What was Tenancy Tribunal case 4847005 about?

This case concerned a healthy homes dispute.

How much money was awarded in case 4847005?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4847005?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4847005?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10904677-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4847005 about?

This case concerned a healthy homes dispute.

How much money was awarded in case 4847005?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4847005?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4847005?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10904677-Tribunal_Order_Redacted.pdf.

9A Connaught Terrace, Brooklyn, Wellington 6021 Tenancy Tribunal Case 4847005 — Healthy homes

Reasons

This decision relates to an application for rehearing filed by the landlords. Background
On 3 July 2024 the Tribunal issued a decision on a claim filed by the tenants. The Tribunal declared that the open plan kitchen and dining room was the ‘main living room’ for the purpose of the Healthy Homes Standards (HHS). The relevance of that finding, is that a heat pump (or other qualifying heater) needs to be provided to heat the main living room. At the hearing the landlord submitted it was a different room, the ‘lounge’ should be deemed the main living room. The landlord was also ordered to pay exemplary damages for a breach of the ventilation standard of the HHS in relation to the kitchen extractor fan, and also general damages for a breach of the tenant’s quiet enjoyment of the tenancy. Name suppression was ordered for the tenants because the tenants had applied for name suppression, and in the Tribunal’s assessment they were substantially successful.
I must note that there were various claims that the tenants did not succeed with.
The landlord subsequently applied for a rehearing on the grounds that: a. The decision included an architectural plan, recording the address of the premises and the name of the architect; and b. That name suppression had been ordered for the tenants.
On 30 July 2024 I ordered a telephone hearing be convened to consider the landlord’s request for a rehearing. In my order, I set out a summary of the relevant law that applies around rehearings, which I will also set out below in this decision. I note for completeness that the parties were advised that: In order to decide whether a rehearing will be approved, a telephone hearing will be scheduled so that I can hear from both parties on that matter. Landlords case
The landlord’s position is that a rehearing should be granted in relation to two particular matters, that is an architect’s plan in the order, and name suppression.
In relation to the architects plans, the name of the architect is recorded as is the address of the premises. Further the layout of the premise is published. The landlord states that the architect did not know they were using the plan.
Secondly the landlord considers that name suppression should be available to the landlord, given they were as numerically successful in the claims compared with the tenants. The landlord submits that name suppression cannot be considered until the order is issued, and they were not given an opportunity in the hearing to request name suppression.
Otherwise the landlord does not take issue with the substance of the decision. Tenants case
The tenants do not support the request for rehearing.
The tenant states that the landlord has given notice terminating the tenancy so the premises can go on the market, so it would be likely that when the premises are listed for sale the plan would also be on the advertisement. The tenants consider it is not of any moment that the architects name is published.
The tenant consider that name suppression should not be granted to the landlord given what the landlord put the tenants through. Relevant law
Decisions issued by the Tribunal are binding on both parties, however the Residential Tenancies Act 1986 (RTA) allows either party to apply for a rehearing. In particular section 105 of the RTA relates to rehearing’s. 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.
If a rehearing is granted, then the Tribunal would direct that the whole or part of the original hearing be held again.
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.
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
The matter I must determine, is whether a rehearing should be approved for the landlord.
I have set out the relevant law above. When a court or tribunal issues a decision, it is normally final, and binding not only on the parties but the judicial body. There are only limited times when a decision can be reconsidered, and that is principally by way of a successful rehearing request or appeal. There is an ability to correct minor errors such as drafting or calculation errors, but that is not relevant here.
It is not at all uncommon for a party to disagree with what an adjudicator or judge has written in a decision, but that is not enough to have the decision redrafted and reissued.
The law in relation to rehearings is set out above, but in order for a rehearing to be approved, the question is whether there has been a substantial wrong or miscarriage of justice or even the potential for that. As the courts have confirmed, a rehearing cannot be granted just because a party is dissatisfied with the outcome or finding of the Tribunal. That must logically include what is in the decision or how it is drafted.
In relation to the two grounds for the rehearing request, I will address them in turn. Architects plans
It is the case that I determined a copy of the floor plan should be included in the order to illustrate the layout of the premises. That was necessary in my assessment for a reader of the decision to properly understand the issues for the parties. Including the plan was intentional to that extent.
It was submitted that reference to the architectural plans has breached the Privacy Act 2020. The Privacy Act does not apply to courts or tribunals acting judicially, which the Tenancy Tribunal was doing in drafting and issuing the decision (see section Privacy Act, section 8(a)(iv)).
But there is nothing at all unusual about a judicial decision referring to a professional’s work, for example, where relevant, referring to a firm of solicitors, a building company, an assessor or even an architect.
I have received no evidence from the architect that they have concerns over their name being seen in the order, and neither can I accept there would be a legitimate privacy exception with the name being visible.
Neither can I see any legitimate privacy issues with the layout of the premises being shown in the order. It must be remembered that the plans were submitted by the landlord in the proceeding, and further, it was open to the tenant to also provide a plan of the premises they were renting if the tenants wished.
I find that no potential substantial wrong or miscarriage of justice arises in relation to the inclusion of the architect’s plans. Name suppression
The landlord seeks a rehearing so they can apply for name suppression.
There is a statutory expectation that proceedings of the Tribunal are public proceedings (Residential Tenancies Act 1986 (RTA) s95), and that decisions of the Tribunal are published (RTA s115B).
There are only limited grounds on which the Tribunal could suppress any information, including names, and that is found in section 95A which holds at subsection 1: The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The landlord submitted that this provision can only be applied after the decision is issued, meaning that an application can only be filed once the matter is decided. I disagree.
It was submitted that the way this provision is drafted, means the application can only be made following the decision. This provision sets out an obligation on the Tribunal, not the parties. What this provision says in effect, is that if a party has applied for name suppression, if that party has been wholly or substantially successful, that the Tribunal must order name suppression.
If the landlord’s position was correct, that would mean that in every decision the Tribunal issues, the order could not be published, and that the Tribunal would then need to invite the parties to apply for name suppression. That is not the process of the Tribunal, and not at all consistent with the Tribunal’s statutory requirement to act expeditiously.
It was open to the landlord to have requested name suppression at the hearing or prior, but no request was made. It is not the practice of the Tribunal to raise with parties that they are able to make various applications if they wish, because to do so would be to advocate for one party or the other, which is against the expectation of independence of the decision maker.
I note that on the application form submitted by the tenant is a preformatted box where the applicant (the tenants in this case) are asked if they are seeking name suppression. It should have been seen from a plain reading of that form provided to the landlord, that name suppression could be requested prior to the hearing.
However, it is fair to record for completeness, that even if a rehearing was granted on the name suppression request, it is unlikely I would order name suppression for the simple reason that I do not consider the landlords had been substantially successful. The primary claim was around the living area, and tenants were successful in that. The tenants also established an unlawful act by the landlord with ventilation, and obtained general damages for a breach of their quiet enjoyment. By a comfortable margin I would say the tenants were substantially successful, the landlord was not.
Even if the landlord had been substantially successful, given the breach of the tenant’s privacy (the quiet enjoyment claim), I would have been unlikely to order name suppression, because there is a strong public interest in the landlord’s names being published in those circumstances.
The Tribunal has a residual discretion under section 95A(4) to order name suppression to a non-successful party, but I cannot see any rightful basis upon which I could exercise that discretion.
For the above reasons, the landlord’s application for rehearing is dismissed.

Tenancy Tribunal case 4847005 — Healthy homes at 9A Connaught Terrace, Brooklyn, Wellington 6021

At a glance

Tenancy Tribunal case 4847005 — Healthy homes at 9A Connaught Terrace, Brooklyn, Wellington 6021

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions