What was Tenancy Tribunal case 4768179 about?

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

How much money was awarded in case 4768179?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4768179?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4768179?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10500759-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4768179 about?

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

How much money was awarded in case 4768179?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4768179?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4768179?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10500759-Tribunal_Order_Redacted.pdf.

16 Blick Terrace, The Brook, Nelson 7010 Tenancy Tribunal Case 4768179 — Rent arrears

Order

The application for rehearing is dismissed.

Reasons

On 21 May 2024 the Tribunal made a monetary order in favour of the tenant applicant.
On 29 May 2024, [the tenant] applied for a rehearing on the grounds he perceived substantial wrongs or miscarriages of justice in the original decision.
A hearing to consider the rehearing application took place via teleconference on 13 June 2024. Both parties attended.
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.
My 21 May 2024 order addressed evidence and a section of that is repeated here for completeness. -The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

Has a substantial wrong or miscarriage of justice occurred?

The tenant sought compensation of $15,500; being a rental rebate and for work performed at the premises. Both totalling $7,750.00.
No claims for exemplary damages were made.
The applicant provided a written submission stating the grounds he believed merited a rehearing. I have adopted the same format where appropriate (grounds in italics) for this response. First grounds: Compensation and Exemplary Damages: •Section 77(2)(n), Section 77(2)(o), Section 109, Schedule 1A: The awarded rent refund of 1.6% is significantly lower compared to other similar cases where substantially higher percentages were granted. This discrepancy needs to be addressed to ensure consistency and fairness in awarding compensation.
I am not bound by other Tribunal decisions although they may be noted. The circumstances in this matter were considered “special circumstances” [at 20.] in my order.
The doctrine of precedent is based on the principle of stare decisis, which requires lower courts to take account of and follow the decisions made by the higher courts where the material facts are the same, and states that as a general rule, courts follow earlier decisions of themselves or of other courts of the same level.
The above applies where the material facts are the same. The small number of Tribunal orders cited by the tenant do not bind me. No higher court decision was citied. This tenancy had some features in the operation that renders direct comparison and alignment with previous decisions, be those of my own, other Tenancy Tribunal adjudicators, or a higher court, inappropriate.
No exemplary damage claims made in the application. Failure to Maintain: •Section 45: The decision did not adequately consider substantial photographic evidence illustrating deficiencies such as inadequate insulation, inadequate draft exclusion, and lack of ventilation in the kitchen area. Additionally, the landlord’s January 2023 admission to the tenant of needing to remedy the ceiling insulation was not appropriately evaluated, particularly as his admission debunked the validity of the free-of-charge 'insulation certificate'.
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be.
Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
This was a long tenancy. I have extracted below some samples of correspondence to highlight some interactions between the parties over this long period. This is a limited sample and other messages with different messages could have been extracted but these represent part of the flavour to the tenancy operation I considered the more usual.
In an early email, dated 15 April 2014, the tenant wrote: Thanks Seth. That was super quick. I love this stage of things, figuring out all the little tweaks of a new place. I'm super happy to put my energy into making your place awesome, in the first instance because I reap the most immediate comfort and benefits, secondly as I know whoever comes next will not even know about any of those things, and simply move into their new happy new home, and ultimately that all goes full circle and seeds into being a great source of happy income for you guys. So cool waking up to the birdsong too:)
Seth responded that same day: no worries bud... we will get things sorted
On Apr 29 2014, the landlord wrote: That's fine to deduct it from the rent. The modem is taking its. Time chased them up, today so should have it this week. Gas heater getting fixed. Not too soon as the cold has set in. Thanks for sorting the curtains out ....that's awesome...talk soon. I'll catch up and have a beer as soon as I get a space
The tenant replied that same day: Hi Seth, thanks so much for doing that I've essentially finished with the curtains, the only one I still want to get is one for the kitchen/garage door. I'll keep an eye out for one as there is now a rail waiting for it. I have parts to seal the sink tap but I need a big washer as the hole is very big so probably next time I'm at mitre 19/place makers I'll get a big washer or something suitable. I also think it's best to replace the seal between the sink and bench top, so I'll look into that. So all up, I've spent $140 on curtains, rails, hooks, curtain wire and sink parts. So let me know how you want to sort that, I am happy to deduct from this weeks rent, but realise that might not work so well for you. I have all the receipts for you. Have fun
In an email dated 14 May 2020, the tenant wrote: Thanks Seth, I'm glad you're good. If there is anything you want a hand with, anything around the property, me know.
On 15 October 2021 the tenant wrote: Thank you for providing this home for us both. It's been exactly the right place for us to make our home, to be safe and private, to be each other's companion and to be there for each other.
The tenant, on 8 December 2021 wrote: Ultimately I'd like to stay, at least for another 12-18 months, especially with things so up in the air with all the covid stuff. I have been wanting to put a proposal to you in regards re-lining one of the rooms, as I need a space to setup and record my drums, as that is the most obvious way forward for me in regards income. I've been highly reluctant to set them up due to the neighbours being so close. I know it seems a bit contrary for a tenant to want to invest how ever much into sound-dampening and re-lining a room which doesn't belong to them but, somehow I need to make this work. Quiet Enjoyment Breaches: •Section 38, Section 40(2): The final decision underplayed the landlord's admitted breaches of my quiet enjoyment. The standards for assessing and compensating such breaches need to be reconsidered to reflect the gravity of the situation.
On 5 July 2023 the tenant wrote to the landlord stating (in part): Further, there has been, in hindsight, an obvious mental effect on me, as it has been necessary to interrupt my quiet enjoyment to tend to the maintenance issues which, the bulk of, should have been tended to pre-tenancy. This is exacerbated when you both message me on Facebook and email at the same time. A single email has always been sufficient and such actions are viewed as obvious breaches of a tenant’s quiet enjoyment because they quickly become considered harassment.
Having consideration of the operation of this tenancy, and the messages over the period, I did not consider any quiet enjoyment breaches (considered as part of the overall claims rather than any specific claim) were evidenced such that any order should have been made.
As noted in [13] of my order: This was an unusual tenancy with the interaction and relationship between the parties blurred. The landlord claimed a friendship. The tenant rejected such a claim by the end of the tenancy but regardless of nomenclature I consider the interaction during the tenancy a closer relationship than that typical of a landlord – tenant.
I stand by that assessment. Discouraging Unlawful Tenancies: •Section 77, Section 78: The partial rent refund of five weeks' rent ($875) of a nine+ year tenancy does not adequately serve the public interest in discouraging unlawful tenancies and ensuring landlords do not unfairly profit. Additionally, the $2300+ overpaid for 'extra power', which the landlord admitted to arbitrarily keeping, needs to be reconsidered because this too constitutes an unfair profit.
It was my initiative to invoke s 78A RTA (per sub-section (5)). It was not raised by the tenant in his application. The determination of any amount is subject to consideration of a number of factors as outlined in the order but any monetary order in itself is not an exact science. I consider the order outlined the reasons for the determination and, an unhappy tenant notwithstanding, there are no grounds for a rehearing established here.
The issue of “extra power” dates back to an interim arrangement to pay an additional $10 per week from 2015, regarding high power costs. The extra payments continued and it was never challenged until now. This was not a specific claim of the tenant but it was considered as part of the overall circumstances. I considered the continuation of the arrangement and payment over such a long period, even when rent arrears based were later raised, made the treatment of those payments as a mutually agreed weekly rent.
In terms of the public interest in discouraging unlawful tenancies, that the landlord has not relet the premises since indicates some notice. Heating and Healthy Homes Standards: •Section 138B, Section 45: The breaches of the Healthy Homes Standard, Heating Standard, Ventilation Standard, and Insulation Standard were not adequately addressed. The decision should reflect specific penalties or corrective actions for these breaches.
This was discussed at the hearing. The requirements for healthy homes compliance was timetabled. With the exception of insulation, as this tenancy commenced before 1 July 2021, the landlord had until 1 July 2024 (since extended to 1 July 2025) to comply. There is limited evidence of tenant advice of any defects to the landlord that remained unresolved or pursued. There appeared, at times, to have been a degree of mutual resolution of such issues.
In terms of insulation, the tenant failed to evidentially establish a failure in the insulation sufficiently to usurp the installer assessment of November 2022 (see below). This was decided on the basis of the evidence. The issue of rodent mess in the ceiling was a problem but in itself not evidence of any landlord failure vis-à-vis the ceiling insulation. It appears from the tenant submission the insulation was installed late 2017/early 2018. Figure 1: extract from the insulation assessment Existence of a Written Tenancy Agreement: •Section 77, Section 78: The inference of a written tenancy agreement, despite both parties stating none existed, contradicts the Tribunal's mandate not to extract evidence. This needs to be re-evaluated.
The issue of a written tenancy agreement is not considered a significant issue but the document referred to was the letter by the landlord dated 20 May 2019 where if prior to that date a boarding situation existed, I considered a tenancy was confirmed in that letter, and with it the jurisdiction for this Tribunal. Tenant Improvements: •Section 45, Section 138B: The decision did not correctly distinguish between tenant improvements made for personal benefit and those made to address deficiencies due to an unlawful property. This distinction is crucial for a fair assessment.
I refer back to responses to other issues. The tenant failed to evidence due process to address any deficiencies due to an unlawful property (or failure to maintain), such that any specific order should have followed. Consideration of New Evidence: •Section 109, Schedule 1A: The new evidence submitted, a statement from the supporting tenant on May 6, 2024, undermines his original statement and supports my claims regarding discussions with the house tenants and their issues with the landlord failing to maintain. This needs to be considered in a rehearing to ensure all relevant information is taken into account.
Another tenant made a written statement, being a positive reference regarding the landlord and his performance. This was submitted by the landlord prior to the hearing. I expressed my concern to the tenant at the time that he had written to the author of that written statement, essentially asking them to recant. Such an approach to a person providing written statements on behalf of the other party is inappropriate.
Regardless, the statements were of little evidential value.
I do not consider there are any grounds for a rehearing established here. Application of Precedent: •Section 85(2) of the Residential Tenancies Act 1986 emphasizes that the Tribunal must determine each dispute in a manner that is fair and just, considering the general principles of the law. •Section 109 of the Residential Tenancies Act 1986 guides the Tribunal in awarding exemplary damages, taking into account past similar cases to ensure consistency. •Section 27 of the New Zealand Bill of Rights Act 1990 ensures the right to justice and the observance of natural justice principles by any tribunal. The principle of following legal precedents is a cornerstone of New Zealand's common law system, ensuring consistency and fairness in judicial and quasi- judicial decisions. Precedent cases with similar circumstances resulted in higher compensations. The original decision did not appropriately consider these precedents, leading to a miscarriage of justice.
Address above. Dismissal of the rehearing application
A rehearing is not granted just because the applicant for the rehearing is unhappy with the determination.
Some grounds cited for the rehearing were not matters raised specifically in the tenant application, other issues were so historic that I referred to the Limitations Act 2010 and its application at the first hearing as well as in my order.
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.
Section 85 was raised by the tenant in the rehearing application, as it was in the order. The application and intent of that section applies to both tenant and landlord in this matter. It is clear the tenant is unhappy and seeks to ensure the landlord is punished. That the order may not have satisfied that desire is moot to any rehearing decision. The order was made after considering both parties submissions and the available evidence.
For the above reasons I do not consider the tenant has established grounds for a rehearing to be ordered and the application for a rehearing is dismissed.

Tenancy Tribunal case 4768179 — Rent arrears at 16 Blick Terrace, The Brook, Nelson 7010

At a glance

Tenancy Tribunal case 4768179 — Rent arrears at 16 Blick Terrace, The Brook, Nelson 7010

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