What was Tenancy Tribunal case 4945973 about?

The tribunal order states: The Tribunal directs that the tenant’s names and details be suppressed.

How much money was awarded in case 4945973?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4945973?

The dispute type was not classified.

Where can I read the official tribunal order for case 4945973?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11000334-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4945973 about?

The tribunal order states: The Tribunal directs that the tenant’s names and details be suppressed.

How much money was awarded in case 4945973?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4945973?

The dispute type was not classified.

Where can I read the official tribunal order for case 4945973?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11000334-Tribunal_Order_Redacted.pdf.

Unit/Flat 2, 277 Scott Street, Witherlea, Blenheim 7201 Tenancy Tribunal Case 4945973 — Tenancy dispute

Order

The Tribunal directs that the tenant’s names and details be suppressed.
The application for rehearing is dismissed.

Reasons

Both parties attended the hearing by telephone.
On 17 September 2024 the Tribunal sealed a mediated order between the parties.
On 18 September 2024 the landlord applied for a rehearing on the grounds that “The mediator said I could not issue a 90 days to end the fixed term as the property will be having extensive renovation... The mediator was wrong and I was forced into making an offer as the mediator was insistent that I was not allowed to issue the notice.”
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.
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 standard set for a rehearing is a high one. Being unhappy with the decision and finding it unfair do not establish grounds for a rehearing.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons landlord has failed to establish the grounds for a rehearing.
Adjudicator Woodhouse in his order of 19 September 2024 granting the re- hearing hearing cited the District Court decision of Wellington City Council v McMillan [2003] DCR 50 which is binding on this Tribunal. In that decision Judge Tuohy held that the language of the statute 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. [My emphasis] [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.”
Adjudicator Woodhouse also noted the words of Judge Christiansen in the binding District Court decision 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.”
The Westlaw commentary on section 105 RTA cites the Tribunal decision in A1 Property Managers Ltd v Burgess [2016] NZTT Christchurch 4023082 at [9] that only in exceptional circumstances would an applicant be able show a mediated agreement to which he was a party was either substantially wrong or a miscarriage of justice: “The mediated agreement is, by virtue of sections 86 and 87 of the Act, a proceeding and therefore able to be the subject of an application for a rehearing. However, clearly such instances will be very rare because of course the whole basis of a mediated order is that it reflects the agreement between the parties whereas an order made by the Tribunal at the conclusion of a hearing frequently does not. In my view, given that the mediation process is one of the cornerstones of the legislation, the party applying for a rehearing would have to show exceptional circumstances for an agreement which the applicant was a party to be either substantially wrong or a miscarriage of justice having arisen therefrom.”
The landlord’s ground for her re-hearing application is that the mediator stated the law incorrectly and that this led her to settle with the tenants on an erroneous ground.
It is not the mediator’s role to give legal advice. It is to facilitate the settlement of disputes. The property manager who represented the landlord at the mediation is an experienced professional. It is to be expected that she knows the law regarding residential tenancies or would obtain professional advice. While she blames the mediator for the error in law, the error was hers. If she was in doubt or disagreed, she could have ended the mediation and had the tenant’s application determined by an adjudicator in the Tribunal.
The landlord is unhappy with the terms of the order because she accepted the mediator’s interpretation of the RTA. This does not constitute grounds for a re- hearing.

Reasons

Both parties attended the hearing by telephone.

On 17 September 2024 the Tribunal sealed a mediated order between the parties.

On 18 September 2024 the landlord applied for a rehearing on the grounds that “The mediator said I could not issue a 90 days to end the fixed term as the property will be having extensive renovation... The mediator was wrong and I was forced into making an offer as the mediator was insistent that I was not allowed to issue the notice.”

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.

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 standard set for a rehearing is a high one. Being unhappy with the decision and finding it unfair do not establish grounds for a rehearing.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons landlord has failed to establish the grounds for a rehearing.

Adjudicator Woodhouse in his order of 19 September 2024 granting the re- hearing hearing cited the District Court decision of Wellington City Council v McMillan [2003] DCR 50 which is binding on this Tribunal. In that decision Judge Tuohy held that the language of the statute 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. [My emphasis] [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.”

Adjudicator Woodhouse also noted the words of Judge Christiansen in the binding District Court decision 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.”

The Westlaw commentary on section 105 RTA cites the Tribunal decision in A1 Property Managers Ltd v Burgess [2016] NZTT Christchurch 4023082 at [9] that only in exceptional circumstances would an applicant be able show a mediated agreement to which he was a party was either substantially wrong or a miscarriage of justice: “The mediated agreement is, by virtue of sections 86 and 87 of the Act, a proceeding and therefore able to be the subject of an application for a rehearing. However, clearly such instances will be very rare because of course the whole basis of a mediated order is that it reflects the agreement between the parties whereas an order made by the Tribunal at the conclusion of a hearing frequently does not. In my view, given that the mediation process is one of the cornerstones of the legislation, the party applying for a rehearing would have to show exceptional circumstances for an agreement which the applicant was a party to be either substantially wrong or a miscarriage of justice having arisen therefrom.”

The landlord’s ground for her re-hearing application is that the mediator stated the law incorrectly and that this led her to settle with the tenants on an erroneous ground.

It is not the mediator’s role to give legal advice. It is to facilitate the settlement of disputes. The property manager who represented the landlord at the mediation is an experienced professional. It is to be expected that she knows the law regarding residential tenancies or would obtain professional advice. While she blames the mediator for the error in law, the error was hers. If she was in doubt or disagreed, she could have ended the mediation and had the tenant’s application determined by an adjudicator in the Tribunal.

The landlord is unhappy with the terms of the order because she accepted the mediator’s interpretation of the RTA. This does not constitute grounds for a re- hearing.

Tenancy Tribunal case 4945973 — Tenancy dispute at Unit/Flat 2, 277 Scott Street, Witherlea, Blenheim 7201

At a glance

Claims & awards

Tenancy Tribunal case 4945973 — Tenancy dispute at Unit/Flat 2, 277 Scott Street, Witherlea, Blenheim 7201

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions