What was Tenancy Tribunal case 4661313 about?

The tribunal order states: The names of both parties and their representatives should be redacted from

How much money was awarded in case 4661313?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4661313?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4661313?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9990487-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4661313 about?

The tribunal order states: The names of both parties and their representatives should be redacted from

How much money was awarded in case 4661313?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4661313?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4661313?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9990487-Tribunal_Order_Redacted.pdf.

61 Aeroview Drive, Beach Haven, Auckland 0626 Tenancy Tribunal Case 4661313 — Exemplary damages

Order

The names of both parties and their representatives should be redacted from the Order.
The application for rehearing is dismissed.

Reasons

Both parties attended the hearing through their approved representatives.
On 23 November 2023 the Tribunal made an Order for payment of compensation and exemplary damages by the landlord to the tenant. The Order included a finding that the tenant’s claim that these were unlawful premises, was not proved.
On 29 November 2023, the tenant applied for a rehearing on the grounds that additional information from the Council file had been obtained by the tenant which wasn’t available at the hearing, and which may have affected the Tribunal’s finding as to the lawfulness of the premise, had it been available.
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.

Has a substantial wrong or miscarriage of justice occurred?

At the hearing the tenant had produced a letter from the council confirming that: “Auckland Council does not have any records of consents or permits for the work done in the downstairs “unit” The original plans only show the upstairs Unit.”
The landlord’s representatives had also consulted with the Council and were advised, after the date of the above letter and by the same Council officer, that if the change of use occurred before the Building Act 2004 came into effect, the change of use may not be unlawful but requires a “safe and sanitary” assessment to be completed in respect of the alterations, to ensure compliance with current Code requirements. The landlord’s representatives are unsure of exactly when the flat was created but believe it may have been around 30 years ago.
The tenant’s representative says that she was entitled to expect that the landlord would make the full Council file available to the Tribunal but didn't so. She says that she has now obtained the file which shows that there are no consents at all held for the conversion.
The reason for my finding that the tenant had not proved that the premises were unlawful, was because it seemed more likely than not that the change of use involved in converting the downstairs rea into a self contained flat, had occurred many years ago and well before the Building Act 2004 came into effect.
I made that finding considering it proved that no consent had ever been issued for that conversion and change of use.
While I accept that the full content of the Council file is relevant and was not made available by the landlord for the hearing, that new evidence confirms the position as I understood it to be and I do not consider there is any significant possibility that had it been available for the hearing, the findings would have been different.
That being so I do not consider that there is a risk of a miscarriage of justice having occurred through unavailability of the council file at the hearing.
It follows that the application for rehearing must be declined.

Order

The names of both parties and their representatives should be redacted from the Order.
The application for rehearing is dismissed.

Reasons

Both parties attended the hearing through their approved representatives.
On 23 November 2023 the Tribunal made an Order for payment of compensation and exemplary damages by the landlord to the tenant. The Order included a finding that the tenant’s claim that these were unlawful premises, was not proved.
On 29 November 2023, the tenant applied for a rehearing on the grounds that additional information from the Council file had been obtained by the tenant which wasn’t available at the hearing, and which may have affected the Tribunal’s finding as to the lawfulness of the premise, had it been available.
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.

Has a substantial wrong or miscarriage of justice occurred?

At the hearing the tenant had produced a letter from the council confirming that: “Auckland Council does not have any records of consents or permits for the work done in the downstairs “unit” The original plans only show the upstairs Unit.”
The landlord’s representatives had also consulted with the Council and were advised, after the date of the above letter and by the same Council officer, that if the change of use occurred before the Building Act 2004 came into effect, the change of use may not be unlawful but requires a “safe and sanitary” assessment to be completed in respect of the alterations, to ensure compliance with current Code requirements. The landlord’s representatives are unsure of exactly when the flat was created but believe it may have been around 30 years ago.
The tenant’s representative says that she was entitled to expect that the landlord would make the full Council file available to the Tribunal but didn't so. She says that she has now obtained the file which shows that there are no consents at all held for the conversion.
The reason for my finding that the tenant had not proved that the premises were unlawful, was because it seemed more likely than not that the change of use involved in converting the downstairs rea into a self contained flat, had occurred many years ago and well before the Building Act 2004 came into effect.
I made that finding considering it proved that no consent had ever been issued for that conversion and change of use.
While I accept that the full content of the Council file is relevant and was not made available by the landlord for the hearing, that new evidence confirms the position as I understood it to be and I do not consider there is any significant possibility that had it been available for the hearing, the findings would have been different.
That being so I do not consider that there is a risk of a miscarriage of justice having occurred through unavailability of the council file at the hearing.
It follows that the application for rehearing must be declined.

Tenancy Tribunal case 4661313 — Exemplary damages at 61 Aeroview Drive, Beach Haven, Auckland 0626

At a glance

Tenancy Tribunal case 4661313 — Exemplary damages at 61 Aeroview Drive, Beach Haven, Auckland 0626

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions