What was the outcome of Tenancy Tribunal case 4774798?

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

How much money was awarded in case 4774798?

Verified claim lines are listed on this page.

Where can I read the official tribunal order for case 4774798?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10443639-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4774798?

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

How much money was awarded in case 4774798?

Verified claim lines are listed on this page.

Where can I read the official tribunal order for case 4774798?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10443639-Tribunal_Order.pdf.

68 Amyes Road, Hornby, Christchurch 8042 Tenancy Tribunal Case 4774798 — Leaks

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the rehearing hearing.
On 10 April 2024 the Tribunal made orders returning the bond to the tenants and awarding compensation of $1,000 for breach of the landlord’s repair and maintenance obligations under s45 Residential Tenancies Act 1986.
The Tribunal also dismissed other claims made by the tenants.
Mr Colebourne applied for a rehearing on the grounds that a miscarriage of justice has occurred. In particular, he says that the home is warm and dry and any issues arose because of the way the tenants lived.
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. A rehearing may also be granted where there is new evidence that was not reasonably available (to the party relying on it) 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.
In the District Court Judgment of Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard, and that: [18] ... They most obviously apply ... to cases of procedural error eg a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available. [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.
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.
For completeness, I record that Mr Colebourne did not follow the correct procedure for submitting a rehearing application. He sent the rehearing application to Tenancy Services with an application against the tenants. This meant the rehearing application was received by the Tribunal outside of the 5 working day timeframe. However, I accept that Mr Colebourne’s intent was clear and have treated the rehearing application as if it was received within 5 working days of the 10 April 2024 Order.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Mr Colebourne has failed to establish the grounds for a rehearing.
Mr Colebourne’s rehearing application indicated that he did not want the rehearing application determined on the papers. So, the Tribunal was required to have a hearing to decide whether to grant a rehearing of the original matter. See Xpert Management Solutions Ltd v Bravo [2015] NZDC 1506, 9 February 2015, Judge de Ridder.
The Tribunal also noted that the rehearing application as submitted did not disclose any arguable ground for rehearing and asked Mr Colebourne to set out his grounds for rehearing.
All the matters raised by Mr Colebourne were evidential issues. Throughout the rehearing hearing, Mr Colebourne asserted that the Tribunal had decided that the premises were unhealthy. That was not the finding.
The Tribunal found that Mr Colebourne had breached his repair and maintenance obligations in relation to a ceiling repair. Timing of the damage was relevant to that finding. At the first hearing, Mr Colebourne asserted that the damage only appeared following Cyclone Gabrielle (in February 2023), whereas the photograph the tenants relied on was from an ingoing inspection report provided by Mr Colebourne’s property manager. The tenancy started in March 2022; the photograph of damage existed before Cyclone Gabrielle. So, Mr Colebourne’s assertion and evidence regarding the timing of leak was not accepted. In any event, the Tribunal’s factual finding regarding the timing and extent of the damage would have been a matter for appeal, not rehearing.
Mr Colebourne did not identify any matter of process or procedure which would given raise to a rehearing of the tenant application. The application for rehearing is dismissed.

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the rehearing hearing.
On 10 April 2024 the Tribunal made orders returning the bond to the tenants and awarding compensation of $1,000 for breach of the landlord’s repair and maintenance obligations under s45 Residential Tenancies Act 1986.
The Tribunal also dismissed other claims made by the tenants.
Mr Colebourne applied for a rehearing on the grounds that a miscarriage of justice has occurred. In particular, he says that the home is warm and dry and any issues arose because of the way the tenants lived.
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. A rehearing may also be granted where there is new evidence that was not reasonably available (to the party relying on it) 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.
In the District Court Judgment of Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard, and that: [18] ... They most obviously apply ... to cases of procedural error eg a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available. [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.
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.
For completeness, I record that Mr Colebourne did not follow the correct procedure for submitting a rehearing application. He sent the rehearing application to Tenancy Services with an application against the tenants. This meant the rehearing application was received by the Tribunal outside of the 5 working day timeframe. However, I accept that Mr Colebourne’s intent was clear and have treated the rehearing application as if it was received within 5 working days of the 10 April 2024 Order.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Mr Colebourne has failed to establish the grounds for a rehearing.
Mr Colebourne’s rehearing application indicated that he did not want the rehearing application determined on the papers. So, the Tribunal was required to have a hearing to decide whether to grant a rehearing of the original matter. See Xpert Management Solutions Ltd v Bravo [2015] NZDC 1506, 9 February 2015, Judge de Ridder.
The Tribunal also noted that the rehearing application as submitted did not disclose any arguable ground for rehearing and asked Mr Colebourne to set out his grounds for rehearing.
All the matters raised by Mr Colebourne were evidential issues. Throughout the rehearing hearing, Mr Colebourne asserted that the Tribunal had decided that the premises were unhealthy. That was not the finding.
The Tribunal found that Mr Colebourne had breached his repair and maintenance obligations in relation to a ceiling repair. Timing of the damage was relevant to that finding. At the first hearing, Mr Colebourne asserted that the damage only appeared following Cyclone Gabrielle (in February 2023), whereas the photograph the tenants relied on was from an ingoing inspection report provided by Mr Colebourne’s property manager. The tenancy started in March 2022; the photograph of damage existed before Cyclone Gabrielle. So, Mr Colebourne’s assertion and evidence regarding the timing of leak was not accepted. In any event, the Tribunal’s factual finding regarding the timing and extent of the damage would have been a matter for appeal, not rehearing.
Mr Colebourne did not identify any matter of process or procedure which would given raise to a rehearing of the tenant application. The application for rehearing is dismissed.

Tenancy Tribunal case 4774798 — Leaks at 68 Amyes Road, Hornby, Christchurch 8042

At a glance

Tenancy Tribunal case 4774798 — Leaks at 68 Amyes Road, Hornby, Christchurch 8042

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