
Putting to one side the incoherence of the above grounds in the rehearing application and the informal submission of evidence associated with it, there is nothing before me which affects the outcome of the original order of 1 December 2023.
Following Judge Tuohy’s ruling in McMillan, complaints about legal correctness of a decision should be dealt with by way of appeal rather than an application for rehearing and no distinction can be made between errors of law that are grave enough to constitute a substantial miscarriage of justice and those which are not.
Ultimately, all the material points relied upon by the respondent in the substantive hearing and the present application for rehearing have been duly canvassed, addressed and determined, albeit there were against the tenant in the proceedings.
There remains nothing before the Tribunal that could have affected the outcome of the original hearing.
For those reasons, the rehearing application must fail.

Tenancy Tribunal case 4535869 — Boarding House at Room R91, 187 Gillies Avenue, Epsom, Auckland 1023,

At a glance

Tenancy Tribunal case 4535869 — Boarding House at Room R91, 187 Gillies Avenue, Epsom, Auckland 1023,

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