Published tribunal order
Tenancy Tribunal case 4860765 — State of repair
Decided 12 Jan 2025 · Published 12 Jan 2025 · Application 4860765
- State of repair
- Healthy homes
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details.
- The application for rehearing is dismissed.
Reasons
- Both parties attended the hearing.
- A Farsi interpreter supported the landlord, who had a different English speaking representative represent him at the hearing to the one that represented him at the original hearing on 8 July 2024.
- It is of note the original representative refused to attend the hearing as a witness to support the landlord’s claims for a rehearing, despite being ordered to do so by the Tribunal. This is contempt of the Tribunal Order, for which a penalty could be ordered. I have decided not to do so, as it is the landlord who has been disadvantaged by the witness’s failure to attend the hearing in person as ordered in the Tribunal’s 11 August 2024 Order. The Tribunal had the tenant party on the phone and was unable to bring a further party into the call. Hence the request for the witness to attend in person. Originating 14 July 2024 Order
- On 14 July 2024 the Tribunal made an order for the landlord to pay the tenants $17,140.44 immediately, calculated as shown in table below: Description Landlord Tenant Exemplary damages: (Failure to maintain)$2,400.00 Compensation: (For deck -1/8/23 to 3/10/24 (9 weeks at $50 per week) and 4/10/23 to 2/4/24 (26 weeks at $30 per week))$1,140.00 Compensation: (for leak- 1/8/23 to 8/10/23 (9 weeks and 5 days at $50 per week) and wet wall from 5/9/23 to 2/4/24 (30 weeks at $100 per week))$3,485.71 Exemplary damages: (Failure to meet healthy homes standards)$2,400.00 Compensation: (No extractor fan in kitchen from 23/08/21 to 02/04/24 136 weeks and 1 day at $30 per week)$5,444.29 Exemplary damages: (Failure to appoint and agent when overseas for more than 21 consecutive days)$750.00 Exemplary damages: (Breach of quiet enjoyment)$1,500.00 Filing fee reimbursement $20.44 Total award $17,140.44 Total payable by the landlord to the tenant$17,140.44 Landlord’s stated grounds for a rehearing
- On 1 August 2024, the landlord applied for a rehearing on the grounds that: a. An Arabic instead of a Farsi interpreter was requested by the tenants in their application and the landlord was unable to understand the tenants claims and evidence fully or communicate his defence adequately, as he did not have an interpreter, therefore a serious miscarriage of justice occurred and he should be granted a rehearing so he can have equal access to justice; b. He submitted his first rehearing application in time and was denied a rehearing because the Adjudicator stated incorrectly that his first application for rehearing was made on 25 July 2024 when it was made on 22 July 2024; c. He did not receive the video evidence relating to the deck prior to the hearing and could not see it when the tenants played it during the video hearing as he had trouble connecting to the video hearing and appeared by telephone; d. He was surprised when the Adjudicator “made an overarching decision based on a mixture of fact and opinion”, “despite the applicant’s failure to provide compelling evidence” and he has “since gathered new evidence to support his position”; e. He initially “believed that many of the claims made by the applicants would not even be heard by the Tribunal or considered seriously” and “ was confident the applicant would be unable to prove the necessary evidence to support the claims:, so “did not see the need to submit extensive evidence during the original hearing” and following the original Order found himself in a position where he had to obtain evidence to disprove the facts and findings in the original Order. He says his intention in gathering this new evidence, evidence that was available to him for the original hearing with reasonable diligence, was not to bolster his case but to “demonstrate the applicants contentions are not grounded in fact”; f. His son, that represented him “did not have a complete understanding of the facts” and “having the wrong interpreter exacerbated this problem”; g. The witness statement, from Christopher Vincent, provided by the landlord to the Tribunal on 1 August 2024 was not effectively communicated during the original 8 July 2024 hearing due to the interpreter issue and a rehearing would allow this critical evidence to be presented an understood accurately, potentially altering the outcome of the remedies awarded to the tenants.
- 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”.
- 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 the landlord has failed to establish the grounds for a rehearing. Interpreter
- The tenants made a request for an Arabic instead of a Farsi interpreter in their application. The landlord was able to make a separate request for a Farsi interpreter if he so chose. He confirmed he had the application form in advance of the original 8 July 2024 hearing and his first chosen representative, his son, confirmed at the start of that hearing: a. He had gone through the application with his father and had noted the request for an Arabic interpreter on the application form and had conveyed this to his father; and b. He was “representing” his father and “we speak Farsi not Arabic”, “I can speak English, no problem whatsoever” and “the interpreter can go as I don’t need an interpreter anyhow”.
- When I asked him to ask his father if he wanted to continue with the hearing with his son representing him, he stated that his father wanted to continue with the hearing and “he doesn’t need an interpreter” as he can” ask me if he doesn’t understand something”.
- During the 9 January 2025 hearing, the landlord proved he understood a lot of what was being said without the need for the interpreter but sometimes used the interpreter to convey his more detailed responses. He also confirmed that he had made the decision to continue with the 8 July 2024 hearing as he was going through cancer treatment and just wanted to get the hearing over with and move on. He also accepted he had agreed for his son to represent him and had waived his right to have the hearing adjourned so a Farsi interpreter could be arranged to assist him.
- The landlord accepted that he could not waive his right to an interpreter and then use that excuse to justify a rehearing when he did not get the outcome, he wanted from the original 8 July 2024 hearing. First rehearing application
- The landlord stated there had been a miscarriage of justice because he submitted his first rehearing application in time and was denied a rehearing because the Adjudicator stated incorrectly that his first application for rehearing was made on 25 July 2024 when it was made on 22 July 2024.
- I explained to the landlord that the first rehearing application had failed on the grounds submitted by him to justify a rehearing, not just because I had incorrectly recorded the application was made out of time. I also confirmed the application was stamped by registry as 25 July 2024 and the applicant had not correctly dated the first rehearing application form. Further, this rehearing consideration hearing was to hear the second rehearing application grounds and not to rehear the reasons I had dismissed his first rehearing application.
- Lastly, I explained that he had succeeded in getting a rehearing consideration hearing with his second application, so the first rehearing application was no longer relevant. Video evidence
- The landlord says he did not receive the video evidence relating to the deck prior to the hearing and could not see it when the tenants played it during the video hearing as he had trouble connecting to the video hearing and appeared by telephone; as such he was disadvantaged and unable to respond to the video evidence and as such a miscarriage of justice had occurred as he may have been able to mount a defence to the video that would have significantly impacted the outcome and remedies ordered.
- I explained to the landlord the video date stamp was used by the Tribunal to confirm the date the remedial work had been done on the deck and to confirm the dates of the photographs provided by the tenants was correct.
- The landlord was unable to explain what defence he would have had to the date stamp on the video being used to confirm the date he carried out the remedial work and how his defence would have significantly impacted the outcome and remedies ordered.
- I am satisfied the landlord did not see the video until after the original 8 July 2024 hearing but the landlord has been unable to prove how this impacted the outcome of the hearing or resulted in a miscarriage of justice. New evidence
- The evidence given by the landlord to justify why the new evidence he had gone out to gather after receiving the 14 July 2024 Order is as follows: a. He was surprised when the Adjudicator “made an overarching decision based on a mixture of fact and opinion”, “despite the applicant’s failure to provide compelling evidence” and he has “since gathered new evidence to support his position”; b. He initially “believed that many of the claims made by the applicants would not even be heard by the Tribunal or considered seriously” and “ was confident the applicant would be unable to prove the necessary evidence to support the claims:, so “did not see the need to submit extensive evidence during the original hearing” and following the original Order found himself in a position where he had to obtain evidence to disprove the facts and findings in the original Order; and c. His intention in gathering this new evidence was not to bolster his case but to “demonstrate the applicants’ contentions are not grounded in fact”.
- I am not persuaded that the new evidence which the landlord seeks to introduce was not available to him with reasonable diligence for the original hearing. There is no apparent reason why that evidence was not provided before or at the hearing, given that the claims raised by the tenant and the date for the hearing were notified well in advance.
- The landlord in his second application for a rehearing is suggesting he considers the Tribunal’s decision to be wrong in fact and law, so the Adjudicator could not have fully considered his evidence and gave to much credence to the tenants’ evidence. A rehearing is not an opportunity for a party to have a second opportunity to present and/or relitigate its case or to present a better case, nor is it an alternative to an appeal. Unhappy with first representative
- The landlord in his application states that his son, that represented him “did not have a complete understanding of the facts” and “having the wrong interpreter exacerbated this problem”.
- I listened to the recording of the original 8 July 2024 hearing and in the first 5minutes of the hearing I check repeatedly with the landlord party whether he was happy being represented by his son and not having a Farsi interpreter and he confirmed three times that he wanted his son to represent him, his son spoke good English and he wanted to continue the hearing with his son representing him.
- The landlord also confirmed at the rehearing consideration hearing that he had agreed to continue the original hearing with his son representing him but then after the fact he considered that his son had not done a good job representing him as he was unhappy with the outcome achieved.
- A rehearing is not a second opportunity to get a better representative to present a better case, nor is it an alternative to an appeal. Witness evidence not considered at original hearing
- The landlord claims the witness statement, from Christopher Vincent, provided by the landlord to the Tribunal on 1 August 2024, was not effectively communicated during the original 8 July 2024 hearing due to the interpreter issue. Further, a rehearing would allow this critical evidence to be presented an understood accurately, potentially altering the outcome of the remedies awarded to the tenants.
- The landlord confirmed the witness statement had been gathered after the original hearing to support the rehearing application. As such, the lack of a Farsi interpreter at the original 8 July 2024 hearing could not have resulted in this witness statement not effectively communicated during the original 8 July 2024 hearing.
- The witness statement could have been obtained with reasonable diligence for the 8 July 2024 original hearing and it was not.
- A rehearing application is not an opportunity for the landlord to seek to have this “new evidence” considered by the Tribunal when he should have submitted this to the Tribunal prior to or at the original hearing on 8 July 2024 and the lack of interpreter at the first hearing had no bearing on the landlord’s ability to effectively communicate its contents to the Tribunal as it was never filed before or during that hearing. Conclusion
- I do not find, on balance, that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
- The 14 July 2024 Order stands and is enforceable. Appeal rights
- The landlord has indicated he intends to appeal the 14 July 2024 original Order out of time.
- The landlord is statutorily barred from appealing the 14 July 2024 original Order, unless the District Court accepts his application to appeal the Order out of time. Statutorily, he had 10 working days from 14 July 2024 to appeal the originating Order, being 28 July 2024.
- The landlord has also indicated that he intends to appeal my decision not to grant a rehearing, as he considers a substantial miscarriage of justice has occurred. The reason he gives for not agreeing with my dismissal of his rehearing application is that he was unable to gather evidence to defend the tenants claims until after he received my original Order and the new evidence he has gathered, despite being available with reasonable diligence to him and his agents before the originating hearing, should be admitted as new evidence and a rehearing granted as he says it proves the facts in the 14 July 2024 Order are wrong. Appealing this Order to the District Court within 10 working days is an option open to the landlord.
- Filing a notice of appeal from the Tenancy Tribunal to the District Court does not automatically act as a stay of enforcement proceedings. As such, the tenants can now undertake enforcement proceedings, unless the landlord files one or more appeals in the District Court and the District Court orders a stay of enforcement proceedings.