What was Tenancy Tribunal case 4881824 about?

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

How much money was awarded in case 4881824?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4881824?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4881824?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11251768-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4881824 about?

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

How much money was awarded in case 4881824?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4881824?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4881824?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11251768-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4881824 — Cleanliness

Order

The application for rehearing is dismissed.

Reasons

On 06 November 2024, the Tribunal made a finding that a term of the tenancy agreement requiring the carpet to be professionally cleaned at the end of the tenancy, in exchange for permission to keep cats at the property, was justified under section 11 of the Residential Tenancies Act 1986 (The “Act”).
On 12 November 2024, the tenant applied for a rehearing challenging the Tribunals finding.
The tenant’s application is provided in full below: Detailed Argument I. Unenforceable Professional Cleaning Requirement: oTenancy Services have informed me that a requirement to have the carpets 'professionally' cleaned and flea treated is unenforceable because it is a higher standard than what is required by the RTA.
Guidelines from Tenancy Services: oThe Tenancy Services website clearly states: "Any conditions that hold the tenant to a higher standard than the RTA requires will have no effect. A landlord cannot enforce what is outside the law, and tenants cannot agree to give up rights they have under the RTA." oThe rules about pets focus on behaviour and potential damage, not the mere existence of pets.
Legal Compliance of Added Conditions: oFor any added condition to be enforceable, it must comply with the RTA's legal standards. The order's point 60 justifies the condition but fails to recognize that it must also comply with the RTA.
Confirmation from Tenancy Services: oThe Tenancy Services Website confirms that a requirement to have carpets 'professionally' cleaned is unenforceable: "Tenants do not have to have the carpets professionally cleaned."
Costs and Compliance: oItem 62 in the Order states that the landlord is entitled to be returned to the position they would have been in had the tenant not breached the agreement. However, the award of costs ignores the need for the requirement to be both reasonable and compliant with the RTA. The RTA demands that the prope1iy should be reasonably clean and tidy.
Flea Movement and Prevention: oFleas can move via humans, furniture, clothing, wild animals, and neighbours' pets. I have consistently defleaed my cats, fumigated the home, and used a powerful vacuum cleaner, the Kirby G4, known for its strong suction. There was never a flea infestation during my tenancy.
Effectiveness of Vacuuming: oVacuuming is crucial for controlling flea populations by removing fleas, larvae, and eggs. Strong suction and a HEPA filter increase effectiveness.
Ultra Vires: oItem 62 seeks to rewrite the requirements of the RTA, which is beyond its legal power.
Request for Rehearing: oTherefore, I humbly request that item 62 be reheard by the Tenancy Tribunal.
In summary, the tenant submits a finding that a condition allowing the tenant to keep a cat at the property in exchange for having the carpets professionally cleaned at the end of the tenancy was justified, was a determination not available to the Tribunal. The tenant submits this finding was ultra vires, beyond the Tribunal’s jurisdiction.
The tenant argues that any exclusion under Section 11 must not exceed the obligations imposed by the Act.
The tenant argues the condition concerned is inconsistent with the provision of the Act because it imposes obligations exceeding those prescribed by the Act.
The tenant submits the term is void ab initio and should not have been included in the agreement.
The tenant submits that while conditions mitigating potential damage or nuisance may be justified under section 11, they argue in this case, professional carpet cleaning does not fall within this category. Although the tenant agreed to the inclusion of this condition in the agreement, they contend it was unjustified because keeping a cat does not necessarily result in damage or nuisance. Furthermore, there was insufficient evidence to suggest that the carpet had been left unclean. Law
Section 105(1) of the Act 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.
In Wellington City Council v McMillan [2003] DCR 50 the Court was of the view that s 105 required a high threshold be met, stating: [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.”

Has a substantial wrong or miscarriage of justice occurred?

The tenant’s argument is that the Tribunal has been wrong in its application of the law.
The tenant accepts that an argument the Tribunal has made an error applying the law does not constitute grounds for a rehearing under section 105 of the Act, as established in Wellington City Council v McMillan. However, it may provide grounds for an appeal.
The tenant submits that, as their right of appeal to the District Court is barred under section 117(2), (the amount in dispute is less than $1,000.00), it is in the interests of justice that the Tribunal, provided it is satisfied there has been an error amounting to a miscarriage of justice, to grant the application for a rehearing.
Despite an error in the application of the law not constituting grounds for rehearing under section 105, as opposed to an appeal, can the Tribunal nevertheless consider such grounds. Law
The grounds under which a party may appeal to the District Court set out in section 117 of the Act: (1) Subject to subsection (2) of this section, any party to any proceedings before the Tribunal who is dissatisfied with the decision of the Tribunal in the proceedings may appeal to [the District Court] against that decision. [(1A) A decision referred to in subsection (1) includes the decision to grant, or refuse to grant, an application under section 105 for a rehearing.] (2) No appeal shall lie— (a) against an interim order made under section 79 of this Act; or [(b) against an order, or the failure to make an order, for the payment of money where the amount that would be in dispute on appeal is less than $1,000; or] [(c) against a work order, or the failure to make a work order, where the value of the work that would be in dispute on appeal is less than $1,000.] (3) [The District Court has] jurisdiction to hear and determine an appeal under this section notwithstanding any limits imposed on such courts in their ordinary civil jurisdiction by [sections 74 to 79 of the District Court Act 2016]. (4) The provisions of section 85 of this Act, with any necessary modifications, shall apply in respect of the hearing and determination by [the District Court] of an appeal brought under this section. (5) An appeal under this section shall be brought by the filing of a notice of appeal... in the District Court nearest to the place at which the Tribunal sat in the proceedings to which the appeal relates. (6) Every such notice of appeal shall be filed within 10 working days after the date of the decision to which the appeal relates. (7) As soon as practicable after a notice of appeal has been filed under this section, the Registrar of the Court shall cause a copy of the notice to be lodged with the Tribunal's records relating to the proceedings to which the appeal relates, and, on receipt of that copy, the Registrar of the Tribunal shall send the Tribunal's file on the matter to the Court. (8) The Registrar of the Court shall fix the time and place for the hearing of the appeal and shall notify the appellant. (9) A copy of every notice of appeal together with a notice of the time and place for hearing the appeal shall be served by the Registrar on the other party to the proceedings before the Tribunal, and that party may appear and be heard. (10) The filing of a notice of appeal under this section shall not operate as a stay of proceedings, unless the Tribunal or a District Court Judge, on application, so determines. (11) Where the appeal relates to an order terminating the tenancy made on the ground of non-payment of rent, a stay of proceedings shall not be granted unless the application for stay is supported by a receipt or other written evidence tending to show that the rent was not in fact in arrear at the date of the hearing before the Tribunal
Section 85 of the Act provides for the manner in which the Tribunal’s jurisdiction is to be exercised: 85 Manner in which jurisdiction is to be exercised. (1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
In Nixon v Geal-Otter DC North Shore TT 216/94, 6 December 1995, the Court considering the approach to be taken by the Tribunal and the District Court to section 85 stated: “The long title to the Act includes as part of the philosophy of the Act, expeditious determination of disputes. The Tribunal and the District Court must adopt an approach which protects that philosophy. Section 85 elaborates on the philosophy, requiring jurisdiction to be applied in a manner that is most likely to ensure the fair and expeditious resolution of disputes, and injuncts that disputes should be determined in accordance with general principles of law and substantial merits and justice but not so as to be bound to give effect to strict legal forms or technicality. “There must be an approach that reflects a broad intuitive sense of propriety in the circumstances of each case and recognises the overall impression and sense of fairness and equity. The broadness of this approach imports a recognition of earthy commonsense to resolutions which could be marginalised if the Tribunal and Courts slavishly applied technically correct legal niceties to allow claims such as for example in this case $20 for lawn mowing. Such an approach would open a door for unacceptable cluttering of a resolution process intended to be expeditious, particularly where disputes are over matters of minutia.”
In Welsh v Housing New Zealand Ltd HC Wellington AP35/2000, 9 March 2001, the Court reviewed the role of the Tenancy Tribunal under the Act, with specific reference to s 85(2). “[29] ... It seems ... to be very clear that under s 85(2) the Tenancy Tribunal must determine each dispute before it in accordance with the general principles of law relating to the dispute as well as the substantial merits and justice of the case. The provision does not create a licence for the Tenancy Tribunal to impose its views on the substantial merits and justice of the case upon one or other disputant unless its determination is based on general principles of law relating to the dispute. There is nothing in the Act, which, as we have noted, relates to residential tenancies generally, which would possibly entitle a court to come to the view that a Tenancy Tribunal could make a determination independent of the general principles of law applicable to the dispute. If there is no claim against a landlord or a tenant according to general principles of law, there is no possible basis for an award against a landlord or tenant under the jurisdiction of the Tenancy Tribunal. If there is such a claim, then the Tenancy Tribunal must take into account the substantial merits and justice of the case. It is a conjunctive requirement, not a disjunctive one. The remainder of s 85(2) may enable the Tenancy Tribunal to waive or mitigate what might otherwise be the consequences of the general principles of law applicable to the dispute. However, there is nothing in s 85(2) of the Act which could enable the Tenancy Tribunal to grant relief to either a landlord or a tenant unless it is relief justified in accordance with general principles of law.” “[30] If a remedy is justified by the principles of law applicable to the matter, the Tenancy Tribunal will have to consider the merits and justice of the case and whether the strict application of the law gives rise to a fair result, but, if there is no remedy provided for by the law, it is not open to the Tenancy Tribunal to invent one.”
In Ziki Investments (Properties) Ltd v McDonald [2008] 3NZLR 417 (HC) endorsed Welsh v Housing New Zealand, where the Court stated at [71]: “...s 85 does not create a licence for the Tribunal to impose its views on the merits and justice of the case unless its determination is based on general principles of law..”.
In Smith v Accessible Properties New Zealand Limited [2019] NZCA 38 the Court of Appeal held that the exercise of the discretion in section 85 of the Act did not confer a new jurisdiction or powers on the Tribunal. Conclusion
An argument that the Tribunal has made an error applying the law is not a ground for a rehearing under section 105 of the Act.
As established in Welsh v Housing New Zealand Ltd, accepting such an error as a ground for a rehearing would be outside the Tribunal’s jurisdiction.
The application for rehearing is dismissed.
The orders suppressing the name of the tenant and the address of the property continue.

Tenancy Tribunal case 4881824 — Cleanliness

At a glance

Tenancy Tribunal case 4881824 — Cleanliness

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