What was Tenancy Tribunal case 4571772 about?

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

How much money was awarded in case 4571772?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4571772?

The dispute type was not classified.

Where can I read the official tribunal order for case 4571772?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9672608-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4571772 about?

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

How much money was awarded in case 4571772?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4571772?

The dispute type was not classified.

Where can I read the official tribunal order for case 4571772?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9672608-Tribunal_Order_Redacted.pdf.

4 Athenic Avenue, Lynfield, Auckland 1042 Tenancy Tribunal Case 4571772 — Tenancy dispute

Order

The application for rehearing is dismissed.
The stay of proceedings granted on 5 October 2005 is now lifted and the Bond Centre is to pay the bond to the parties, apportioned as directed in the Tribunal Order dated 21 September 2023.

Reasons

Both parties attended the hearing to consider whether a rehearing should be granted. The hearing proceeded by phone. The tenant confirmed that he had authority to represent his wife.
On 21 September 2023 the Tribunal made an order for the Bond Centre to pay the bond immediately apportioned as follows:
On 27 September 2023, the landlord applied for a rehearing on the grounds that based on the pre-inspection photos (filed with the rehearing application): a. The tenants had not left the property “clean and tidy”; b. There were no marks on the carpet at the beginning of the tenancy; and c. Before the tenants moved in the kitchen benchtop was in good condition with no marks.
Although it was not referred to in the application for a re-hearing, at the hearing to determine whether there should be a rehearing the landlord also stated that they had believed that there was an agreement with the tenant that they would compensate the landlord for the accepted damage and so they did not agree that the Tribunal should have applied depreciation to the amount of compensation ordered.
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 landlord has failed to establish the grounds for a rehearing.
This was a claim by the landlord and accordingly it was the landlord who had the onus to prove their claims.
When seeking compensation for damage the landlord must prove that the damage was caused during the tenancy.
In this case the landlord did not provide any ingoing inspection photos and so were unable to prove that the claimed damage was caused during the tenancy. The landlord did not provide any explanation as to why the photos were not provided at the first hearing.
The landlord filed ingoing inspection photos with the rehearing application to prove that various damage was caused during the tenancy. The tenant disputed that the photos were in fact ingoing inspection photos and said that the photos were taken when the property was renovated, and in fact another tenant had lived there for six months before they moved in.
I do not consider the ingoing inspection photos to be new evidence regardless of when they were taken (either at the outset of the tenancy or six months prior). They were clearly in existence and so were “reasonably available” and could have been produced at the original hearing. They are not “new” evidence.
The Tribunal hears a high volume of cases and it is imperative that parties attend the hearing with the evidence necessary to prove their claim. The Tribunal will not allow the parties to file evidence after the hearing and seek a rehearing on that basis unless the evidence is new evidence that was not reasonably available at the first hearing. This is not the case here.
The landlord also claimed that because the tenant had accepted liability for specific damage the Tribunal should not have applied depreciation to the amount ordered by way of compensation.
This submission was not based on the evidence given at the hearing. At the hearing the tenant accepted liability for some damage but disputed the amount of compensation sought. This issue was then left to the Tribunal to determine on the evidence available.

Reasons

Both parties attended the hearing to consider whether a rehearing should be granted. The hearing proceeded by phone. The tenant confirmed that he had authority to represent his wife.

On 21 September 2023 the Tribunal made an order for the Bond Centre to pay the bond immediately apportioned as follows:

On 27 September 2023, the landlord applied for a rehearing on the grounds that based on the pre-inspection photos (filed with the rehearing application): a. The tenants had not left the property “clean and tidy”; b. There were no marks on the carpet at the beginning of the tenancy; and c. Before the tenants moved in the kitchen benchtop was in good condition with no marks.

Although it was not referred to in the application for a re-hearing, at the hearing to determine whether there should be a rehearing the landlord also stated that they had believed that there was an agreement with the tenant that they would compensate the landlord for the accepted damage and so they did not agree that the Tribunal should have applied depreciation to the amount of compensation ordered.

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 landlord has failed to establish the grounds for a rehearing.

This was a claim by the landlord and accordingly it was the landlord who had the onus to prove their claims.

When seeking compensation for damage the landlord must prove that the damage was caused during the tenancy.

In this case the landlord did not provide any ingoing inspection photos and so were unable to prove that the claimed damage was caused during the tenancy. The landlord did not provide any explanation as to why the photos were not provided at the first hearing.

The landlord filed ingoing inspection photos with the rehearing application to prove that various damage was caused during the tenancy. The tenant disputed that the photos were in fact ingoing inspection photos and said that the photos were taken when the property was renovated, and in fact another tenant had lived there for six months before they moved in.

I do not consider the ingoing inspection photos to be new evidence regardless of when they were taken (either at the outset of the tenancy or six months prior). They were clearly in existence and so were “reasonably available” and could have been produced at the original hearing. They are not “new” evidence.

The Tribunal hears a high volume of cases and it is imperative that parties attend the hearing with the evidence necessary to prove their claim. The Tribunal will not allow the parties to file evidence after the hearing and seek a rehearing on that basis unless the evidence is new evidence that was not reasonably available at the first hearing. This is not the case here.

The landlord also claimed that because the tenant had accepted liability for specific damage the Tribunal should not have applied depreciation to the amount ordered by way of compensation.

This submission was not based on the evidence given at the hearing. At the hearing the tenant accepted liability for some damage but disputed the amount of compensation sought. This issue was then left to the Tribunal to determine on the evidence available.

Tenancy Tribunal case 4571772 — Tenancy dispute at 4 Athenic Avenue, Lynfield, Auckland 1042

At a glance

Claims & awards

Tenancy Tribunal case 4571772 — Tenancy dispute at 4 Athenic Avenue, Lynfield, Auckland 1042

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions