What was the outcome of Tenancy Tribunal case 4592413?

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

How much money was awarded in case 4592413?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4592413?

The dispute type was not classified.

Where can I read the official tribunal order for case 4592413?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9576937-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4592413?

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

How much money was awarded in case 4592413?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4592413?

The dispute type was not classified.

Where can I read the official tribunal order for case 4592413?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9576937-Tribunal_Order.pdf.

2B Crescent Court, Melville, Hamilton 3206 Tenancy Tribunal Case 4592413 — Tenancy dispute

Order

The application for rehearing is dismissed.

Reasons

The Tribunal has received an application for a rehearing, filed by the landlord. The Tribunal must determine whether a rehearing will be granted. The landlord seeks a rehearing only in relation to part of the order in which the Tribunal had declared that the maximum number of occupants in the tenancy is three.
I convened a telephone hearing on 27 October 2023 to hear from the parties. In attendance were two directors of the landlord company, and the tenant.

BACKGROUND

On 18 July 2023 the Tribunal issued an order following a hearing that same day which considered applications from both the tenant and landlord.
In the application from the landlord, the landlord sought to obtain further rental payments from the tenant, claiming that the tenant had exceeded the maximum number of occupants in the tenancy. The landlord said that the maximum number of occupants in the tenancy were two, but in fact there were three occupants the tenant, her husband and child. The tenant considered that it was always agreed that the maximum number of occupants would be three.
As set out in my decision from 18 July 2023, the clear evidence was that the communications with the landlords letting agent was that there were to be two adults and a child living in the premises, I am certain the agent was aware of that. However the tenancy agreement presented to the tenant for signing was that the tenancy was for one adult and one child (two occupants). When the tenant challenged that (after it was signed), the agent simply responded to the tenant: As your husband is not a New Zealand yet we haven’t added him to the Tenancy – this is our procedure. He can be added at a later date and he can move into the property when he arrives.
This was not conditional on the payment of further rent, the impression given was that it was simply a matter of paperwork to add in the husband.
I concluded that the intention of the parties was that the tenancy had been offered on the basis that there would be three occupants in the premises, and noted in the July order: In light of that finding, I can see no reason to conclude that the written term in the tenancy agreement should prevail over what was clearly the intention of the parties in relation to the number of occupants. I do not consider there was any intention of the parties to limit the occupants in the premises to two (one adult one child).
After receiving the order the landlords have applied for a rehearing, and that is the subject of this decision.

PARTIES CASES

The landlord seeks a rehearing only in relation to order number 2 (the maximum number of tenants) on the following grounds: a. The landlord believed that they only had a limited ability to present their case at the hearing. The landlord states that they were not able to refer to the relevant documents. The landlord considers they were dismissed early from the hearing. b. The tenancy agreement is a written contract, and both parties entered into the agreement freely without misrepresentation, and there were no issues with legality of it. c. The landlord submits that the written contract should stand. The landlord considers that the Tribunal has given too much focus on the ‘intent’ of the parties, and did not correctly consider the wider contract law expectations. It was submitted that this was contrary to the public interest. d. The Tribunals finding was contrary to the evidence on the file.
The tenant does not consider that a rehearing should be granted, and she considers that the order is clear and should remain.

RELEVANT LEGAL CONSIDERATIONS

Section 105 of the Residential Tenancies Act 1986 relates to rehearing’s. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
The applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in the District Court Judgment of Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard, and that: [18] ... They most obviously apply ... to cases of procedural error eg a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available. [19] In my view, however, the words do not cover a complaint that the Tribunal was merely 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. [20] Secondly, if a mere erroneous decision is enough, whether the error is factual or legal or both, it would enable parties to in effect appeal any decision twice: once to the very Tribunal which made it by way of an application for rehearing, and then again to the District Court against the grant or refusal of the application for rehearing. Not only does that 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.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.

ANALYSIS

I must determine whether a rehearing can be granted. I have set out the relevant legal considerations I must apply above, and those were also advised to the parties in advance of the hearing in my earlier direction. In considering the rehearing request, I will address the four grounds advanced by the landlord as follows: The landlord believed that they only had a limited ability to present their case on the day of the hearing. The landlord states that they were not able to refer to the relevant documents. The landlord considers they were dismissed early from the hearing.
The landlord’s position is that they did not have an adequate opportunity to present their case at the hearing, and that I would not allow them a fulsome opportunity to present the evidence they wished to present.
The landlord submitted that the hearing only took an hour. I have not checked the timings with the Registry, but from memory that would seem about right. However, this is not a case of insufficient time being allocated for the hearing, the hearing had been scheduled for a full day, so in theory we could have spent the full day in the hearing if needed.
But there is no procedural expectation on this Tribunal, or any other court or Tribunal that I am aware of, that a hearing must run for the full duration of the time allocated to it. What happens in practice is that the hearing runs until the decision maker considers they have the information they need to make a determination, and for the parties to have a fair opportunity to present their case. Parties to hearings in New Zealand are not given limitless time to present their cases.
In the case of the Tenancy Tribunal, the Residential Tenancies Act 1986 (RTA) requires that the Tribunal act in an expeditious way (see the Title to the RTA, and sections 67, 71, 72, 85 and 96), which must logically extend to the conduct and control of the hearing.
I also note section 97 of the RTA which relates to evidence before the Tribunal, and confirms that: The Tribunal shall have power to refuse to accept any evidence or submission that is irrelevant or repetitious.
It is not uncommon that an adjudicator will decline to accept further submissions or evidence when a party has made the point, or where what is to be presented is not on point. When I step back and consider what occurred at this hearing, I am satisfied that the landlord has had a fair opportunity to present their case, and that includes to have any evidence deemed relevant put before the Tribunal.
I note for completeness that the landlord has not filed any evidence with the rehearing application that would support the potential for a miscarriage of justice or substantial wrong having occurred, beyond stating they have such evidence available. The tenancy agreement is a written contract, and both parties entered into the agreement freely without misrepresentation, and there were no issues with legality of it.
I agree with the landlord the tenancy agreement is a written contract. That said, there is no reason in law that a decision maker like the Tribunal cannot interpret wider evidence to interpret what the terms of the contract are.
In any event if the landlord considers that the Tribunal was wrong in its approach to the law, that is not a matter that could be reconsidered in a rehearing, the landlord needed to appeal the decision to the District Court on appeal. The landlord submits that the written contract should stand. The landlord considers that the Tribunal has given too much focus on the ‘intent’ of the parties, and did not correctly consider the wider contract law expectations. It was submitted that this was contrary to the public interest.
Again that is not a matter that could be considered in a rehearing. If the landlord considered the Tribunal was wrong in how the law has been interpreted, then the landlord needed to file an appeal in the District Court. The Tribunals finding was contrary to the evidence on the file.
Again if the landlord considers the Tribunal misinterpreted the facts, that needed to be appealed to the District Court, and cannot be a matter grounding a rehearing request. Conclusion
There is no substantial wrong or miscarriage of justice established actual or potential, therefore the application for rehearing must be dismissed.

Tenancy Tribunal case 4592413 — Tenancy dispute at 2B Crescent Court, Melville, Hamilton 3206

At a glance

Claims & awards

Tenancy Tribunal case 4592413 — Tenancy dispute at 2B Crescent Court, Melville, Hamilton 3206

At a glance

Claims & awards

Order

Reasons

BACKGROUND

PARTIES CASES

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

BACKGROUND

PARTIES CASES

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions