What was Tenancy Tribunal case 4708889 about?

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

How much money was awarded in case 4708889?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4708889?

The primary dispute was Mould & damp. Related themes: Healthy homes, Leaks.

Where can I read the official tribunal order for case 4708889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10215184-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4708889 about?

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

How much money was awarded in case 4708889?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4708889?

The primary dispute was Mould & damp. Related themes: Healthy homes, Leaks.

Where can I read the official tribunal order for case 4708889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10215184-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4708889 — Mould & damp

Order

The application for rehearing is dismissed.
The stay ordered by Tribunal direction on 1 March 2024 is lifted and no longer of any effect.
As both parties’ identifying details were redacted on the original order, I direct that those suppression orders continue.

Reasons

Both parties attended the hearing which was set by Tribunal direction 1 upon [The landlord/s]’s application to consider whether a rehearing ought to be directed.
On 26 January 2024 the Tribunal made an order on a number of claims filed by the tenants. Some were dismissed and others upheld; monetary orders were made.
On 2 February, [The landlord/s] applied for a rehearing on the following grounds: 1 on 1 March 2024 i. There was new evidence available pertaining to the finding on the roof space mould that ought to have been considered. ii. That she misunderstood questioning within the hearing regarding this issue, and therefore answered incorrectly. iii. That the market rent finding was wrong. iv. That the draught stopping video evidence provided by the tenants should have been provided to her earlier and she has since been in the home so knows it to be incorrect. v. That there was no shower leak.
[The landlord/s] also sought a direction on the bond release because the tenancy has now ended, and the parties are disputing how it should be distributed.
I discuss the above grounds below however firstly confirm what I advised the parties of at the hearing in response to [The landlord/s]’s submissions regarding the bond. This hearing was set to consider whether a rehearing on previously decided claims should be held, it is not therefore anything to do with the bond.
If the parties dispute how the bond should be apportioned, they need to make an application to have that heard by the Tribunal pursuant to section 22B of the Residential Tenancies Act 1986 (RTA). This is because the usual process must be followed, i.e., the applicant files the claim which is served on the other party in order for them to formulate their response. This is the principal of natural justice; that if a claim is made against a person they are entitled to a fair hearing of that claim.
Accordingly, I decline to make any directions on the bond.
I turn now to the application for a rehearing. The law on rehearings
Section 105(1) of the 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”.
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.
In Jemma Trust v Rutherford 2 the District Court quoted an extract from the Court of Appeal 3 outlining the relevant considerations when it comes to ‘new evidence’: 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.
The District Court 4 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. As follows: [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.
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. The test is fairly high given the requirement for a substantial wrong or miscarriage of justice. As noted in Powell v Dredge & Ors, CIV-2020-085-193 2 (DC North Shore, CIV-2009-044-2056, 11 December 1999), 3 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 4 Wellington City Council v McMillan [2003] DCR 50 [2020] p5 “What must be demonstrated is something far greater than unhappiness, disagreement or dissatisfaction.”
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: “Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.”

Has a substantial wrong or miscarriage of justice occurred?

Firstly, as advised at the hearing, I dismiss [The landlord/s]’s submissions with respect to the market rent finding because her grounds in that regard are that she disagrees with my finding. As discussed with her, and above, this is an issue for appeal, not a rehearing.
I also dismiss the submission with respect to the whether there was or was not a shower leak. This was not a pertinent matter at the hearing and no findings were made against [The landlord/s] in this respect. Particularly I note at paragraph 54 I found that it had not been established that there was an inherent issue with dampness (mould) in the property, or that [The landlord/s] had failed in her related obligations in any way except with respect to the mould in the roof cavity.
I turn now to the other three grounds submitted. Draught stopping
[The landlord/s] considers it is a miscarriage of justice that she was shown the videos of the alleged lack of draught stopping at the hearing and not before. She says she has since been to the property and it is not as it was depicted in these videos.
As discussed at the hearing, given the nature of the Tribunal being a ‘people’s court’ it is usually the case that parties present evidence to the other side on the day of hearing. It is not best practice and makes it difficult, not only for the other party but also for the adjudicator, but it happens. Both parties here presented substantial evidence to the Tribunal on the day of the hearing that they had not shown to the other party prior.
Time was given to both parties during and after the hearing to provide any evidence they wished to in response to any evidence provided at the hearing. Specifically, [The landlord/s] was given a break after the production of the draught evidence (among other evidence) to consider what she wanted to respond to, and the following day. [The landlord/s] did not avail of those opportunities with respect to the draughts specifically and did not raise a concern about the videos at the hearing or (importantly) in her application for a rehearing. She only raised her concern in oral submissions at the rehearing consideration hearing.
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. Bearing in mind this section, I do not consider it just for [The landlord/s] at this late stage to raise a concern about evidence she was shown at the hearing.
I therefore must dismiss this ground. Mould in the roof cavity
[The landlord/s] submits two grounds as to why the claim with respect to mould in the roof cavity 5 should be reheard, as follows: a. She misunderstood the discussions at the hearing on the matter and accordingly gave the wrong evidence which was subsequently relied on. b. There is a report from [Mould company] now available that should have been considered.
Firstly, with respect to a misunderstanding, [The landlord/s]’s recollection is that the issue regarding the mould in the bedroom and the roof cavity were dealt with in one. She says she saw them as one issue because they were raised in the same complaint by the tenants and her addressing of them both was the same; the installation of the downlights. She therefore considered that her evidence as to her investigation and rectification of the mould in the bedroom was the same as the roof cavity.
She says that when she was asked in the hearing about the roof cavity mould some time after the original discussion about mould generally, she thought this was another issue and therefore advised she was not aware of it. 6 She says now that her investigations had led her to believe that the mould in the roof cavity and on the bedroom ceiling was caused by the old lights which did not have insulation over them thereby allowing damp air to come into the ceiling cavity from the bedroom. 5 Paragraphs 50 and 56 of the decision 6 Paragraph 40
Put simply, [The landlord/s]’s submission here is that she was not able to present her case on this matter properly because she had a different understanding of the discussion than I did.
The tenants’ view is that they were two distinct issues with two distinct discussions. They do not consider that the installation of the downlights was in rectification of the roof cavity mould, only the bedroom ceiling mould. They had understood that [The landlord/s] took no steps towards addressing the roof cavity mould because it was not cleaned off and it was not investigated.
The tenants therefore submit that there was no misunderstanding and as such the matter should not be traversed a second time.
My recollection accorded with the tenants’; that the two distinct areas of mould were discussed separately at the hearing and that the downlight installation evidence pertained only to the bedroom mould. Therefore, following the hearing I listened to the recording of the original hearing very carefully.
I found that at approximately 11.14am there was a discussion specifically about the mould around the lights. [The landlord/s]’s reasoning for the mould was the lack of insulation above them and she explained what she did to deal with that issue. Within that discussion at 11.16am I specifically asked her about the mould in the roof cavity and her response was she was not advised about that issue until this application, so she was not aware of it when she installed the downlights. I asked her if the person who installed the downlights would have seen it and she said no. I then asked her if when she installed the batts, she noticed the mould and she said she did not. She went further to explain specifically why she did not see it.
[The landlord/s]’s oral evidence at the hearing therefore was that she addressed the bedroom ceiling mould by installing the downlights but did not address the roof cavity mould because she was not aware of it.
The oral discussion about the mould in the roof cavity was limited because [The landlord/s] was repeating that she had not been advised about it and did not know anything about it. At paragraph 40 of the decision, I stated that I did not accept that submission given the email from the tenants on 25 June notifying of that issue, amongst others.
In her written submissions provided on the day of the hearing [The landlord/s] also separates the two issues and this documentary evidence is consistent with her oral evidence at the hearing: i. At page 10 she responds to the tenants’ concern about the mould in the ceiling cavity by saying this application is the first time this has ever been raised. ii. At page 11 she addresses the bedroom ceiling mould and refers to her resolution being the installation of new down lights.
[The landlord/s]’s submission now that the new downlights addressed both areas of mould is not consistent with her defence at the hearing (in writing and orally) that she did not know the roof cavity mould existed. In short, she could not have been remedying something she did not know existed.
Accordingly, I dismiss [The landlord/s]’s submission that there was a misunderstanding at the hearing as a ground for a rehearing.
Moving on to the new evidence [The landlord/s] would like to submit. [The landlord/s] says that a report from [Mould company] she obtained after the hearing was new evidence which should have been considered at the hearing. This evidence discussed the mould in the ceiling cavity and essentially says it is not serious. Because of this opinion, [The landlord/s] does not think it is fair that she should have to pay $500 compensation.
[The landlord/s] submits that she could not have reasonably obtained this report prior to the hearing as she had considered her investigations and work were sufficient. She says that after she installed the downlights the tenants did not complain about mould in the roof cavity or bedroom again therefore she was entitled to believe that her work had remedied the issues.
The tenants submit that it was exactly this type of investigation that they considered [The landlord/s] should have done upon their notification of the issue. They say that as she is not an expert she could not rely on her own investigations into the issue. In particular they say that at the time no one looked to consider whether there was a leak in the roof which was causing the mould (which is what [Mould company] has now done).
My finding was that the mould in the roof cavity had not been investigated upon notification. The [Mould company] report is evidence of such investigation.
[The landlord/s]’s submission here must accordingly also fail for essentially the same reasons as the earlier ground. This evidence could have been available if [The landlord/s] had acted upon the notification given to her by the tenants that there was mould in the roof cavity by investigating it.
Her submission that she did not know she needed to do such an investigation is based upon her submission that she thought the downlights had addressed the roof cavity mould. This later submission has failed, as discussed above, therefore the former submission must also fail.
Put another way and in line with the above discussed precedent: i. I accept the evidence is credible. ii. It could however have been provided prior to the original hearing. The issue had been raised in the application and therefore [The landlord/s] was on sufficient notice. There is no real reason why she did not obtain the report prior to the hearing, as opposed to after, or even when the issue was reported to her by the tenants. iii. There are no compelling reasons as to why the report should be accepted given it is not new fresh evidence. The original finding was that [The landlord/s] had not investigated the issue of the mould in the roof cavity; undertaking such an investigation post hearing does not change that finding. Therefore, even if I did accept that the report should be considered, it would not have changed my finding that [The landlord/s] did not investigate the roof cavity mould when she was notified of it.
Accordingly, I find that [The landlord/s] has failed to establish the grounds for a rehearing, and her application must be dismissed.

Tenancy Tribunal case 4708889 — Mould & damp

At a glance

Tenancy Tribunal case 4708889 — Mould & damp

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