What was the outcome of Tenancy Tribunal case 4664991?

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

How much money was awarded in case 4664991?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4664991?

The primary dispute was Smoke alarms. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4664991?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10419208-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4664991?

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

How much money was awarded in case 4664991?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4664991?

The primary dispute was Smoke alarms. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4664991?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10419208-Tribunal_Order.pdf.

Unit/Flat 25, 3 Hulme Place, Henderson, Auckland 0612 Tenancy Tribunal Case 4664991 — Smoke alarms

Order

The application for rehearing is dismissed.
The stay ordered is lifted, meaning the tenant may enforce the original order.

Reasons

The Tribunal must consider an application for rehearing filed by the landlord. A telephone hearing was convened today on 5 June 2024 to consider that application.

BACKGROUND

In terms of this rehearing request, the background can be summarised succinctly as follows: a. The tenancy commenced in 2016, ending in August 2023. b. Both parties filed applications with the Tribunal seeking various orders against each other. c. The Tribunal heard those applications over two days on 8 and 9 April 2024, and a written decision was issued on 9 April 2024. d. The landlord has applied for a rehearing. e. A telephone hearing was convened on 5 June 2024 to consider the rehearing application. LANDLORD’S POSITION
Ms Langdon submitted that a rehearing should be granted for these reasons: a. There is evidence that smoke alarms have been removed. b. There is evidence around work for the Healthy Homes Standards and other work that should be reconsidered. c. In relation to the wood stored on the premises, there is evidence the tenants we using the wood, it was not impacting their quiet enjoyment contrary to the Tribunal’s finding. d. There is evidence the tenants were using an undamaged clothesline. e. There is evidence that the buxus plants were in the outside area and they were removed by the tenants. f. The carpet has been damaged. g. There is grease throughout the hob, and the plumber does not consider there is fair wear and tear, and the tenants must have used chemicals on the toilet. h. There is evidence from the tenant’s sister who has inspected the premises, there was no rubbish no rubbish and working smoke alarms at the start of the tenancy. i. There is evidence from the insurance assessor showing that their opinion should have been accepted by the Tribunal.
I raised with the landlord that I could not grant a rehearing just because she considered the original order or findings were wrong, and I asked why she did not present this evidence at the hearing. The landlord advised that her sister works in Tauranga and likewise the professionals were working and therefore engaged at the time of the hearing. The landlord states that she thought she had enough evidence to support her case.
The landlord also submitted that it is not clear why the insurance assessor’s opinion has not been accepted.
The landlord considers that the tenant has not provided evidence in advance and the tenant’s evidence should not therefore be accepted. TENANT’S POSITION
The tenant’s position is that what the landlord has raised at the hearing today has been raised at the original 2 day hearing, and she is not sure why the tenant is raising this now a further time.
The tenant considers the hearing was fair.
In short, the tenant was not supportive of the landlord’s rehearing request.

RELEVANT LAW

Section 105 of the Residential Tenancies Act 1986 relates to rehearings. 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.”
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. In Jemma Trust v Rutherford (DC North Shore, CIV-2009-044-2056, 11 December 1999), the District Court quoted an extract from the Court of Appeal outlining the relevant considerations: The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite party is on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial....While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling.
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 have set out the relevant law that applies to rehearings above. In short, re- hearings are a safety measure should something have gone wrong with the hearing, normally on a procedural basis, in which case a rehearing can be approved so that the matter then returns to the Tribunal for a further hearing.
I have considered the submissions from the landlord, and find that no procedural issues have been identified, and I cannot see any potential for a substantial wrong or miscarriage of justice to justify a rehearing, for these reasons.
On 13 May 2024 I issued a direction that a telephone hearing be scheduled in order to consider the landlord’s rehearing request. In that direction (which was sent to the parties) I set out the relevant law, which is also set out in paragraphs 10 to 13 above. What can be seen from that law, is that the courts have confirmed that a rehearing is not a substitute for an appeal and that rehearings cannot be used just to consider arguments that the Tribunal’s findings were simply wrong.
At the hearing today, the landlord indicated that her understanding was that it was the purpose of this rehearing consideration hearing to look again at the Tribunal’s conclusions again. I am not sure why the landlord would have considered that. On the final page of the Tribunals 9 April 2024 order, is general information about rehearings and appeals, and it is plain from that that a rehearing cannot consider the correctness of the decision, rather an appeal would be needed for that. That information holds:

Tenancy Tribunal case 4664991 — Smoke alarms at Unit/Flat 25, 3 Hulme Place, Henderson, Auckland 0612

At a glance

Tenancy Tribunal case 4664991 — Smoke alarms at Unit/Flat 25, 3 Hulme Place, Henderson, Auckland 0612

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LAW

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LAW

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions