Published tribunal order
Tenancy Tribunal case 4792418 — Rent arrears at 24B Croziers Road, St Albans, Christchurch 8052
Decided 29 Apr 2024 · Published 29 Apr 2024 · Application 4792418
Mixed / unclear
- Rent arrears
Order
on both applications. The tenant was ordered to pay the landlord $2,990.93 for rent arrears and vacated costs, $1,673.05 of which was by consent. The bond was awarded to the landlord.
- On 20 March 2024, the tenant applied for a rehearing on the grounds that the Tribunal was biased towards her, was dismissive, and was incorrect in its assessment of the evidence. Law on rehearing applications
- Section 105(1) of the Residential Tenancies Act 1986 (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’.
- In order to find that grounds for a rehearing exist, the applicant does not need to prove that an actual miscarriage of justice or substantial wrong occurred, but merely that prima facie such a situation exists, (Nixon v Brown (1989) DCR 404,406.
- In Wellington City Council v McMillan (2003) DCR 50, His Honour Judge Touhy confirmed that the words ‘substantial wrong or miscarriage of justice’ set a high standard. The Judge said: “They must obviously apply....to cases of procedural error e.g. A hearing which takes place in the absence of a party who has not been given notice of it; or the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may encompass the discovery of new and important evidence not previously available.... In my view, however, the words do not cover a complaint that the Tribunal was 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. Secondly, if a mere erroneous decision is enough, whether the error is factual or legal or both, it would enable the parties to in effect appeal by way of an application for a rehearing, and then again to the District Court against the grant or refusal of the application for rehearing. Not only does this 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.”
- 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, that they were not able to properly present their case, or that there is new evidence that was not reasonably available at the first hearing. They will also have to establish that the information that they wish to present could affect the outcome.
- Wellington City Council v McMillan establishes that if the Tribunal was simply wrong in its findings of fact or its application of the law, that is not sufficient to establish a miscarriage of justice. A rehearing will not be granted just because a party is unhappy with the decision, to give a party a second opportunity to present their case or as an alternative to an appeal.
Has a substantial wrong or miscarriage of justice occurred?
- For the following reasons the tenant has failed to establish any grounds for a rehearing.
- The tenant confirmed that she accepted the amount of rent arrears in the Tribunal’s order (the rent arrears order was made by consent). However, she wanted to address the ‘bigger picture’ and what she said was the poor way in which she was treated when rent arrears were wrongly recorded, resulting in breach notices.
- That is not an issue for a rehearing. As I noted in my order, the Tribunal is not a complaints forum. If the rent arrears amount is accepted (which it is) that is the end of the enquiry.
- The tenant said she did not seek a rehearing concerning the amounts awarded for rubbish removal and curtain replacement.
- The tenant does not accept the amounts ordered for garden work and repairs to the walls and ceilings.
- The tenant said the gardening work was done by the stepfather of the owner. That is not disputed. However, landlords can claim for their time or for the time of family members who do work. Here, the hourly rate sought for garden work is $30.00. The Tribunal considers that a reasonable amount for work done privately.
- The tenant said there was insufficient evidence to support the repair work. I have reviewed the evidence and I consider that it was sufficient to prove the landlord’s claim.
- The tenant has not produced any new evidence not available at the time of the hearing, that would have a material difference on the outcome.
- The tenant has accused the Tribunal of bias and rudeness towards her. She did not address that at the hearing today.
- A claim of bias is often made by an unsuccessful party. There was no bias. The Tribunal takes a disinterested approach and views the evidence objectively. That the result is not accepted does not establish bias.
- If the tenant perceived the Tribunal as rude towards her, I apologise for that. It was not my intention. However, as I recorded, the parties were candid about their mutual dislike of each other. When there is such antipathy, so clearly displayed, the Tribunal sometimes has to take a firm approach to ensure the proper running of the hearing. That the tenant thought me abrupt and aggressive (which I do not accept) does not establish grounds for a rehearing.
- This is a case where both parties were fully and fairly heard. There was no defect of process. There is no new evidence available that was not available at the time of the hearing that might result in a materially different outcome.
- That the tenant is unhappy with the Tribunal’s decision is not a ground for a rehearing. It is a ground for an appeal.
- For these reasons I dismiss the tenant’s application for rehearing.