What was the outcome of Tenancy Tribunal case 4612790?

The tribunal order states: No suppression orders apply around publication of this

How much money was awarded in case 4612790?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4612790?

The dispute type was not classified.

Where can I read the official tribunal order for case 4612790?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9520856-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4612790?

The tribunal order states: No suppression orders apply around publication of this

How much money was awarded in case 4612790?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4612790?

The dispute type was not classified.

Where can I read the official tribunal order for case 4612790?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9520856-Tribunal_Order.pdf.

63 Jean Mackay Place, Dairy Flat, RD 4, Dairy Flat 0794 Tenancy Tribunal Case 4612790 — Tenancy dispute

Order

No suppression orders apply around publication of this decision.
The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which I conducted by phone. Ms Ataie represented the landlord.
The tenant has applied for a rehearing of part of the order made by the Tribunal dated 14 August 2023. The Tribunal dismissed the tenant’s application. Relevant law
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 Tribunals 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.
The tenant submitted that my decision was wrong on two issues – power usage and substandard (unrepaired) stock fencing.
I addressed the issue of high power costs at paragraphs 14-17 of my decision. The tenant said that her power company contacted her to query the high power usage and she did all the recommended checks. She said the power company would not become involved in any dispute about the power usage.
The situation now is the same as it was at the hearing. The tenant has no objective evidence to establish any landlord breach so far as power consumption is concerned. Without some objective evidence of a landlord breach (the onus of proof resting with the tenant) the Tribunal could not have made a different order when it did, nor could it now.
None of the criteria for a rehearing is met so far as the claim for compensation for high electricity costs is concerned
I addressed the issue of the fences at paragraphs 22-28 of my decision. The tenant said I had erred because I suggested that the amendment to the tenancy agreement allowing them to keep stock was made after they moved into the tenancy. In fact, it was made before they moved in. She said there was no mention that the paddocks were not fit for purpose.
As I noted, the tenant had the opportunity to inspect the fences at the property before the start of the tenancy. And while I accept that the amendment occurred earlier than I thought, the tenancy agreement did not provide that the paddocks had to be fenced to a standard where horses could be kept. The landlord agreed to let the tenant have stock, but that did not then impose a duty to ensure the fences were stock proof.
The tenant has not established a substantial wrong or miscarriage of justice about my finding that the landlord committed no breach by not ensuring the fences were stock proof. That the tenant disagrees with my finding is grounds for an appeal, but not grounds for a rehearing. Result
For the reasons given I find that the tenant has not established grounds for a rehearing. The Tribunal heard her evidence and submissions and made its decision based on that.
That the Tribunal incorrectly noted that the amendment to the tenancy agreement allowing animals to be kept was made before the tenancy started, not after, is not material given the reasons that were explained for dismissing the tenant’s claim for compensation.
The application for rehearing is dismissed.

Order

No suppression orders apply around publication of this decision.
The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which I conducted by phone. Ms Ataie represented the landlord.
The tenant has applied for a rehearing of part of the order made by the Tribunal dated 14 August 2023. The Tribunal dismissed the tenant’s application. Relevant law
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 Tribunals 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.
The tenant submitted that my decision was wrong on two issues – power usage and substandard (unrepaired) stock fencing.
I addressed the issue of high power costs at paragraphs 14-17 of my decision. The tenant said that her power company contacted her to query the high power usage and she did all the recommended checks. She said the power company would not become involved in any dispute about the power usage.
The situation now is the same as it was at the hearing. The tenant has no objective evidence to establish any landlord breach so far as power consumption is concerned. Without some objective evidence of a landlord breach (the onus of proof resting with the tenant) the Tribunal could not have made a different order when it did, nor could it now.
None of the criteria for a rehearing is met so far as the claim for compensation for high electricity costs is concerned
I addressed the issue of the fences at paragraphs 22-28 of my decision. The tenant said I had erred because I suggested that the amendment to the tenancy agreement allowing them to keep stock was made after they moved into the tenancy. In fact, it was made before they moved in. She said there was no mention that the paddocks were not fit for purpose.
As I noted, the tenant had the opportunity to inspect the fences at the property before the start of the tenancy. And while I accept that the amendment occurred earlier than I thought, the tenancy agreement did not provide that the paddocks had to be fenced to a standard where horses could be kept. The landlord agreed to let the tenant have stock, but that did not then impose a duty to ensure the fences were stock proof.
The tenant has not established a substantial wrong or miscarriage of justice about my finding that the landlord committed no breach by not ensuring the fences were stock proof. That the tenant disagrees with my finding is grounds for an appeal, but not grounds for a rehearing. Result
For the reasons given I find that the tenant has not established grounds for a rehearing. The Tribunal heard her evidence and submissions and made its decision based on that.
That the Tribunal incorrectly noted that the amendment to the tenancy agreement allowing animals to be kept was made before the tenancy started, not after, is not material given the reasons that were explained for dismissing the tenant’s claim for compensation.
The application for rehearing is dismissed.

Tenancy Tribunal case 4612790 — Tenancy dispute at 63 Jean Mackay Place, Dairy Flat, RD 4, Dairy Flat 0794

At a glance

Claims & awards

Tenancy Tribunal case 4612790 — Tenancy dispute at 63 Jean Mackay Place, Dairy Flat, RD 4, Dairy Flat 0794

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