What was Tenancy Tribunal case 4705951 about?

The tribunal order states: The application by Cutlers Limited for a rehearing is dismissed.

How much money was awarded in case 4705951?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4705951?

The dispute type was not classified.

Where can I read the official tribunal order for case 4705951?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10880125-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4705951 about?

The tribunal order states: The application by Cutlers Limited for a rehearing is dismissed.

How much money was awarded in case 4705951?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4705951?

The dispute type was not classified.

Where can I read the official tribunal order for case 4705951?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10880125-Tribunal_Order_Redacted.pdf.

Room B, Unit/Flat Unit 32, 50 Park Street, North Dunedin, Tenancy Tribunal Case 4705951 — Tenancy dispute

Order

The application by Cutlers Limited for a rehearing is dismissed.
The stay of proceedings of the Order of the Tribunal dated 23 May 2024 is lifted.

Reasons

Both parties attended the hearings on 25 July and today.
On 23 May 2024 the Tribunal made an order for the landlord to pay the tenant $5,142.44 for medical costs, refund of rent and the filing fee.
On 29 May 2024 the landlord applied for a rehearing on the following summarized grounds: a. Procedural issues relating to what the landlord considered was late evidence provided by the tenant in response to a comment by the adjudicator at the end of the initial hearing that her evidence was a bit “thin”. b. Lack of knowledge by the landlord of the name of the tenant’s witness who appeared at the rescheduled hearing. c. Factual mistakes by the Adjudicator the landlord believed were established by post hearing evidence from an architect, cleaner, joiner and builder.
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”.
In the District Court judgement of 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, stating: “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. ... 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. 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 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 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 High Court in Angelo v Lehr [2022] NZHC 3033 confirmed that it was not a miscarriage of justice to decline a rehearing just because evidence was not considered at the original hearing, when that evidence could have been produced at the original hearing.
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.
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, Yogeswaran v Doubletrees Properties Ltd [2021] NZDC 15704.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons the landlord has failed to establish the grounds for a rehearing: a. The fact that the landlord disagrees with the decision is not a ground for a rehearing. b. The Tribunal process did not disadvantage the landlord in any way. Rather the landlord decided to withdraw the application for an adjournment of the rescheduled hearing after perusing the evidence provided by the tenant. c. At the end of the initial hearing the tenant confirmed that her witness would be a Tenancy Services Investigating officer from MBIE and the name of that officer. Although the tenant provided a written statement from another witness that person was not called to give evidence. d. The interests of justice require parties to put their best case forward at the initial hearings and both parties had the opportunity to do this. e. The fact that the landlord did not to call any witnesses or further evidence at the rescheduled hearing, but instead relied on a non binding comment from the adjudicator was a choice they made. The landlord is very experienced and has been managing rental properties and appearing in the Tribunal for several decades. f. The factual mistakes suggested by the landlord relate to evidence obtained after the decision was issued. g. Granting a rehearing on the basis of the new evidence provided by the landlord would amount to a de nova re-litigation of the merits of the case.
I consider no substantial wrong or miscarriage of justice has occurred, and a rehearing is not appropriate.
The objective of the Tribunal is to determine expeditiously disputes arising between landlords and tenants.
Unfortunately, this dispute has been ongoing since the tenant made her application on 3/11/2023. There have been two original hearings, on 22/2 and 22/5 and two rehearing hearings on 25/7 and 26/9/2024.
The landlord has made it clear that if their application for rehearing is unsuccessful then the decision will be appealed.
As the tenant was granted name suppression in the Order dated 23 May 2024, I have continued that suppression.

Reasons

Both parties attended the hearings on 25 July and today.

On 23 May 2024 the Tribunal made an order for the landlord to pay the tenant $5,142.44 for medical costs, refund of rent and the filing fee.

On 29 May 2024 the landlord applied for a rehearing on the following summarized grounds: a. Procedural issues relating to what the landlord considered was late evidence provided by the tenant in response to a comment by the adjudicator at the end of the initial hearing that her evidence was a bit “thin”. b. Lack of knowledge by the landlord of the name of the tenant’s witness who appeared at the rescheduled hearing. c. Factual mistakes by the Adjudicator the landlord believed were established by post hearing evidence from an architect, cleaner, joiner and builder.

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”.

In the District Court judgement of 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, stating: “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. ... 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. 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 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 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 High Court in Angelo v Lehr [2022] NZHC 3033 confirmed that it was not a miscarriage of justice to decline a rehearing just because evidence was not considered at the original hearing, when that evidence could have been produced at the original hearing.

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.

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, Yogeswaran v Doubletrees Properties Ltd [2021] NZDC 15704.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons the landlord has failed to establish the grounds for a rehearing: a. The fact that the landlord disagrees with the decision is not a ground for a rehearing. b. The Tribunal process did not disadvantage the landlord in any way. Rather the landlord decided to withdraw the application for an adjournment of the rescheduled hearing after perusing the evidence provided by the tenant. c. At the end of the initial hearing the tenant confirmed that her witness would be a Tenancy Services Investigating officer from MBIE and the name of that officer. Although the tenant provided a written statement from another witness that person was not called to give evidence. d. The interests of justice require parties to put their best case forward at the initial hearings and both parties had the opportunity to do this. e. The fact that the landlord did not to call any witnesses or further evidence at the rescheduled hearing, but instead relied on a non binding comment from the adjudicator was a choice they made. The landlord is very experienced and has been managing rental properties and appearing in the Tribunal for several decades. f. The factual mistakes suggested by the landlord relate to evidence obtained after the decision was issued. g. Granting a rehearing on the basis of the new evidence provided by the landlord would amount to a de nova re-litigation of the merits of the case.

I consider no substantial wrong or miscarriage of justice has occurred, and a rehearing is not appropriate.

The objective of the Tribunal is to determine expeditiously disputes arising between landlords and tenants.

Unfortunately, this dispute has been ongoing since the tenant made her application on 3/11/2023. There have been two original hearings, on 22/2 and 22/5 and two rehearing hearings on 25/7 and 26/9/2024.

The landlord has made it clear that if their application for rehearing is unsuccessful then the decision will be appealed.

As the tenant was granted name suppression in the Order dated 23 May 2024, I have continued that suppression.

Tenancy Tribunal case 4705951 — Tenancy dispute at Room B, Unit/Flat Unit 32, 50 Park Street, North Dunedin,

At a glance

Claims & awards

Tenancy Tribunal case 4705951 — Tenancy dispute at Room B, Unit/Flat Unit 32, 50 Park Street, North Dunedin,

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions