What was the outcome of Tenancy Tribunal case 4609511?

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

How much money was awarded in case 4609511?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4609511?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4609511?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9553319-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4609511?

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

How much money was awarded in case 4609511?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4609511?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4609511?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9553319-Tribunal_Order.pdf.

5A Meola Road, Westmere, Auckland 1022 Tenancy Tribunal Case 4609511 — Rent arrears

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which I conducted by phone.
On 2 October 2023 the Tribunal made an order for the tenant to pay rent arrears and utility costs to the landlord.
Upon receiving the order, the tenant (Mr Schulmeister) applied for a rehearing on the grounds that the landlord has agreed that the tenants could leave the fixed term tenancy following a burglary (before the notice period they gave) and would not be charged for rent because the premises would be let as AirBNB.
The tenant wants the rent arrears order to be quashed. 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 - Nixon v Brown (1989) DCR 404,406.
In Wellington City Council v McMillan (2003) DCR 50, His Honour Judge Touhy confirmed that the words “substantial wrong or miscarriage of justice” set a high standard. He 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.
Although the tenant says the landlord agreed to end the tenancy after a burglary at the premises with no further rent liability, the landlord denies that.
Ms Rotherham, for the landlord company, said she agreed to try and do what she could to reduce the tenant’s liability for rent. Because of the holiday period she was unable to do so.
Ms Rotherham said she never promised to end the tenancy before the period of notice the tenants had already given.
The evidence today is no different from the evidence I heard at the substantive hearing.
Each party has a different version of events. There is no documentary evidence to support a finding that the tenants were released from the tenancy after the burglary, and before their notice period had expired. The tenant says one thing, the landlord another.
Nothing went wrong with the Tribunal’s process. Both parties gave evidence and made submissions and the Tribunal issued a decision.
That the tenant does not agree with, or accept, the decision is not a ground for a rehearing. It is a ground for an appeal.
The tenant has not put forward anything that would establish grounds for a rehearing to be granted.
I dismiss the application for rehearing.

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which I conducted by phone.
On 2 October 2023 the Tribunal made an order for the tenant to pay rent arrears and utility costs to the landlord.
Upon receiving the order, the tenant (Mr Schulmeister) applied for a rehearing on the grounds that the landlord has agreed that the tenants could leave the fixed term tenancy following a burglary (before the notice period they gave) and would not be charged for rent because the premises would be let as AirBNB.
The tenant wants the rent arrears order to be quashed. 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 - Nixon v Brown (1989) DCR 404,406.
In Wellington City Council v McMillan (2003) DCR 50, His Honour Judge Touhy confirmed that the words “substantial wrong or miscarriage of justice” set a high standard. He 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.
Although the tenant says the landlord agreed to end the tenancy after a burglary at the premises with no further rent liability, the landlord denies that.
Ms Rotherham, for the landlord company, said she agreed to try and do what she could to reduce the tenant’s liability for rent. Because of the holiday period she was unable to do so.
Ms Rotherham said she never promised to end the tenancy before the period of notice the tenants had already given.
The evidence today is no different from the evidence I heard at the substantive hearing.
Each party has a different version of events. There is no documentary evidence to support a finding that the tenants were released from the tenancy after the burglary, and before their notice period had expired. The tenant says one thing, the landlord another.
Nothing went wrong with the Tribunal’s process. Both parties gave evidence and made submissions and the Tribunal issued a decision.
That the tenant does not agree with, or accept, the decision is not a ground for a rehearing. It is a ground for an appeal.
The tenant has not put forward anything that would establish grounds for a rehearing to be granted.
I dismiss the application for rehearing.

Tenancy Tribunal case 4609511 — Rent arrears at 5A Meola Road, Westmere, Auckland 1022

At a glance

Tenancy Tribunal case 4609511 — Rent arrears at 5A Meola Road, Westmere, Auckland 1022

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions