Published tribunal order
Tenancy Tribunal case 4642649 — State of repair at Unit/Flat 1, 17 Dunraven Place, Torbay, Auckland 0630
Decided 9 Apr 2024 · Published 9 Apr 2024 · Application 4642649
Tenant favoured
- State of repair
Order
- The application for rehearing is dismissed.
- The Tribunal’s 2 February 2024 Order stands.
Reasons
- Both parties attended the hearing
- On 2 February 2024 the Tribunal made an order that Burger Holdings Limited, Christiaan Burger must pay Susan Veronica Kelly $3,235.56 immediately, calculated as shown in table below. DescriptionLandlordTenant Rent arrears (to 29/06/2023)$460.00 Water rates (to 29/06/2023)$54.44 Exemplary damages: (failure to maintain landing and stairs to bottom of garden and retaining wall) $2,400.00 Exemplary damages: (failure to maintain ranch slider) $1,200.00 Exemplary damages: (failure to provide HHS information) $150.00 Total award$514.44$3,750.00 Net award $3,235.56 Bond $1,800.00 Total payable by Landlord to Tenant $3,235.56
- On 6 February 2024 the landlord applied for a rehearing on the grounds that: a. It had important new information that was not available to it at the original hearing that would have an important influence on the matter of the ranch slider and the stairs/retaining wall; b. The Court staff wrongly advised it that it had to produce quotes and not invoices to support its compensation claims for vacated damages; and c. The Adjudicator improperly rejected its photographic evidence that proved it had promptly stabilised the stairs with a post and that it acknowledged the presence of rot but did not initially deem it to be a hazard.
- 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. Neither of these grounds has been proven by the tenant in her rehearing application.
- 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 and its claim is dismissed.
- No evidence has been provided by the landlord that supports a claim that an error in process or a substantial miscarriage of justice has occurred that would justify the granting of a rehearing.
- The landlord did not present any important new evidence at today’s hearing that it could not have obtained with reasonable due diligence for the original hearing. The evidence it provided today shows that it went out to get new evidence after the original order as it had felt “overconfident in its position” and had not considered it would require such evidence to defend the tenant’s claims as it “didn’t think her claims had merit” because it “had done everything to address issues” as she brought them to its attention.
- The landlord was told during the original hearing that when it fixes the damage, it alleges the tenant caused intentionally or carelessly, it can make a further application to the Tribunal to have its claim for vacated arrears compensation heard. This includes any cost it incurs for removing the “significant pile of dirt” it says the tenant left at the end of the tenancy. The tenant did not respond to these claims during the original hearing as I could not consider the claims based on quotes only. In addition, at today’s hearing the tenant confirmed during the landlord had been informed by the mediator that he had to present paid invoices and not quotes to the Tribunal to claim compensation. Not understanding that it cannot be compensated for costs it has not already incurred is not a ground for a rehearing.
- The Tribunal confirms it consider all evidence submitted by both parties, and the landlord has confirmed it was not happy with the Tribunal’s decision, so the Adjudicator could not have fully considered its evidence. A rehearing is not an opportunity for a party to that is unhappy with a Tribunal decision to have a second opportunity to present and/or relitigate its case.