Published tribunal order
Tenancy Tribunal case 4587354 — Exemplary damages at 326 Te Toro Road, Pollok, RD 4, Pollok 2684
Decided 29 Aug 2024 · Published 29 Aug 2024 · Application 4587354
- Exemplary damages
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the Tenant’s name and identifying details.
- The Tribunal’s earlier order of 11 April 2024 is replaced with these orders.
- must pay immediately, calculated as shown in table below:
- The bond of $970.00 (bond number 5415088-010) is to remain with the bond centre pending disposal of the landlord’s application 4979069 recently filed with the Tribunal.
- The monies paid by the landlord to the Court’s civil enforcement division are to remain with the Courts pending disposal of the landlord’s application 4979069 filed with the Tribunal.
- The parties’ applications for rehearing are otherwise dismissed subject to the above orders being made and previous order of 11 April 2024 being amended as above.
Reasons
- On 11 April 2024, the Tribunal made these orders in favour of the tenant: a. compensation for breach of quiet enjoyment, in breach of s38(2) RTA; b. exemplary damages for issuing trespass notice (purporting to terminate tenancy), in breach of s60AA RTA; and c. exemplary damages for harassment, in breach of s38(3) RTA
- Both parties applied for a rehearing of the order.
- The tenant’s grounds for rehearing are that her application for refund of her bond of $970.00 and exemplary damages for non-lodgment of the bond has not been heard and no compensation was awarded for her lost chickens. The tenant claims that police records would contain evidence which would prove her claim that the landlord has taken her chickens.
- The landlord’s ground for rehearing is that because the tenant has already vacated on or before 26 May 2023, thereby the awards of exemplary damages against the landlord for unlawful termination of the tenancy were unjust and incorrect.
- 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 landlord has failed to establish the grounds for a rehearing.
- The new evidence adduced in the form of the neighbour’s written statement does not affect the outcome of the previous hearing and awards of exemplary damages for unlawful termination. The neighbour’s hearsay evidence that the tenant was overheard saying in late May 2023 that she was “leaving anyway” does not point to a specific date that the tenant is said to be leaving. The uncontroverted evidence remains that the tenant’s belongings were still left on the property at the time the landlord caused the issuance of trespass notices onto the tenant in July 2023.
- The reasons for my findings and conclusion in the order of 11 April 2024 that the landlord has acted unlawfully in ending the tenancy and securing possession without an order of the Tribunal remain applicable.
- The landlord’s grounds in support of the rehearing application are really complaints about correctness of the decision.
- 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.
- For those reasons, the rehearing application by the landlord must fail.
- Apart from the tenant’s ground for rehearing pertaining to the bond lodgment, the tenant’s submission that she has evidence from police records supporting that the landlord has taken her chickens also fails.
- There remains no new evidence nor material which might support the tenant’s allegation that the landlord has taken her chickens.
- Only the claim to do with the bond raised by the tenant’s rehearing application is successful.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- By failing to lodge the bond during the entire tenancy, I find the landlord has committed an unlawful act.
- Having heard from the landlord at the hearing to consider the rehearing application on 20 August 2024, I find that an award of exemplary damages of $450.00 against the landlord is appropriate. The landlord says that the tenant has not signed the bond lodgment form at the material time. I note that the landlord has since lodged the bond of $970.00 under bond number 5415088-010. In coming to the award of $450.00, I took into account the landlord’s intent, the effect of the unlawful act, the interests of the tenant, and the public interest under section 109(3) RTA. Notably, the bond has now been lodged. Conclusion
- With the additional award of exemplary damages for non-lodgment of bond in favour of the tenant, I replace my earlier order of 11 April 2024 with the above orders for the landlord to pay the tenant $5,970.44.
- The landlord has since filed application number 4979069 for rent arrears and other orders. The landlord has also paid monies into Court in furtherance of the tenant’s enforcement proceedings of my 11 April 2024 order.
- In light of the landlord’s application number 4979069 which has yet to be scheduled/heard, I consider it appropriate that the bond of $970.00 should remain with the bond centre pending disposal of the landlord’s application.
- Similarly, I consider it appropriate that monies paid into Court should remain with the Courts pending disposal of the landlord’s application.
- In the upshot, the parties’ applications for rehearing are otherwise dismissed subject to the above orders being made and previous order of 11 April 2024 being amended as set out above.