What was the outcome of Tenancy Tribunal case 4855820?

The tribunal order states: The application by Alexander Foulkes for a rehearing is dismissed.

How much money was awarded in case 4855820?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4855820?

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

Where can I read the official tribunal order for case 4855820?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10935043-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4855820?

The tribunal order states: The application by Alexander Foulkes for a rehearing is dismissed.

How much money was awarded in case 4855820?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4855820?

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

Where can I read the official tribunal order for case 4855820?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10935043-Tribunal_Order.pdf.

Unit/Flat Unit 3, 144 Forbury Road, Saint Clair, Dunedin Tenancy Tribunal Case 4855820 — Rent arrears

Order

The application by Alexander Foulkes for a rehearing is dismissed.
The stay of proceedings of the Order of the Tribunal dated 9 September 2024 is lifted.

Reasons

Both parties attended the hearing, by telephone.
On 9 September the Tribunal made an order for the tenant to pay rent arrears and the filing fee, after deduction of the bond, of $2,860.44 to the landlord.
In addition, the Tribunal dismissed the tenant’s application for compensation of $6,360.00 and exemplary damages.
On 6 September 2024 Alexander Foulkes applied for a rehearing on the following summarized grounds: a. The tenant believed the decision was wrong and wanted to provide photographs and videos taken between 11 March and 2 June 2024 to support his case. b. The tenant wished to obtain legal advice about providing “written statements from building professionals highlighting the scale and impact of the disruption” affecting his quiet enjoyment of the premises. c. Statements from other people living at the property would be sought to confirm when they were notified of the work to be done the premises, which he believed was not until 30 January 2024. d. The tenant considered the flat was “unliveable” for a fourteen week period due to the work undertaken to replace the roof, spouting and pipes and repainting. e. The tenant believed his access to his flat was significantly restricted due to the scaffolding and materials used by tradespeople. f. The tenant did not consider the landlord had mitigated the situation and that the compensation offered by the landlord and included in the award was “s risible offer”. g. The tenant wanted mediation.
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”.
In the District Court judgement of 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, stating: “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. ... 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. 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 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 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.”
The High Court in Angelo v Lehr [2022] NZHC 3033 confirmed that it was not a miscarriage of justice to decline a rehearing just because evidence was not considered at the original hearing, when that evidence could have been produced at the original hearing.
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.
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, or they were not able to properly present their case. 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.
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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Alexander Foulkes has failed to establish the grounds for a rehearing: a. The fact that the tenant disagrees with the decision is not a ground for a rehearing. b. The Tribunal process did not disadvantage the tenant in any way. When the landlord filed a cross application and mediation did not occur, both applications were scheduled for hearing. c. The interests of justice require parties to put their best case forward at the initial hearing and both parties had ample opportunity to do this. d. The fact that the tenant did not provide video and other photographic evidence in his possession at the time of the initial hearing was his choice and does not mean that he is entitled to a ‘second chance’ by way of another Tribunal hearing. e. The landlord did not want a rehearing and highlighted that the evidence could have been provided at the original hearing and there was nothing new in what the tenant had subsequently provided.
I consider no substantial wrong or miscarriage of justice has occurred, and a rehearing is not appropriate.
The objective of the Tribunal is to determine expeditiously disputes arising between landlords and tenants.
Unfortunately, this dispute has been ongoing since the tenant made his application on 9/4/2024 and the landlord two days later. Scheduling of the hearing time was complicated due to the tenant having returned to the United Kingdom and then requiring an adjournment due to contracting Covid.
The tenant has made it clear that if his application for rehearing is unsuccessful then the decision will be appealed as a matter of “principal”.
No suppression is granted, because the landlord did not ask for suppression in the original order and the tenant has been unsuccessful.
As the application for rehearing is unsuccessful the stay ordered by the Tribunal on 18 September 2024 is lifted.

Order

The application by Alexander Foulkes for a rehearing is dismissed.
The stay of proceedings of the Order of the Tribunal dated 9 September 2024 is lifted.

Reasons

Both parties attended the hearing, by telephone.
On 9 September the Tribunal made an order for the tenant to pay rent arrears and the filing fee, after deduction of the bond, of $2,860.44 to the landlord.
In addition, the Tribunal dismissed the tenant’s application for compensation of $6,360.00 and exemplary damages.
On 6 September 2024 Alexander Foulkes applied for a rehearing on the following summarized grounds: a. The tenant believed the decision was wrong and wanted to provide photographs and videos taken between 11 March and 2 June 2024 to support his case. b. The tenant wished to obtain legal advice about providing “written statements from building professionals highlighting the scale and impact of the disruption” affecting his quiet enjoyment of the premises. c. Statements from other people living at the property would be sought to confirm when they were notified of the work to be done the premises, which he believed was not until 30 January 2024. d. The tenant considered the flat was “unliveable” for a fourteen week period due to the work undertaken to replace the roof, spouting and pipes and repainting. e. The tenant believed his access to his flat was significantly restricted due to the scaffolding and materials used by tradespeople. f. The tenant did not consider the landlord had mitigated the situation and that the compensation offered by the landlord and included in the award was “s risible offer”. g. The tenant wanted mediation.
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”.
In the District Court judgement of 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, stating: “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. ... 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. 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 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 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.”
The High Court in Angelo v Lehr [2022] NZHC 3033 confirmed that it was not a miscarriage of justice to decline a rehearing just because evidence was not considered at the original hearing, when that evidence could have been produced at the original hearing.
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.
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, or they were not able to properly present their case. 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.
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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Alexander Foulkes has failed to establish the grounds for a rehearing: a. The fact that the tenant disagrees with the decision is not a ground for a rehearing. b. The Tribunal process did not disadvantage the tenant in any way. When the landlord filed a cross application and mediation did not occur, both applications were scheduled for hearing. c. The interests of justice require parties to put their best case forward at the initial hearing and both parties had ample opportunity to do this. d. The fact that the tenant did not provide video and other photographic evidence in his possession at the time of the initial hearing was his choice and does not mean that he is entitled to a ‘second chance’ by way of another Tribunal hearing. e. The landlord did not want a rehearing and highlighted that the evidence could have been provided at the original hearing and there was nothing new in what the tenant had subsequently provided.
I consider no substantial wrong or miscarriage of justice has occurred, and a rehearing is not appropriate.
The objective of the Tribunal is to determine expeditiously disputes arising between landlords and tenants.
Unfortunately, this dispute has been ongoing since the tenant made his application on 9/4/2024 and the landlord two days later. Scheduling of the hearing time was complicated due to the tenant having returned to the United Kingdom and then requiring an adjournment due to contracting Covid.
The tenant has made it clear that if his application for rehearing is unsuccessful then the decision will be appealed as a matter of “principal”.
No suppression is granted, because the landlord did not ask for suppression in the original order and the tenant has been unsuccessful.
As the application for rehearing is unsuccessful the stay ordered by the Tribunal on 18 September 2024 is lifted.

Tenancy Tribunal case 4855820 — Rent arrears at Unit/Flat Unit 3, 144 Forbury Road, Saint Clair, Dunedin

At a glance

Tenancy Tribunal case 4855820 — Rent arrears at Unit/Flat Unit 3, 144 Forbury Road, Saint Clair, Dunedin

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