What was Tenancy Tribunal case 4759857 about?

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

How much money was awarded in case 4759857?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4759857?

The dispute type was not classified.

Where can I read the official tribunal order for case 4759857?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10664743-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4759857 about?

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

How much money was awarded in case 4759857?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4759857?

The dispute type was not classified.

Where can I read the official tribunal order for case 4759857?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10664743-Tribunal_Order_Redacted.pdf.

18A Enderley Avenue, Enderley, Hamilton 3214 Tenancy Tribunal Case 4759857 — Tenancy dispute

Order

The application for rehearing is dismissed.
The stay of proceedings is lifted.

Reasons

The tenant appeared. There was no appearance by the landlord. As this was the tenant’s application, the landlord was not required to attend, and the matter proceeded in their absence. After the hearing, the Registrar advised that the landlord had in fact notified that they were unable to attend in person and requested to attend by telephone. Unfortunately, this information did not reach the Adjudicator until after the hearing had concluded.
The landlord is not the owner of the property. The landlord is a social housing provider. The landlord subleases the property for the purpose of offering it for social housing. The tenant qualifies for social housing. On 24 June 2016, the landlord and tenant entered a periodic tenancy. On 13 July 2023, the lease agreement between the owner and the landlord ended. On 31 July 2023, the landlord gave the tenant notice to terminate the tenancy under section 53B of the Residential Tenancies Act 1986 (The “Act”) to end the tenancy on 02 November 2023. Notice under section 53B requires the landlord to have a valid reason for terminating the tenancy and to offer the tenant suitable alternative accommodation based on their assessed needs. The tenant refused to vacate the property. On 11 December 2023, the landlord made an application for possession. The tenant requested summonses for fifteen witnesses. The hearing took place on 23 April 2024. The tenant challenged the notice and whether an assessment of their needs had in fact been made. A majority of the witnesses answered their summons and provided evidence either in person or by phone. On 09 June 2024, the Tribunal made an order granting the landlord possession of the property effective 23 June 2024. On 12 June 2024, the tenant applied for a rehearing and a stay of proceedings. On 20 June 2024, the Tribunal set the matter down for a hearing, and granted a stay.
The tenant’s grounds for rehearing are set out in full below: “1) That a substantial miscarriage of Justice has occurred, 2) That TT 4862620 had not been heard in any form, 3) The Adjudicator improperly admitted evidence, 4) The Adjudicator improperly rejected evidence, 5) The Adjudicator did not or refused to consider new evidence relating to TT 4759857 that has become available, 6) Breached my rights to legal justice.” Current status
The tenant has since filing the application for rehearing vacated the property. At this point in time the tenant maintains a relationship with the landlord. Although the Order setting the matter down for a hearing and advising of a stay was sent to the tenant at their email address for service, they claim they were unaware of the stay, and felt obliged to leave the property. It is unclear when the tenant moved, but they estimate it was about a month ago. The tenant seeks an adjournment of the hearing stating that they have been involved in discussions with a senior member of Kainga Ora Homes and Communities, who attended the hearing on 23 April 2024, but who are unable to attend this hearing. In the circumstances, I have declined to delay the matter. The only order made on 09 June 2024 was for possession. The tenant has since vacated the property and the landlord has possession.
In addition to the grounds for rehearing, the tenant has also filed written submissions, which they have discussed with the Tribunal. Law
Section 105(1) of the Act 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. Analysis
The tenant submits that much of what the witnesses said during the hearing was false and therefore improperly admitted. At the hearing, the tenant had the opportunity to cross examine and put their case to all of the witnesses. However, they declined to cross examine those who appeared by phone, arguing the witnesses should have been required to physically attend court and give evidence in person. The Tribunal disagreed and where a witness had a valid reason for being unable to attend in person, and so as not to delay the proceedings, allowed witnesses to attend via telephone. Where the tenant declined to put their case, the Tribunal put the issues, identified at a prior Case Management Conference, to the witness for comment. It is difficult for the tenant to now challenge evidence having been given the opportunity but declining to do so at the hearing. The Tribunal made factual findings based on the evidence, and disagreeing with these findings is not a ground for rehearing.
The tenant submits that the documents produced by the landlord where false or fraudulent and improperly admitted. Under this heading is the tenant’s assertion that the matters raised in TT 4862620 should have been referred to the High Court under section 103 of the Act to determine, as a matter of law, the validity of the documents produced. The Tribunal declined stating that this was not required, as the Tribunal was able to determine as a matter of fact whether the documents produced were false or fraudulent. The Tribunal determined that the documents were not fraudulent and that some, such as the original sale and purchase agreement with the developer and the original head lease, were not relevant to the landlord’s application for possession. Disputes concerning a factual finding or findings of law made by the Tribunal are not grounds for a re hearing.
The tenant submits that the documents forming the assessment, in addition to having been created fraudulently, contained statements that were in fact incorrect. Although the tenant declined to question the witnesses about the content of the documents concerned, they argued at the substantive hearing, and again during this hearing, that the content was factually incorrect, or not as they recalled the events. The Tribunal made a factual finding based on the evidence. That the Tribunal may have made an error determining the facts is not a ground for rehearing.
It is unclear as to what new evidence in particular produced by the tenant at the substantive hearing was wrongly rejected. All evidence was accepted, and that evidence determined relevant was given appropriate weight.
The tenant submits that the Tribunal’s Order was invalid as it had not been signed by the Adjudicator, did not contain the date, and had been sent on a weekend. Orders of the Tribunal do not require a signature, they must contain the Tribunal seal, the Adjudicators name, and the date of issue. The Order did contain the date of issue, which regrettably had been pushed onto the next page by the seal and the Adjudicators name. There is no requirement that Orders can only be issued on working days, it is critical that the Order is correctly dated for calculating times for rehearings and appeals. The Order was sent to the email address advised by the tenant as being their address for service. None of the matters raised are grounds for rehearing.
The tenant submitted that the evidence concerning the service of the 90-day notice was false and that the notice was invalid because it had not been properly served, and further that the notice was invalid as it had not been correctly signed by the landlord or authorised agent. The agent who issued the notice on behalf of the landlord answered a summons and gave evidence by phone. The agent who then served the notice attended Court in person and gave evidence that they served the notice. This evidence was not challenged by the tenant, who stated at the material time service was not an issue. While the Act generally requires termination notices to be signed by the landlord, it does not prohibit electronic signatures. In any event a notice otherwise compliant is not necessarily invalid because it has not been signed by the landlord but is issued by the landlord or an agent. Again, this matter was raised during the substantive hearing with the tenant afforded the opportunity to cross examine the witnesses, which they declined to do. Again, the Tribunal made a factual finding regarding the notice and service. As with the other factual findings made if the tenant is not satisfied that the Tribunal reached the correct conclusion, an appeal was the proper course. Conclusion
In my view the evidence has not been improperly admitted or rejected. The tenant had the opportunity to cross examine all of the witnesses, and to put their case. Where the tenant declined to do so the Tribunal put their case to each witness. While it is acknowledged that the tenant suffers a brain injury and cognitive decline, they were able to properly present their case adequately. No new evidence was presented that was not reasonably available at the first hearing. The Tribunal made factual findings and applied the law accordingly. As stated, 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. The Tenant has failed to establish grounds for a rehearing. The application for a rehearing is dismissed. The stay of proceedings is lifted. The order suppressing the tenant’s name remains in place.

Reasons

The tenant appeared. There was no appearance by the landlord. As this was the tenant’s application, the landlord was not required to attend, and the matter proceeded in their absence. After the hearing, the Registrar advised that the landlord had in fact notified that they were unable to attend in person and requested to attend by telephone. Unfortunately, this information did not reach the Adjudicator until after the hearing had concluded.

The landlord is not the owner of the property. The landlord is a social housing provider. The landlord subleases the property for the purpose of offering it for social housing. The tenant qualifies for social housing. On 24 June 2016, the landlord and tenant entered a periodic tenancy. On 13 July 2023, the lease agreement between the owner and the landlord ended. On 31 July 2023, the landlord gave the tenant notice to terminate the tenancy under section 53B of the Residential Tenancies Act 1986 (The “Act”) to end the tenancy on 02 November 2023. Notice under section 53B requires the landlord to have a valid reason for terminating the tenancy and to offer the tenant suitable alternative accommodation based on their assessed needs. The tenant refused to vacate the property. On 11 December 2023, the landlord made an application for possession. The tenant requested summonses for fifteen witnesses. The hearing took place on 23 April 2024. The tenant challenged the notice and whether an assessment of their needs had in fact been made. A majority of the witnesses answered their summons and provided evidence either in person or by phone. On 09 June 2024, the Tribunal made an order granting the landlord possession of the property effective 23 June 2024. On 12 June 2024, the tenant applied for a rehearing and a stay of proceedings. On 20 June 2024, the Tribunal set the matter down for a hearing, and granted a stay.

The tenant’s grounds for rehearing are set out in full below: “1) That a substantial miscarriage of Justice has occurred, 2) That TT 4862620 had not been heard in any form, 3) The Adjudicator improperly admitted evidence, 4) The Adjudicator improperly rejected evidence, 5) The Adjudicator did not or refused to consider new evidence relating to TT 4759857 that has become available, 6) Breached my rights to legal justice.” Current status

The tenant has since filing the application for rehearing vacated the property. At this point in time the tenant maintains a relationship with the landlord. Although the Order setting the matter down for a hearing and advising of a stay was sent to the tenant at their email address for service, they claim they were unaware of the stay, and felt obliged to leave the property. It is unclear when the tenant moved, but they estimate it was about a month ago. The tenant seeks an adjournment of the hearing stating that they have been involved in discussions with a senior member of Kainga Ora Homes and Communities, who attended the hearing on 23 April 2024, but who are unable to attend this hearing. In the circumstances, I have declined to delay the matter. The only order made on 09 June 2024 was for possession. The tenant has since vacated the property and the landlord has possession.

In addition to the grounds for rehearing, the tenant has also filed written submissions, which they have discussed with the Tribunal. Law

Section 105(1) of the Act 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. Analysis

The tenant submits that much of what the witnesses said during the hearing was false and therefore improperly admitted. At the hearing, the tenant had the opportunity to cross examine and put their case to all of the witnesses. However, they declined to cross examine those who appeared by phone, arguing the witnesses should have been required to physically attend court and give evidence in person. The Tribunal disagreed and where a witness had a valid reason for being unable to attend in person, and so as not to delay the proceedings, allowed witnesses to attend via telephone. Where the tenant declined to put their case, the Tribunal put the issues, identified at a prior Case Management Conference, to the witness for comment. It is difficult for the tenant to now challenge evidence having been given the opportunity but declining to do so at the hearing. The Tribunal made factual findings based on the evidence, and disagreeing with these findings is not a ground for rehearing.

The tenant submits that the documents produced by the landlord where false or fraudulent and improperly admitted. Under this heading is the tenant’s assertion that the matters raised in TT 4862620 should have been referred to the High Court under section 103 of the Act to determine, as a matter of law, the validity of the documents produced. The Tribunal declined stating that this was not required, as the Tribunal was able to determine as a matter of fact whether the documents produced were false or fraudulent. The Tribunal determined that the documents were not fraudulent and that some, such as the original sale and purchase agreement with the developer and the original head lease, were not relevant to the landlord’s application for possession. Disputes concerning a factual finding or findings of law made by the Tribunal are not grounds for a re hearing.

The tenant submits that the documents forming the assessment, in addition to having been created fraudulently, contained statements that were in fact incorrect. Although the tenant declined to question the witnesses about the content of the documents concerned, they argued at the substantive hearing, and again during this hearing, that the content was factually incorrect, or not as they recalled the events. The Tribunal made a factual finding based on the evidence. That the Tribunal may have made an error determining the facts is not a ground for rehearing.

It is unclear as to what new evidence in particular produced by the tenant at the substantive hearing was wrongly rejected. All evidence was accepted, and that evidence determined relevant was given appropriate weight.

The tenant submits that the Tribunal’s Order was invalid as it had not been signed by the Adjudicator, did not contain the date, and had been sent on a weekend. Orders of the Tribunal do not require a signature, they must contain the Tribunal seal, the Adjudicators name, and the date of issue. The Order did contain the date of issue, which regrettably had been pushed onto the next page by the seal and the Adjudicators name. There is no requirement that Orders can only be issued on working days, it is critical that the Order is correctly dated for calculating times for rehearings and appeals. The Order was sent to the email address advised by the tenant as being their address for service. None of the matters raised are grounds for rehearing.

The tenant submitted that the evidence concerning the service of the 90-day notice was false and that the notice was invalid because it had not been properly served, and further that the notice was invalid as it had not been correctly signed by the landlord or authorised agent. The agent who issued the notice on behalf of the landlord answered a summons and gave evidence by phone. The agent who then served the notice attended Court in person and gave evidence that they served the notice. This evidence was not challenged by the tenant, who stated at the material time service was not an issue. While the Act generally requires termination notices to be signed by the landlord, it does not prohibit electronic signatures. In any event a notice otherwise compliant is not necessarily invalid because it has not been signed by the landlord but is issued by the landlord or an agent. Again, this matter was raised during the substantive hearing with the tenant afforded the opportunity to cross examine the witnesses, which they declined to do. Again, the Tribunal made a factual finding regarding the notice and service. As with the other factual findings made if the tenant is not satisfied that the Tribunal reached the correct conclusion, an appeal was the proper course. Conclusion

In my view the evidence has not been improperly admitted or rejected. The tenant had the opportunity to cross examine all of the witnesses, and to put their case. Where the tenant declined to do so the Tribunal put their case to each witness. While it is acknowledged that the tenant suffers a brain injury and cognitive decline, they were able to properly present their case adequately. No new evidence was presented that was not reasonably available at the first hearing. The Tribunal made factual findings and applied the law accordingly. As stated, 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. The Tenant has failed to establish grounds for a rehearing. The application for a rehearing is dismissed. The stay of proceedings is lifted. The order suppressing the tenant’s name remains in place.

Tenancy Tribunal case 4759857 — Tenancy dispute at 18A Enderley Avenue, Enderley, Hamilton 3214

At a glance

Claims & awards

Tenancy Tribunal case 4759857 — Tenancy dispute at 18A Enderley Avenue, Enderley, Hamilton 3214

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions