What was the outcome of Tenancy Tribunal case 4823298?

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

How much money was awarded in case 4823298?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4823298?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4823298?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11124300-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4823298?

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

How much money was awarded in case 4823298?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4823298?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4823298?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11124300-Tribunal_Order.pdf.

47 Cameron Way, Makarau, RD 3, Warkworth 0873 Tenancy Tribunal Case 4823298 — Exemplary damages

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which I conducted by phone today.
On 17 July 2024 the Tribunal made an order for the landlord to pay the tenants $3,270.44 for compensation and exemplary damages. The Tribunal dismissed the landlord’s application.
On 28 July 2024 the landlord applied for a rehearing on the grounds that she was overseas at the time of the hearing and not due to return until September or October and had evidence she wanted to produce to refute the tenants’ claims. Legal considerations
The law as it relates to re-hearings is set out in section 105(1) of the Residential Tenancies Act 1986 (RTA). The Tribunal has 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.
In Wellington City Council v McMillan [2003] DCR 50, the Court considered the meaning of ‘substantial wrong or miscarriage of justice’. The Court said: [18]....These are strong words which set a high standard. They most obviously apply, as the adjudicator pointed out, 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 by a witness. The words 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. First, the strength of the language in s105 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 an 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 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 a 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: 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.
I have quoted from these decisions to assist the landlord to understand the nature of an application for rehearing.

Has a substantial wrong or miscarriage of justice occurred?

The landlord’s case is based on the suggestion of a procedural error which, if established, would constitute a miscarriage of justice. She states that she was unable to attend the hearing due to her extended absence from New Zealand. Today, she said she was ‘out in the wilderness’ in the USA and therefore could not attend the hearing in person or by phone.
The difficulty with that is that the landlord was given approval to be represented at the hearing by her neighbour and property manager Ms Carter. She now states that Ms Carter was not prepared to address the matters raised by the tenants (nor presumably to present the matters raised in the landlord’s application).
It was the landlord’s choice to instruct Ms Carter to represent her. That she now regrets that choice believing that Ms Carter was not able to adequately represent her, does not establish a procedural error or miscarriage of justice.
The applications were each disclosed to the other party, so they were aware of the issues each had raised against the other.
That the landlord might not have fully or properly briefed her representative might be a matter of regret. But it would be objectively unfair to the tenants to require them to attend another hearing afresh just because the landlord is not happy with how her interests were represented by the person she chose to represent her.
The evidence the landlord now wishes to place before the Tribunal (text messages, emails, and voice recordings) is all evidence that was available at the time of the hearing which could have been provided to Ms Carter as the landlord’s authorised representative to produce.
There was no procedural error in this case. The parties were notified of the hearing; they were each made aware of the other’s application; the landlord was given approval to be represented; and the hearing went ahead on that basis. But the landlord does not like the result believing that as she is now back in the country, she could do a better job. That, unfortunately, is not a ground for a rehearing.
Because the landlord has failed to establish the grounds for a rehearing, the application for rehearing is dismissed.
The stay of proceedings previously granted pending the hearing of the rehearing application is now lifted. The Tribunal’s order dated 17 July 2024 may now be enforced.

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which I conducted by phone today.
On 17 July 2024 the Tribunal made an order for the landlord to pay the tenants $3,270.44 for compensation and exemplary damages. The Tribunal dismissed the landlord’s application.
On 28 July 2024 the landlord applied for a rehearing on the grounds that she was overseas at the time of the hearing and not due to return until September or October and had evidence she wanted to produce to refute the tenants’ claims. Legal considerations
The law as it relates to re-hearings is set out in section 105(1) of the Residential Tenancies Act 1986 (RTA). The Tribunal has 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.
In Wellington City Council v McMillan [2003] DCR 50, the Court considered the meaning of ‘substantial wrong or miscarriage of justice’. The Court said: [18]....These are strong words which set a high standard. They most obviously apply, as the adjudicator pointed out, 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 by a witness. The words 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. First, the strength of the language in s105 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 an 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 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 a 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: 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.
I have quoted from these decisions to assist the landlord to understand the nature of an application for rehearing.

Has a substantial wrong or miscarriage of justice occurred?

The landlord’s case is based on the suggestion of a procedural error which, if established, would constitute a miscarriage of justice. She states that she was unable to attend the hearing due to her extended absence from New Zealand. Today, she said she was ‘out in the wilderness’ in the USA and therefore could not attend the hearing in person or by phone.
The difficulty with that is that the landlord was given approval to be represented at the hearing by her neighbour and property manager Ms Carter. She now states that Ms Carter was not prepared to address the matters raised by the tenants (nor presumably to present the matters raised in the landlord’s application).
It was the landlord’s choice to instruct Ms Carter to represent her. That she now regrets that choice believing that Ms Carter was not able to adequately represent her, does not establish a procedural error or miscarriage of justice.
The applications were each disclosed to the other party, so they were aware of the issues each had raised against the other.
That the landlord might not have fully or properly briefed her representative might be a matter of regret. But it would be objectively unfair to the tenants to require them to attend another hearing afresh just because the landlord is not happy with how her interests were represented by the person she chose to represent her.
The evidence the landlord now wishes to place before the Tribunal (text messages, emails, and voice recordings) is all evidence that was available at the time of the hearing which could have been provided to Ms Carter as the landlord’s authorised representative to produce.
There was no procedural error in this case. The parties were notified of the hearing; they were each made aware of the other’s application; the landlord was given approval to be represented; and the hearing went ahead on that basis. But the landlord does not like the result believing that as she is now back in the country, she could do a better job. That, unfortunately, is not a ground for a rehearing.
Because the landlord has failed to establish the grounds for a rehearing, the application for rehearing is dismissed.
The stay of proceedings previously granted pending the hearing of the rehearing application is now lifted. The Tribunal’s order dated 17 July 2024 may now be enforced.

Tenancy Tribunal case 4823298 — Exemplary damages at 47 Cameron Way, Makarau, RD 3, Warkworth 0873

At a glance

Tenancy Tribunal case 4823298 — Exemplary damages at 47 Cameron Way, Makarau, RD 3, Warkworth 0873

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