What was the outcome of Tenancy Tribunal case 4552929?

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

How much money was awarded in case 4552929?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4552929?

The primary dispute was Rent arrears. Related themes: State of repair, Healthy homes.

Where can I read the official tribunal order for case 4552929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9330722-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4552929?

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

How much money was awarded in case 4552929?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4552929?

The primary dispute was Rent arrears. Related themes: State of repair, Healthy homes.

Where can I read the official tribunal order for case 4552929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9330722-Tribunal_Order.pdf.

Unit/Flat 718, 6 Dockside Lane, Auckland Central, Auckland Tenancy Tribunal Case 4552929 — Rent arrears

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Order

The application for a rehearing is dismissed.

The stay of proceedings is withdrawn.

The tenancy is terminated and possession of the premises at Unit/Flat 718, 6 Dockside Lane, Auckland Central is granted to Quinovic Property Management Limited El amour Limited at 11.59 am on Monday 4 September 2023.

The Tribunal order in this matter dated 18 July 2023, is otherwise confirmed. The tenant is also to pay any rent arrears which may accrue between 18 July 2023 and 4 September 2023.

Reasons

Both parties attended this rehearing consideration teleconference on 23 August 2023.

On 18 July 2023, the Tribunal made orders ; • Terminating the tenancy and granting possession to the landlord on Thursday 27 July 2023. • Ordering the tenant to pay rent arrears of $2,380.00 for the period ending 27 July 2023. • Reimbursement of the filing fee.

On 19 July 2023, the tenant applied for a rehearing on the grounds that; • The adjudicator did not consider all of the information and evidence that had been submitted by the tenant. • The adjudicator did not give the tenant the chance to go through the facts submitted by the tenant. • The tenant was not given the chance to plead her case. • The order was provided to the tenant within an hour of the hearing being completed.

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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons, the tenant has failed to establish the grounds for a rehearing. New Evidence

Parties to a Tenancy Tribunal dispute are by way of natural justice required to give the other party notice of their claim prior to a hearing.

In this matter, the landlord filed applications for termination of the tenancy, rent arrears and reimbursement of the filing fee. The landlord application was served on the tenant.

The tenant filed a cross claim. In the cross claim, the tenant said that she had made enquiries of the landlord as to the amount of rent owed and that the landlord response was rude. In her application the tenant said; “ I am making this cross application due to the nature of the email I received from Quinovic today I have called and spoke to the tribunal and it was recommended that I apply for a cross application due to the way I have been treated no one should be treated like this for asking a simple question”(sic).

Essentially, the tenant was claiming that there had been a breach of her quiet enjoyment of the premises by the landlord. The cross claim was served on the landlord.

Much of the evidence filed in support of the tenant’s rehearing application is unrelated to the tenant claim filed with the Tribunal and heard on 18 July 2023. That evidence relates to concerns with the building and in particular, the lift, heating, the time taken for repairs, repairs to tiling and the like.

That evidence would have been relevant to claims by the tenant that the landlord had failed to maintain the premises (see section 45(1)(b) Residential Tenancies Act 1986 (“RTA”), breaches of the healthy homes standards or an application for work orders. Those were not matters before the Tribunal when this matter was heard on 18 July 2023. That does not of course prevent the tenant from filing an application with the Tribunal for those matters now. Those claims and the evidence which they support are not relevant for the purposes of this rehearing application.

The new evidence presented by the tenant does not relate to the claim filed by the tenant. A rehearing is not an opportunity for a party to have new claims considered.

For new evidence to be accepted as a ground for a rehearing, the evidence must be evidence that would not have been reasonably available to the tenant at the time of the first hearing. The evidence filed gives every appearance of being evidence that would have been available at the first hearing. The tenant has not explained why the evidence filed by the tenant in support of this rehearing application would not reasonably have been available to her at the first hearing.

The application as it relates to new evidence is dismissed. Payment of rent

The tenant says that the Tribunal was wrong in saying in the order that; “In light of arrears in the past, I have no confidence that the tenant would make sure that rent was paid on time and in full in the future.”

The tenant says that the Tribunal was wrong, as she had paid all rent on time and in full since the hearing on 18 July 2023. I record that the stay of proceedings granted in this matter was conditional upon the tenant continuing to pay rent until the time of this hearing.

The statement in the order was made taking into account past events and in particular the lengthy period since January 2023 during which rent was in arrears.

The tenant says that problems with rent have only arisen since January 2023. The Tribunal accepts that health issues have been at the heart of her financial problems, rather than simply not caring whether rent is paid or not. The tenant is not as she put it “a bad person.” The failure to pay rent as required, was as a result of matters that were beyond her control. Unfortunately, the difficult personal circumstances of the tenant are not grounds for the non-payment of rent.

That the tenant may not agree with the order, or is not happy with the order are not grounds for a rehearing.

The tenant said she did not understand the rent arrears order. To clarify, the rent was in arrears by $1,700.00 on 19 July 2023 (as per the landlord rent summary). The tenancy was terminated on 27 July 2023 (7 days later). The weekly rent is $680.00.The arrears amount plus one further week amounted to $2,380.00. Procedure.

The tenant says that she did consider that she was given the chance to be heard at the first hearing.

The process adopted by the Tribunal in this hearing was to have the landlord present its claim first. The tenant was then given the opportunity to cross examine the landlord and then to provide evidence relating to the landlord claim. The final act of the landlord claim was to give the landlord the opportunity to cross examine the tenant.

The tenant claim was then heard with the order of speaking and cross examination reversed so that the process began with the tenant presenting her claim. The landlord then has the opportunity to cross examine the tenant followed by presenting its evidence. The hearing finished with the tenant being given the chance to cross examine the landlord.

At the end of each stage of the process, the tenant was asked if she had anything further to add.

The tenant accepted at the rehearing that she had been given the opportunity to respond to the landlord evidence. The tenant said that she recalled talking about her concerns in dealing with the landlord to try to find out how much rent was owed.

At the rehearing, the tenant said that she had been upset during the initial hearing and had been unable to find the words to explain herself. In hindsight, the tenant may have wanted to say more at that hearing, but that of itself is not a ground to have the matter reheard.

The tenant was given every opportunity to present her case. That opportunity can be taken or not by a party. In this matter, the opportunity was not taken by the tenant.

The tenant says that the order in this matter was sent to the parties within an hour of the hearing being completed. The inference being that insufficient consideration was given to the order. The hearing was brief and the claims reasonably simple. That is not a ground for a rehearing.

To summarise; • The new evidence presented does not relate to the claim filed by the tenant. A rehearing is not an opportunity for a party to have new claims considered. • The new evidence was evidence reasonably available to the tenant at the first hearing. • The procedure adopted by the Tribunal to hear the matters was procedurally fair.

The application is dismissed.

The stay of proceedings is withdrawn.

The termination order is confirmed and possession of the premises is granted to the landlord at 11.59 am on Monday 4 September 2023.

Order