What was the outcome of Tenancy Tribunal case 4811837?

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

How much money was awarded in case 4811837?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4811837?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4811837?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10615631-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4811837?

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

How much money was awarded in case 4811837?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4811837?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4811837?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10615631-Tribunal_Order.pdf.

Unit/Flat 1, 32 Esmonde Road, Takapuna, Auckland 0622 Tenancy Tribunal Case 4811837 — Rent arrears

Order

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

Reasons

The landlord has applied for a rehearing of an order issued by the Tribunal dated 23 March 2024.
I will not set out a summary of that order in detail but note it related only to a tenancy at 1/32 Esmonde Road, Takapuna. The order considered applications from both the tenant and landlord. In terms of the tenant claims, the Tribunal ordered the landlord to pay exemplary damages for harassment and failure to maintain. In terms of the landlord’s claims, none of those claims were successful. They included claims for rent arrears, damage to the premises, an unlawful collateral agreement with the owner, and ‘evicting’ other tenants.
On 27 March 2024 the landlord applied for a rehearing. The full reasons given for seeking a rehearing were that: I was asked by the court to appeal this matter. I went to cour to submit my appeal, but I was refused by court staff and Mr Anderson to submit my appeal or to give my defense. Mr John Hepi owes alot of money for unpaid rental and now I must pay him. The court made reference to the Respondent being the Landlord as Llewellyn Burchell but this is incorrect as I am not the Landlord, merely an employee of The Guest Home. They are the [Errors in original application]
On 3 April 2024 I directed that a telephone hearing be convened in order to hear the application for rehearing, and directed that a stay apply until the rehearing was considered. I note that in my directions, I set out the relevant law that applies to rehearings, as I have copied below under the heading relevant legal considerations, I did that to be sure the parties knew what I would be considering.
Tenancy Services scheduled a telephone hearing today, 23 July 2024, in order to consider if the rehearing request would be approved.

RELEVANT LEGAL CONSIDERATIONS

Section 105 of the Residential Tenancies Act 1986 relates to rehearings. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
The applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, 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.”
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. 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.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.

ANALYSIS

I begin by noting that at the hearing today, Mr Burchell applied for an adjournment, stating that his wife is very unwell. The request for an adjournment was opposed by Mr Hepi, who considered the landlord was simply stalling. In the circumstances, I declined to approve the adjournment. I am aware that no medical evidence has been presented to support the adjournment request, and I accept that a delay would impact Mr Hepi, given an order had been made that the landlord pay him $4,600.00, and Mr Hepi would be prohibited from enforcing that order while a stay applied. Further as I advised, Mr Burchell had not identified any arguable grounds for a rehearing (as I will discuss below), and in those circumstances, I did not consider it fair to delay the matter. Mr Burchell was advised that his application for adjournment was declined.
I asked Mr Burchell why a rehearing should be approved. Mr Burchell stated that the Tribunal did not have all of the information available, such as work needed to clear out drug related material from the tenancy.
Mr Burchell said that “his application needs to be heard as well”. Mr Burchell said that Mr Hepi was a tenant in another property and that needs to be dealt with.
Having considered the reason set out in the application for a hearing, as well as those summarised above, I cannot see grounds for a rehearing as being established, in particular, I cannot see a substantial wrong or miscarriage of justice, or even the potential for either situation, for these reasons. a. It is not relevant for the purpose of this rehearing consideration, whether an appeal has been filed with the District Court in relation to the original order, or advice that the registry may have provided in relation to that, or actions of the registry in relation to the appeal. Those are matters for the District Court, not the Tenancy Tribunal. b. If the landlord considered that the Tribunal’s decision to accept that he was the landlord, was incorrect, then that would be a matter that the landlord could pursue in the District Court under appeal, as a challenge to the Tribunal’s finding of fact. c. I do not accept that the landlord’s claims were not considered, the claims advanced by the landlord were considered as set out in the order from 23 March between paragraphs 58 to 96. d. The landlord has not identified with sufficient particularity, what information the Tribunal did not have available, or explain why that could not have been provided to the Tribunal at the hearing, or better still in advance of the hearing. In order to establish that this would be a ground for a rehearing, Mr Burchell must explain why this was not put before the Tribunal, and that it was relevant information that may have changed the outcome. e. This order only related to the tenancy at Esmonde Road. As I noted in the order from 23 March 2024: ...Mr Hepi initially entered into a rental agreement with the landlord at premises in Eban Avenue in Hillcrest, Auckland. As I understand matters, Mr Hepi initially moved into the Eban Avenue premises, and then within a matter of weeks, transferred to Esmonde Road. ... As discussed above, these applications relate to the premises Esmonde Road. I can see that both parties also have disputes in relation to the property as Eban Avenue. I will express no view as to any matters in relation to the Eban Avenue property, because that is not before me. If either party wishes to pursue claims in relation Eban Avenue, then those will need to be the subject of further and separate claims. Accordingly, if there is any outstanding grievance either party has about Eban Avenue, then they can file new applications about that, but it does not show any error with the order from 23 March 2024
No grounds for approving a rehearing have been established, the application is therefore dismissed. It must follow that the stay that had been ordered is lifted, meeting Mr Hepi can enforce the original order.

Tenancy Tribunal case 4811837 — Rent arrears at Unit/Flat 1, 32 Esmonde Road, Takapuna, Auckland 0622

At a glance

Tenancy Tribunal case 4811837 — Rent arrears at Unit/Flat 1, 32 Esmonde Road, Takapuna, Auckland 0622

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions