What was the outcome of Tenancy Tribunal case 4553871?

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

How much money was awarded in case 4553871?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4553871?

The dispute type was not classified.

Where can I read the official tribunal order for case 4553871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9590510-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4553871?

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

How much money was awarded in case 4553871?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4553871?

The dispute type was not classified.

Where can I read the official tribunal order for case 4553871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9590510-Tribunal_Order.pdf.

22 James Walter Place, Mount Wellington, Auckland 1060 Tenancy Tribunal Case 4553871 — Tenancy dispute

Order

The application for rehearing is dismissed.

Reasons

On 6 September 2023 the Tribunal made an order against the tenant for water rates, repairs, and lawn/garden work.
On 19 September 2023 the tenant applied out of time for a rehearing on the grounds that she was not in New Zealand at the time of the hearing.
I held a telephone hearing today to determine whether the Tribunal should grant the tenant’s application for rehearing. Ms Southgate attended the hearing for the landlord.
The tenant emailed the registry before the hearing today to advise that she is in China and could not attend the hearing by phone. She produced evidence to prove her absence from New Zealand on both occasions. Relevant legal considerations
Section 105(1) of the 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.”
In order to find that grounds for a rehearing exist, the applicant does not need to prove that an actual miscarriage of justice or substantial wrong occurred, but merely that prima facie such a situation exists - see Nixon v Brown (1989) DCR 404,406.
In Wellington City Council v McMillan (2003) DCR 50, the Court confirmed that the words “substantial wrong or miscarriage of justice” set a high standard. It said: “They must obviously apply....to cases of procedural error e.g. A hearing which takes place in the absence of a party who has not been given notice of it; or the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may encompass the discovery of new and important evidence not previously available.... In my view, however, the words do not cover a complaint that the Tribunal was 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. Secondly, if a mere erroneous decision is enough, whether the error is factual or legal or both, it would enable the parties to in effect appeal by way of an application for a rehearing, and then again to the District Court against the grant or refusal of the application for rehearing. Not only does this offend the general hierarchical nature of the appeal system, it would also make the time limit for filing notice of appeal against an original decision nugatory.”
The authors of Thomson Reuters (Civil Procedure District Courts & Tribunals- loose leaf TE 4.01) provide examples of when rehearings may be granted. Those examples include: • Where a Tenancy Adjudicator has improperly admitted or rejected evidence • Excessive intervention by the Tenancy Adjudicator • Misconduct by one of the parties • Misconduct by a witness • Where a party has not had the opportunity to cross examine a material witness • The availability of new evidence • Where a party has not received notice of the hearing.
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, that they were not able to properly present their case, or that there is new evidence that was not reasonably available at the first hearing. They will also have to establish that the information that they wish to present could affect 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, that is not sufficient to establish a miscarriage of justice. A rehearing will not be granted just because a party is unhappy with the decision, to give a party a second opportunity to present their case or as an alternative to an appeal.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons the tenant has failed to establish the grounds for a rehearing.
Nothing went wrong with the Tribunal’s procedure at the time of the first hearing. The Notice of Hearing was sent to the tenant’s address for service and to her email address. It is deemed to have been served even if the tenant did not notice it.
The tenant had the option of applying for an adjournment had she monitored her email and arranged for the mail sent to her address for service to be dealt with.
The application for rehearing was made out of time. The Tribunal has a discretion to accept late applications. But this is not a case where the Tribunal considers that it should exercise its discretion to accept the out of time application.
The tenant has again failed to the attend the hearing today for the Tribunal to consider her application for rehearing.
The landlord party’s position must also be considered. It has made written submissions opposing the rehearing application. It is entitled to finality.
The Notice of Hearing for today’s hearing is dated 21 September 2021, yet the tenant has left it until today to advise that she cannot attend the hearing.
Considering that there were no defects in the Tribunal’s procedure at the time of the first hearing and that the rehearing application is out of time, the Tribunal is not persuaded to grant the tenant’s application for rehearing.
The application is dismissed. Comment
In her email today, the tenant mentioned various concerns she had about the tenancy. Those matters could not be addressed on a rehearing because they were not part of the original order.
If the tenant has issues she wants addressed concerning the tenancy, she can make her own application against the landlord. That application would then be set for hearing in the usual way.

Order

The application for rehearing is dismissed.

Reasons

On 6 September 2023 the Tribunal made an order against the tenant for water rates, repairs, and lawn/garden work.
On 19 September 2023 the tenant applied out of time for a rehearing on the grounds that she was not in New Zealand at the time of the hearing.
I held a telephone hearing today to determine whether the Tribunal should grant the tenant’s application for rehearing. Ms Southgate attended the hearing for the landlord.
The tenant emailed the registry before the hearing today to advise that she is in China and could not attend the hearing by phone. She produced evidence to prove her absence from New Zealand on both occasions. Relevant legal considerations
Section 105(1) of the 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.”
In order to find that grounds for a rehearing exist, the applicant does not need to prove that an actual miscarriage of justice or substantial wrong occurred, but merely that prima facie such a situation exists - see Nixon v Brown (1989) DCR 404,406.
In Wellington City Council v McMillan (2003) DCR 50, the Court confirmed that the words “substantial wrong or miscarriage of justice” set a high standard. It said: “They must obviously apply....to cases of procedural error e.g. A hearing which takes place in the absence of a party who has not been given notice of it; or the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may encompass the discovery of new and important evidence not previously available.... In my view, however, the words do not cover a complaint that the Tribunal was 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. Secondly, if a mere erroneous decision is enough, whether the error is factual or legal or both, it would enable the parties to in effect appeal by way of an application for a rehearing, and then again to the District Court against the grant or refusal of the application for rehearing. Not only does this offend the general hierarchical nature of the appeal system, it would also make the time limit for filing notice of appeal against an original decision nugatory.”
The authors of Thomson Reuters (Civil Procedure District Courts & Tribunals- loose leaf TE 4.01) provide examples of when rehearings may be granted. Those examples include: • Where a Tenancy Adjudicator has improperly admitted or rejected evidence • Excessive intervention by the Tenancy Adjudicator • Misconduct by one of the parties • Misconduct by a witness • Where a party has not had the opportunity to cross examine a material witness • The availability of new evidence • Where a party has not received notice of the hearing.
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, that they were not able to properly present their case, or that there is new evidence that was not reasonably available at the first hearing. They will also have to establish that the information that they wish to present could affect 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, that is not sufficient to establish a miscarriage of justice. A rehearing will not be granted just because a party is unhappy with the decision, to give a party a second opportunity to present their case or as an alternative to an appeal.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons the tenant has failed to establish the grounds for a rehearing.
Nothing went wrong with the Tribunal’s procedure at the time of the first hearing. The Notice of Hearing was sent to the tenant’s address for service and to her email address. It is deemed to have been served even if the tenant did not notice it.
The tenant had the option of applying for an adjournment had she monitored her email and arranged for the mail sent to her address for service to be dealt with.
The application for rehearing was made out of time. The Tribunal has a discretion to accept late applications. But this is not a case where the Tribunal considers that it should exercise its discretion to accept the out of time application.
The tenant has again failed to the attend the hearing today for the Tribunal to consider her application for rehearing.
The landlord party’s position must also be considered. It has made written submissions opposing the rehearing application. It is entitled to finality.
The Notice of Hearing for today’s hearing is dated 21 September 2021, yet the tenant has left it until today to advise that she cannot attend the hearing.
Considering that there were no defects in the Tribunal’s procedure at the time of the first hearing and that the rehearing application is out of time, the Tribunal is not persuaded to grant the tenant’s application for rehearing.
The application is dismissed. Comment
In her email today, the tenant mentioned various concerns she had about the tenancy. Those matters could not be addressed on a rehearing because they were not part of the original order.
If the tenant has issues she wants addressed concerning the tenancy, she can make her own application against the landlord. That application would then be set for hearing in the usual way.

Tenancy Tribunal case 4553871 — Tenancy dispute at 22 James Walter Place, Mount Wellington, Auckland 1060

At a glance

Claims & awards

Tenancy Tribunal case 4553871 — Tenancy dispute at 22 James Walter Place, Mount Wellington, Auckland 1060

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