What was the outcome of Tenancy Tribunal case 4944654?

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

How much money was awarded in case 4944654?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4944654?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4944654?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10959430-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4944654?

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

How much money was awarded in case 4944654?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4944654?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4944654?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10959430-Tribunal_Order.pdf.

43 Burwood Road, Burwood, Christchurch 8083 Tenancy Tribunal Case 4944654 — Exemplary damages

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which I held by phone. Mr Siebert represented the landlord.
On 26 September 2024 the Tribunal made an order dismissing the tenants’ applications for compensation and exemplary damages.
On 2 October 2024 the tenants applied for a rehearing on the grounds that I had previously dealt with them in the District Court; that I had previously heard an application involving them in the Tribunal; that they had new evidence; and that I had not properly considered or addressed evidence produced.
Additionally, Mrs Archbold said today that her grandmother’s funeral was held 3 days before the hearing and ‘her head was all over the place’.
The landlord opposes the application for rehearing. Law on rehearings
Section 105(1) of the Residential Tenancies Act 1986 (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.”
To find that grounds for a rehearing exist, the applicant does not need to prove that an actual miscarriage of justice or substantial wrong occurred, but merely that prima facie such a situation exists, (Nixon v Brown (1989) DCR 404,406.
In 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. He said: They must obviously apply....to cases of procedural error e.g. A hearing which takes place in the absence of a party who has not been given notice of it; or the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may 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 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 the parties to in effect appeal by way of an application for a 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 authors of Thomson Reuters (Civil Procedure District Courts & Tribunals- loose leaf TE 4.01) provide examples of when a rehearing may be granted. Those examples include: • Where the Adjudicator has improperly admitted or rejected evidence • Excessive intervention by the Adjudicator • Misconduct by one of the parties • Misconduct by a witness • Where a party has not had the opportunity to cross examine a material witness • The availability of new evidence • Where a party has not received notice of the hearing.
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, that they were not able to properly present their case, or that there is new evidence that was not reasonably available at the first hearing. They will also have to establish that the information that they wish to present could affect 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, that is not sufficient to establish a miscarriage of justice. A rehearing will not be granted just because a party is unhappy with the decision, to give a party a second opportunity to present their case or as an alternative to an appeal.

Has a substantial wrong or miscarriage of justice occurred?

I note that the application for rehearing was filed late. However, the Tribunal has a discretion to accept a late application and that is what I have done. In other words, I do not decline the application for rehearing just because it was late by a few days.
I also note that the tenants authorised the Tribunal to decide the rehearing application on the papers. I decided to convene a hearing because I was puzzled by the mention of me dealing with one of them in the District Court. When I questioned that today, it became clear they had confused me with a District Court judge in the criminal jurisdiction.
The fact that I have heard a previous application made by them (and against them) does not disqualify me from hearing other cases in which they are parties. The Tribunal frequently hears cases by and between the same parties.
For the following reasons the tenants have failed to establish grounds for a rehearing.
First, nothing went wrong with the Tribunal’s procedure. The tenants attended the hearing, gave evidence, and had the opportunity to make submissions and to question the evidence produced by the other party.
Second, that Mrs Archbold lost her grandmother was not a matter mentioned until this morning. She showed no apparent distress at the hearing and fully engaged with the process. While sympathetic for her loss, the Tribunal does not consider that both tenants were affected to an extent where they were unable to properly present their case. In fact, they did so competently and without any apparent difficulty.
Third, I considered all the evidence produced at the hearing, even if I did not record it all. I said at paragraph 8 of my decision: I have considered all the evidence, both oral and documentary, even if I do not specifically refer to it. And I confirm that I have decided the application on the evidence before the Tribunal, not taking into account Mrs Archbold’s previous publicly reported history of dishonesty offences.
Fourth, the ‘new’ evidence the tenants referred to comprises emails between the parties, some about maintenance. Mrs Archbold said she could not produce them at the hearing because she could not access her phone before the hearing. I do not consider that the ‘new’ evidence would materially have affected the outcome. In other words, even with that evidence my decision would not have been any different.
Fifth, Mrs Archbold disputes that the landlord looked after her son while she was in prison, or that the landlord provided Mr Archbold with the use of a van as I recorded. That the evidence is now disputed does not justify a rehearing; it is grounds for an appeal.
Sixth, this is a case where the tenants do not agree with my findings. That is not a reason to grant a rehearing. The correct way to address a decision that a party does not accept or agree with is by the appeal process. Result
For the reasons given, I dismiss the tenants’ application for rehearing.

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which I held by phone. Mr Siebert represented the landlord.
On 26 September 2024 the Tribunal made an order dismissing the tenants’ applications for compensation and exemplary damages.
On 2 October 2024 the tenants applied for a rehearing on the grounds that I had previously dealt with them in the District Court; that I had previously heard an application involving them in the Tribunal; that they had new evidence; and that I had not properly considered or addressed evidence produced.
Additionally, Mrs Archbold said today that her grandmother’s funeral was held 3 days before the hearing and ‘her head was all over the place’.
The landlord opposes the application for rehearing. Law on rehearings
Section 105(1) of the Residential Tenancies Act 1986 (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.”
To find that grounds for a rehearing exist, the applicant does not need to prove that an actual miscarriage of justice or substantial wrong occurred, but merely that prima facie such a situation exists, (Nixon v Brown (1989) DCR 404,406.
In 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. He said: They must obviously apply....to cases of procedural error e.g. A hearing which takes place in the absence of a party who has not been given notice of it; or the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may 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 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 the parties to in effect appeal by way of an application for a 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 authors of Thomson Reuters (Civil Procedure District Courts & Tribunals- loose leaf TE 4.01) provide examples of when a rehearing may be granted. Those examples include: • Where the Adjudicator has improperly admitted or rejected evidence • Excessive intervention by the Adjudicator • Misconduct by one of the parties • Misconduct by a witness • Where a party has not had the opportunity to cross examine a material witness • The availability of new evidence • Where a party has not received notice of the hearing.
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, that they were not able to properly present their case, or that there is new evidence that was not reasonably available at the first hearing. They will also have to establish that the information that they wish to present could affect 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, that is not sufficient to establish a miscarriage of justice. A rehearing will not be granted just because a party is unhappy with the decision, to give a party a second opportunity to present their case or as an alternative to an appeal.

Has a substantial wrong or miscarriage of justice occurred?

I note that the application for rehearing was filed late. However, the Tribunal has a discretion to accept a late application and that is what I have done. In other words, I do not decline the application for rehearing just because it was late by a few days.
I also note that the tenants authorised the Tribunal to decide the rehearing application on the papers. I decided to convene a hearing because I was puzzled by the mention of me dealing with one of them in the District Court. When I questioned that today, it became clear they had confused me with a District Court judge in the criminal jurisdiction.
The fact that I have heard a previous application made by them (and against them) does not disqualify me from hearing other cases in which they are parties. The Tribunal frequently hears cases by and between the same parties.
For the following reasons the tenants have failed to establish grounds for a rehearing.
First, nothing went wrong with the Tribunal’s procedure. The tenants attended the hearing, gave evidence, and had the opportunity to make submissions and to question the evidence produced by the other party.
Second, that Mrs Archbold lost her grandmother was not a matter mentioned until this morning. She showed no apparent distress at the hearing and fully engaged with the process. While sympathetic for her loss, the Tribunal does not consider that both tenants were affected to an extent where they were unable to properly present their case. In fact, they did so competently and without any apparent difficulty.
Third, I considered all the evidence produced at the hearing, even if I did not record it all. I said at paragraph 8 of my decision: I have considered all the evidence, both oral and documentary, even if I do not specifically refer to it. And I confirm that I have decided the application on the evidence before the Tribunal, not taking into account Mrs Archbold’s previous publicly reported history of dishonesty offences.
Fourth, the ‘new’ evidence the tenants referred to comprises emails between the parties, some about maintenance. Mrs Archbold said she could not produce them at the hearing because she could not access her phone before the hearing. I do not consider that the ‘new’ evidence would materially have affected the outcome. In other words, even with that evidence my decision would not have been any different.
Fifth, Mrs Archbold disputes that the landlord looked after her son while she was in prison, or that the landlord provided Mr Archbold with the use of a van as I recorded. That the evidence is now disputed does not justify a rehearing; it is grounds for an appeal.
Sixth, this is a case where the tenants do not agree with my findings. That is not a reason to grant a rehearing. The correct way to address a decision that a party does not accept or agree with is by the appeal process. Result
For the reasons given, I dismiss the tenants’ application for rehearing.

Tenancy Tribunal case 4944654 — Exemplary damages at 43 Burwood Road, Burwood, Christchurch 8083

At a glance

Tenancy Tribunal case 4944654 — Exemplary damages at 43 Burwood Road, Burwood, Christchurch 8083

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions