What was the outcome of Tenancy Tribunal case 4733149?

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

How much money was awarded in case 4733149?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4733149?

The primary dispute was Mould & damp.

Where can I read the official tribunal order for case 4733149?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10188773-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4733149?

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

How much money was awarded in case 4733149?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4733149?

The primary dispute was Mould & damp.

Where can I read the official tribunal order for case 4733149?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10188773-Tribunal_Order.pdf.

61 Surrey Street, Caversham, Dunedin 9012 Tenancy Tribunal Case 4733149 — Mould & damp

Order

The application for rehearing is dismissed.

Reasons

Only the landlord attended the hearing which was held by phone. A call was placed to the tenant but the tenant made it clear that he had no wish to participate and terminated the call.
On 12 February 2024 the Tribunal made an order as follows:
On 15 February 2024, the landlord applied for a rehearing on the grounds that (as set out in the rehearing application): a. He has a receipt from the garage door company showing work necessary to repair the door to a functioning standard; b. There was no evidence presented that the laundry ceiling was not treated for mould before painting and it had in fact been treated by a painter and that “[h]is supporting statement is forthcoming”; c. The tenant was under no obligation to stay at the property and the tenant’s former partner made no complaints when she was residing at the property; d. The award to the tenant seemed random and arbitrary; e. No evidence was presented regarding the tenant’s daughter’s asthma; f. The hearing was unprofessional and he was asked to provide hard copies of evidence that had already been submitted with the original application; and g. The tenant was allowed to “indulge in an exceedingly long unfocussed ramble about all manner of imagined defects with the property”.
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.
The usual practice of the Tenancy Tribunal is that a rehearing application is considered by the original adjudicator who made the decision which the applicant is seeking to have reheard (Fetherston v Lee, DC North Shore, CIV- 2012-044-001127, 7 May 2013).

Has a substantial wrong or miscarriage of justice occurred?

New evidence

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.
In his application for a rehearing the landlord has identified two items of evidence which he says support his application for a rehearing. These are set out in paragraphs 3a and b above.
Garage door: The landlord’s claim for damage to the garage door was found not proven. This is because as a matter of law the landlord must prove that damage to the premises occurred during the tenancy (see section 40(2)(a) RTA). The landlord did not provide any evidence of the condition of the door prior to the start of the tenancy (or in fact following the tenancy). The invoice does not assist the landlord as it does not prove that the damage occurred during the tenancy, and in any event is not fresh evidence as it was presented and considered during the original hearing.
Laundry ceiling: The tenant’s claim regarding mould and damp was proven in part because mould on the ceiling was painted over. The landlord did not give evidence at the hearing regarding mould treatment. At the hearing today the landlord said that the ceiling had been treated but did not explain why that evidence to that effect was not given at the first hearing. Although the application for a rehearing refers to forthcoming evidence from the painter, that evidence has still not been filed (as confirmed by the landlord) so I was not able to consider whether it might have affected the outcome.
The landlord has not satisfied me that there is fresh evidence which would have affected the outcome, and so there is no basis for a re-hearing to be granted on this basis. Tenant not obliged to stay/previous occupants did not complain
The grounds raised by the landlord at paragraphs 3c and d above are not in fact grounds for a rehearing.
The tenant is not obliged to leave a tenancy because it is not properly maintained and a tenant is still able to bring a claim even if other occupants have not previously complained.
Neither of these grounds provide a basis for a re-hearing to be granted. Tribunal procedure
In Wellington City Council v McMillan [2003] DCR 50, the District Court 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: [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.
Award random and arbitrary: After hearing from the landlord it became clear that the landlord simply considered the award to the tenant to be wrong. This is not a sufficient ground to establish a miscarriage of justice. In such circumstances the proper course is to appeal to the District court.
No evidence presented regarding the tenant’s daughter’s asthma: The landlord did not elaborate on this ground at the hearing. I have reviewed original decision carefully and although the decision records that the tenant had stated at the hearing that his daughter suffers from asthma, no finding was made in this regard.
The hearing was unprofessional/he was asked for hard copies of evidence filed with the original application: At the hearing the landlord said that I had not read all of the evidence prior to the hearing and that he should not have been asked to provide hand up hard copies of evidence that had already been filed.
The original hearing was scheduled to hear cross claims, which were claims filed by both the landlord and the tenant. There are approximately 175 pages of documents across both files.
All documents are held electronically by the Tribunal and are reviewed as far as possible prior to the hearing. It is not for the Tribunal to review every single piece of evidence in advance of the hearing. It is for the parties to present their case and to draw the adjudicator’s attention to relevant documents that they wish to rely on.
The Notice of Hearing which was sent to the parties specifically states “It is recommended that you bring a full copy of all of the application documents and evidence with you to the hearing”. This is particularly so where there are a large number of documents, as there were in this case, so that they can be easily and quickly identified and reviewed.
All of the evidence that the landlord wished to present was carefully reviewed at the hearing. This ground does not provide a basis for a re-hearing.
The tenant was allowed to indulge in an unfocussed ramble about imagined defects: The landlord did not explain how this ground might have led to a substantial miscarriage of justice. Both parties filed claims and were entitled to be heard and in fact were heard. Each party had an opportunity to respond. Ultimately the tenant’s claims were only proven in part. This ground does not provide a basis for a re-hearing.
The landlord has failed to establish the grounds for a rehearing.

Tenancy Tribunal case 4733149 — Mould & damp at 61 Surrey Street, Caversham, Dunedin 9012

At a glance

Tenancy Tribunal case 4733149 — Mould & damp at 61 Surrey Street, Caversham, Dunedin 9012

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