What was the outcome of Tenancy Tribunal case 4767957?

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

How much money was awarded in case 4767957?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4767957?

The primary dispute was Rent arrears. Related themes: Smoke alarms, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4767957?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11156955-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4767957?

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

How much money was awarded in case 4767957?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4767957?

The primary dispute was Rent arrears. Related themes: Smoke alarms, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4767957?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11156955-Tribunal_Order.pdf.

28 Revans Street, Miramar, Wellington 6022 Tenancy Tribunal Case 4767957 — Rent arrears

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Reasons

Both parties attended the hearing. The tenants were represented by their lawyer, Ms Roznawska.

On 15 February 2024 the Tribunal made an order terminating the tenancy and ordered the tenants to pay compensation for repairs and exemplary damages for removing the smoke alarms.

On 2 October 2024 the tenants applied for a rehearing. This application was allowed out of time.

The grounds for a rehearing include: • The tenants were not served and were unable to effectively participate in the hearing • They were entitled to legal representation and they have a layer now • They never received notice the rent was in arrears • They did not smoke in the property or remove the smoke alarms so they could smoke inside • They are not responsible for the damage to the ranch slider and the insurance claim • Rent was not payable because of Healthy Homes Breaches • The Healthy Homes Report is an important document that was not available to the Tribunal at the first hearing • The tenancy premises are unlawful premises and therefore an order cannot be made for rent arrears or compensation.

Section 105(1) 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.

Has a substantial wrong or miscarriage of justice occurred?

The tenants were not served

The lawyer’s submission is that the tenants did not receive the application and were not aware of the hearing until the day of the hearing. The tenants said they had problems with their phones and their emails were hacked. This meant they did not receive information emailed to them, and people sent emails and texts pretending to be the tenants.

I have checked the file. There are file notes from Tenancy Services recording messages from the tenants. One of the tenants telephoned on 23 January, provided an email address and asked for the hearing documents to be emailed to her. All the hearing documents were emailed as requested on 23 January. On 12 and 13 February the tenants telephoned and asked about a cross application they filed and whether they should attend the hearing. The reply on 13 February said: In regard to your query about the cross application that you filed. Please note, to date we have not received your application. Please advise the Adjudicator at the hearing that you had filed an application but it has not yet been received by Tenancy Services. I will also note the file. On the day of the hearing one of the tenants telephoned to say they had to attend a tangi. There was no request for an adjournment.

When I questioned the tenants about these notes on the file they said had not made the calls, and they had not attended a tangi. I have not been presented with any evidence to support the explanation the tenants were hacked. It seems highly unlikely to me that someone impersonated them and telephoned Tenancy Services with knowledge about a cross application. The email address the documents were sent to on 23 January is the email address used by the tenants during the tenancy. Every email sent by Tenancy Services was duplicated in text messages sent to both tenants as well. It seems most likely to me the tenants were served and knew about the hearing. The tenants were entitled to legal representation and they have a lawyer now

Not having legal representation is not grounds for a rehearing. Had the tenants attended the hearing they could have asked for an adjournment to get legal advice and that would have been considered. The tenants never received notice the rent was in arrears The tenants did not smoke in the property or remove the smoke alarms The tenants are not responsible for the damage to the ranch slider/insurance

The tenants may have had a defence to the landlord’s claims but they needed to come to the hearing to have their say. The fact they do not agree with the order is not grounds for a rehearing. If the tenants believe I applied the law incorrectly then that is grounds for an appeal. These are not grounds for a rehearing. Rent was not payable because of Healthy Homes Breaches The Healthy Homes Report is an important document that was not available

There was a second hearing with another adjudicator and my understanding from the parties is that the Healthy Homes Standards (HHS) were litigated at that full day hearing. I also note that rent is still payable where there is a breach of the HHS. These are not grounds for a rehearing. The tenancy premises are unlawful premises

The lawyer submitted that it was likely the tenancy premises are unlawful premises, which means an order for rent arrears and compensation could not be made against the tenants. In support of this she included the single power meter and problems with rubbish collection. In reply the landlord said the house has two letterboxes and two sets of rubbish bins. I asked the landlord to provide a copy of the rates bill, but this was not done. My understanding is the landlord submitted information after the hearing that could not be shared with the tenants, so I have not looked at it either.

I have considered the submissions. A rehearing may 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.

The lawfulness of the premises was a defence the tenants could have raised at the hearing had they attended. It is not fresh evidence because information on the council file could have been found with reasonable diligence. In fact, lawfulness can be raised by the Tribunal even without an application. This is not grounds for a rehearing.

I find the tenants have failed to establish the grounds for a rehearing. The application is dismissed.

Reasons

Both parties attended the hearing. The tenants were represented by their lawyer, Ms Roznawska.

On 15 February 2024 the Tribunal made an order terminating the tenancy and ordered the tenants to pay compensation for repairs and exemplary damages for removing the smoke alarms.

On 2 October 2024 the tenants applied for a rehearing. This application was allowed out of time.

Section 105(1) 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”.

Has a substantial wrong or miscarriage of justice occurred?

The tenants were not served

I find the tenants have failed to establish the grounds for a rehearing. The application is dismissed.

Tenancy Tribunal case 4767957 — Rent arrears at 28 Revans Street, Miramar, Wellington 6022

At a glance

Tenancy Tribunal case 4767957 — Rent arrears at 28 Revans Street, Miramar, Wellington 6022

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions