What was Tenancy Tribunal case 4927373 about?

The tribunal order states: The landlord’s name and identifying details including the tenancy address must

How much money was awarded in case 4927373?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4927373?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4927373?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11216049-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4927373 about?

The tribunal order states: The landlord’s name and identifying details including the tenancy address must

How much money was awarded in case 4927373?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4927373?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4927373?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11216049-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4927373 — State of repair

Order

The landlord’s name and identifying details including the tenancy address must not be published.
Mr Er’s application for rehearing is dismissed.

Reasons

This is a reserved decision.
Both parties attended the hearing. 1
On 30 September 2024, the Tribunal made an order that included orders dismissing Mr Er’s claims, that Mr Er pay the landlord $566.49 and the Bond Centre release the $220.00 bond to the landlord. The Tribunal dismissed Mr Er’s claims. 1 I heard the case at Manukau District Court on 11 December 2024.
Mr Er has applied for a rehearing of the Tribunal’s decision in respect to: a. The Tribunal declining to order interest on previous Tribunal monetary orders. b. The Tribunal finding that Mr Er bore the onus of proving the oven was not working as he claimed. c. How the Tribunal dealt with Mr Er’s claim under s 78A of the Residential Tenancies Act 1986 (RTA). d. How the Tribunal dealt with the landlord’s claim to Mr Er defecating in the outdoor area. Background
For context, I restate the background to this matter.
The tenancy began in 2018 and the District Court granted the landlord possession in August 2024.
The landlord does not speak much English. Probably in 2018 he spoke even less. The landlord’s lack of English was probably a major barrier to his understanding his rights and obligations as a landlord under New Zealand law.
Enter Mr Er. Mr Er has good English and a better understanding of the residential tenancy rules than the landlord. He probably drafted the terms of a six-paragraph tenancy agreement. The rent was set at $110.00. The tenancy was subject to the Residential Tenancies Act 1986 (RTA).
The premises include a bedroom in a rear building, a shared upstairs bathroom in the main house, and access to a kitchen
There have been at least six prior claims in the Tribunal, including for the landlord failing to lodge the bond, the premises being unlawful premises, 2 and challenges to several of the landlord’s notices endeavouring to end the tenancy. 3
Despite the landlord’s attempts to end the tenancy, and the Tribunal terminating the tenancy on 16 October 2020, and its finding that the premises were unlawful premises on 7 March 2021, Mr Er has steadfastly declined to leave the premises until he eventually moved out in August 2024. 2 Er v [Landlord] [2021] NZTT Manukau 4195131, 4205483, 4222675. 3 See for instance Er v [Landlord] [2020] NZTT Manukau 4195131, 4205483, 4220397, 4222675. See paras 2 - 20 for a summary of the “the lengthy history to these applications”.
Mr Er appealed the Tribunal’s 2020 decision terminating the tenancy. The decision dismissing his appeal was delivered on 19 June 2024 and required Mr Er to vacate the premises by 5:00pm on 2 August 2024. Mr Er still did not move out as ordered, however.
Mr Er did not appeal the Tribunal’s decision of 7 March 2021 in which the Tribunal found the premises was an unlawful premises and ordered the landlord to pay Mr Er a partial refund of rent but refused to order any refund of the rent after the date of its earlier decision of 16 September 2020. In that regard, the Tribunal found: 4
Mr Er told me that he should receive a full refund of rent because his choice to continue to live at the property (and to fight hard to do so), was made on the assumption that the premises were lawful. I have taken this into account and awarded him a full refund of rent for the first part of his tenancy, and a half refund for the period during which he chose to stay but the compliance issues had not been made clear. These issues were however discussed by me during the 6 August 2020 hearing and I made clear directions and orders about them on 16 September 2020. I consider it reasonable that Mr Er pay full rent from after that date as he has elected to remain with full awareness of the issues. Legal principles
Section 105(1) of the RTA 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..
The applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard, and that: 4 The original decision [Landlord] v Meng Chiau Er [2024] NZTT 4927373, 4987108 at para 35. [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.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made. Interest on judgments
The Tribunal declined Mr Er’s application for the Tribunal to order interest on decisions in Mr Er’s favour 2020 and 2021.
The Tribunal does not enforce its own decisions.
The Collections section of the District Court can assist Mr Er with how he can enforce the Tribunal’s decisions if required.

Did Mr Er bear the onus of proving the premises oven was malfunctioning?

Mr Er brought a claim that the landlord did not maintain the oven in a reasonable state of repair.
The Tribunal found that Mr Er had not proved that the oven was in a less than reasonable state of repair.
Mr Er disagrees that he bore the onus of proving that fact.
Mr Er did bear the onus, however. Did the Tribunal “fail to apply s 78A of the RTA”?
Mr Er claims that the Tribunal failed to apply s 78A of the RTA.
The Tribunal found it was estopped from considering s 78A because the issue was res judicata, having already been decided in an earlier Tribunal decision.
Further, the Tribunal went on to say in respect to s 78A:
Even if the Tribunal were not estopped for [sic] further considering the matter, I would not have considered it fair to make any deduction of rent under s 78A(4) of the RTA as sought. Mr Er paid modest rent. He did not have to pay for power or other outgoings. The living conditions were not bad, and the landlord lived on the property with his family himself. Mr Er was on a good wicket and the situation was clearly to his liking because he persistently declined to move out. 5
The Tribunal dealt with s 78A. I am not satisfied that there was any substantial wrong or miscarriage of justice in this regard. Mr Er repeatedly defecating in the outdoor area
The Tribunal found it more probable than not that the landlord had had to clean up Mr Er’s excrement on more than one occasion.
Mr Er accepts he did defecate in the garden on occasions when the toilet was occupied, and he could not wait but complains the landlord did not produce 10 sets of photographs to prove his claim that he had to clean up after Mr Er on about 10 occasions. However, the Tribunal did not find the landlord had to clean up after Mr Er on 10 occasions, but only on “more than one occasion”.
Mr Er claims that the Tribunal did not give him adequate opportunity to respond to the landlord’s claims in this regard. I am not satisfied that is the case. The Tribunal was well aware of Mr Er’s denial of the landlord’s claim but preferred the landlord’s evidence. Nor did Mr Er provide anything new at the hearing that the Tribunal was not already aware of from the original hearing.
Mr Er complained that the $250.00 nominal damages “should be dismissed as the landlord did not suffer from any financial loss”. However, nominal damages are not compensatory: 6 Nominal damages are non-compensatory. As Lord Halsbury LC stated in The Mediana: “‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it 5 See also Chen v Kumar [2022] NZDC 7783 for the relevance of these matters. 6 Peter Blanchard, Civil Remedies in New Zealand (2nd ed, 2011): Westlaw electronic resources at
6.10. gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed.” If the plaintiff fails to prove an actual loss, damages will be limited to a nominal sum. Nominal damages are token sums of money awarded to acknowledge the existence of the breach. Conclusion
For these reasons, Mr Er has failed to establish the grounds for a rehearing.
His application for rehearing is dismissed.

Tenancy Tribunal case 4927373 — State of repair

At a glance

Tenancy Tribunal case 4927373 — State of repair

At a glance

Claims & awards

Order

Reasons

Did Mr Er bear the onus of proving the premises oven was malfunctioning?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did Mr Er bear the onus of proving the premises oven was malfunctioning?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions