What was Tenancy Tribunal case 4922273 about?

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

How much money was awarded in case 4922273?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4922273?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4922273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11371319-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4922273 about?

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

How much money was awarded in case 4922273?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4922273?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4922273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11371319-Tribunal_Order_Redacted.pdf.

39 Mountain Road, Western Heights, Rotorua 3015 Tenancy Tribunal Case 4922273 — Exemplary damages

Order

The application for rehearing is dismissed.
The stay ordered is lifted, meaning the Chief Executive may enforce the original order.
Name suppression for the tenants is ordered to continue.

Reasons

The Tribunal must consider an application for rehearing filed by the landlord. A telephone hearing was convened on 29 January 2025 to consider that rehearing request.

BACKGROUND

In terms of this rehearing request, the background can be summarised succinctly as follows: a. This dispute relates to an application to the Tribunal from the Chief Executive of the Ministry of Business, Innovation and Employment (Chief Executive), and was brought within its enforcement jurisdiction. In short, the claim related primarily to a range of defects with the tenancy which the Chief Executive considers that the landlord had not addressed, as well as various other breaches. b. The application was made against Aquastar Holdings Limited (Aquastar) and Stephen Bhana (the landlords agent). c. A hearing was scheduled before the Tribunal on 27 and 28 November 2024. d. On 26 November 2024, the day prior to the hearing, the landlord applied for an adjournment of the hearing, on the ground that Mr Bhana was unwell. This was declined, given the basis for the adjournment was not a new matter for Mr Bhana, but in any event Ms Bhana was a director of the company, and there was no evidence to support her inability to proceed, or to have appointed a representative for the company. I was also minded, that the issues raised by the Chief Executive were health and safety matters, where a delay would not be reasonable. e. On the day of the hearing (27 November 2024), Ms Bhana attended initially, but elected not to remain and participate in the hearing. She left after about 10 minutes or so. I had warned Ms Bhana that I would be proceeding with the hearing in her absence. f. The hearing concluded on 27 November 2024, and an order was issued the following day on 28 November 2024. The Tribunal made a range of orders against Aquastar, including: i. Ordering exemplary damages totalling $6,215.44. ii. Ordering specific work be completed by 28 January 2025. iii. Making a restraining order, restraining the landlord from committing further unlawful acts for three years. The landlord has appealed that decision to the District Court. g. The application against Mr Bhana was dismissed, it was accepted he was simply the agent (property manager) for the landlord Aquastar, and the correct respondent was only Aquastar. h. The landlord applied for a rehearing. I directed a hearing be convened to consider the rehearing request. The monetary order only was stayed pending the Tribunal’s decision on whether a rehearing would be granted. i. A telephone hearing was convened on 29 January 2025 to hear from the parties as to whether the rehearing should be granted. Mr Gray represented the Chief Executive, and Mr and Mr Bhana attended. I note a further application for adjournment was made by the Bhanas’ on the day of this hearing, which was also declined.

LANDLORDS POSITION

The Applicant submits that a rehearing should be granted for these reasons: a. A procedural error has occurred in this case, because the hearing proceeded with Ms Bhana present (initially), but she had COVID, and left shortly following. b. The agent for the landlord was Mr Stephen Bhana, and he was unwell and undergoing medical treatment around the time of the hearing, so could not attend. The hearing should not have proceeded with the landlord’s agent not present. c. As a result of the landlord not attending, the landlord has not been heard, or witnesses challenged. d. There has been a breach of the principles of natural justice. e. An appeal has been lodged, which would be nugatory if a stay is not maintained. f. If the stay were not ordered, then it would be unlikely that the ordered amount ($6,215.44) could be recovered from the tenants. g. There would be no prejudice arising for the applicant if a rehearing was granted, as some work has been carried out. h. The balance of convenience favours a rehearing being granted. i. There is new evidence from the council to confirm that a building permit may be needed for some work to be completed, and there is insufficient time for that to occur. j. The Chief Executive has gone beyond its statutory jurisdiction, and its officers were not adequately qualified.
At the hearing I asked the landlord whether any of the work ordered had been completed. We ran through the work ordered in order 3 of the original order, and the landlord confirmed that none of that work has been completed, but states some material are on site, or other delays have arisen. But what remains is that none of the ordered work has been finished.

CHIEF EXECUTIVES POSITION

The Chief Executive opposes the rehearing request for these reasons: a. The landlord has had a fair opportunity to engage in the proceedings, despite adequate notice of the hearing. The landlord only sought an adjournment immediately prior to the hearing. The landlord (and agent) knew about the health issues well prior to the hearing. b. Given all of the applications against Mr Bhana have been dismissed, there would be no benefit for a rehearing for Mr Bhana. c. It was not raised at the time of the original hearing that Ms Bhana had COVID (it was only raised on the day of the rehearing consideration hearing). d. It would be an abuse of process to allow a rehearing as an alternative to an appeal, in a matter which should fall within the appeal.

RELEVANT LAW

Section 105 of the Residential Tenancies Act 1986 relates to rehearings. 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.
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

I have set out the relevant law that applies to rehearings above. In short, re- hearings are a safety measure should something have gone wrong with the hearing, normally on a procedural basis, in which case a rehearing can be approved so that the matter then returns to the Tribunal for a further hearing.
I have considered the submissions from the Applicant, and find that no procedural issues have been identified, and I cannot see any potential for a substantial wrong or miscarriage of justice to justify a rehearing. I will address the arguments made for Aquastar as follows: A procedural error has occurred in this case, because the hearing proceeded with Ms Bhana present (initially), but she had COVID, and left shortly following.
It is the case that Mr Bhana arrived at the hearing initially, but she left shortly after. From memory, she was there for about 10 minutes. I have explained in the original order why I determined that the hearing should proceed, and having considered the matters further in relation to this rehearing request, I maintain my original reasons. I consider that is it very likely that Ms Bhana, who is a director of the landlord company, had a sound knowledge of what was happening in relation to the tenancy and the original proceeding.
I note that no evidence has been presented supporting that Ms Bhana had COVID on the day of the hearing on 28 November 2024. A medical certificate for Ms Bhana has been filed, but that is dated 5 December 2024, and relates to a period of 11 days following 5 December, which was a week following the hearing. The agent for the landlord was Mr Stephen Bhana, and he was unwell and undergoing medical treatment around the time of the hearing, so could not attend. The hearing should not have proceeded with the landlord’s agent not present.
I have addressed this argument above. As a result of the landlord not attending, the landlord has not been heard, or witnesses challenged.
It is undoubtedly correct that because the landlord did not stay and engage at the hearing, the hearing proceeded without the landlord’s input. That was a natural consequence of the decision of Ms Bhana in not staying or participating in the hearing. But I am certain that the landlord had a fair and reasonable opportunity to attend and be heard. There has been a breach of the principles of natural justice.
Natural justice demands the landlord have a fair opportunity to attend and engage in the hearing. I consider the landlord had that opportunity. An appeal has been lodged, which would be nugatory if a stay is not maintained.
As confirmed in this order, the stay of the monetary order is now lifted. If the landlord is seeking any further stay, that would need to be an application made to the District Court, in the context of the appeal which is yet to be heard. If the stay were not ordered, then it would be unlikely that the ordered amount ($6,215.44) could be recovered from the tenants.
The Tribunal ordered that the landlord pay the stated amount to the Chief Executive, not the tenants. I am sure that if the Tribunal’s order was overturned by the District Court, the Chief Executive would repay any required amounts efficiently. It would be unthinkable that the Chief Executive would ignore the District Court’s order. There would be no prejudice arising for the applicant if a rehearing was granted, as some work has been carried out
The fact of any prejudice arising is not a statutory factor with rehearing requests in the Tribunal. But even if that were not the case, not all work has been completed, and there are other orders that would be delayed if the rehearing was granted. That is not to mention the additional cost involved for the Chief Executive or the public in hearing a rehearing, which was otherwise not indicated in law.
Furthermore, at the hearing today, I asked the landlord what work orders had been completed, and in fact none have. Therefore if I were to order a rehearing, that would only delay that further work being completed which presents an intolerable health and safety issue at the tenancy. The balance of convenience favours a rehearing being granted.
Balance of convenience issues do not in my view come into play in this case, in deciding whether or not to grant the rehearing. The evidence strongly favours a decline of the rehearing application. There is new evidence from the council to confirm that a building permit may be needed for some work to be completed, and there is insufficient time for that to occur.
It is difficult to know what to make of the email from the Rotorua Lakes Council, which is dated the same day as he hearing (29 January 2025). The email states: We are unable to make a proper assessment of what is required for the proposed works and require some further information to be able to advise you further. As I mentioned on our phone call – it is possible that the required repairs will trigger a building consent but may not necessarily require an LBP to carry out the work.
The email is vague, and does not record what information the council officer had been given, or what work he was referring to. Certainly the officer’s advice is conditional in the sense that it states that further information was needed to provide proper advice.
Nevertheless, the landlord has had two months in order to get any necessary work completed, and if a consent application needed to be made it could have been made well before now.
I record for completeness, that in the event there was solid evidence that consent needed to be obtained for any work (which there is not), I would have been open to amending the timeframes in the order for that specific work, but in order to take that approach I would have needed to see the landlord acting expeditiously, which I cannot see here. The Chief Executive has gone beyond its statutory jurisdiction, nor were the Officers involved in this case suitably qualified.
That argument would be one that could be made at appeal, but I am not persuaded that there is any evidence of the Chief Executive going beyond its jurisdiction. If any opinion evidence was accepted by the Tribunal, then again that could be challenged at appeal.

CONCLUSION

I find that a substantial wrong or miscarriage of justice has not been established, even the possibility of that situation. Therefore the application for rehearing is dismissed.
The stay is lifted, meaning that the landlord must now make the payment to the Chief Executive as ordered, and that order may be enforced if necessary.
Name suppression for the tenants continues.

Tenancy Tribunal case 4922273 — Exemplary damages at 39 Mountain Road, Western Heights, Rotorua 3015

At a glance

Claims & awards

Tenancy Tribunal case 4922273 — Exemplary damages at 39 Mountain Road, Western Heights, Rotorua 3015

At a glance

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS POSITION

CHIEF EXECUTIVES POSITION

RELEVANT LAW

ANALYSIS

CONCLUSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

BACKGROUND

LANDLORDS POSITION

CHIEF EXECUTIVES POSITION

RELEVANT LAW

ANALYSIS

CONCLUSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions