What was Tenancy Tribunal case 4980029 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4980029?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4980029?

The dispute type was not classified.

Where can I read the official tribunal order for case 4980029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11159629-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4980029 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4980029?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4980029?

The dispute type was not classified.

Where can I read the official tribunal order for case 4980029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11159629-Tribunal_Order_Redacted.pdf.

180 Linwood Avenue, Linwood, Christchurch 8011 Tenancy Tribunal Case 4980029 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which I held by phone on 2 December 2024.
The landlord has applied for a rehearing of the order the Tribunal made on 21 October 2024. The law
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: “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 rehearings may be granted. Those examples include: • Where a Tenancy Adjudicator has improperly admitted or rejected evidence • Excessive intervention by the Tenancy 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.
As noted by Judge Christiansen in 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.
Usually, the party applying for the rehearing must show that something went wrong with the Tribunals 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?

For the following reasons the landlord has failed to establish the grounds for a rehearing.
The landlord said in evidence today that he did not believe that the Tribunal’s order was fair. That is not a ground for a rehearing.
In his written application he said he was required to provide access to his property to allow his neighbour to carry our construction work. Even if correct, that does not prevent the tenant from seeking compensation for a breach of her quiet enjoyment as she did here. The tenant’s RTA rights are preserved no matter the decisions the landlord was required to make.
The fact that the tenant did not oppose the application today is irrelevant. She seemed of the view that a rehearing would enable her to provide further evidence to support her case. But she has not applied for a rehearing so she cannot support a rehearing as a means of arguing her case over again.
The matters raised by the landlord are grounds for an appeal. But given the decisions of the District Court to which I have referred above, there is nothing in the landlord’s application that would establish grounds for a rehearing. Nothing went wrong procedurally. Both parties attended the hearing and presented their respective cases. The landlord simply does not accept the result.
For these reasons, the application for rehearing must be, and is, dismissed.
The stay of proceedings granted pending the hearing of the landlord’s application is now lifted. The Tribunal’s order dated 21 October 2024 can now be enforced.
The Tribunal’s order dated 21 October 20204 suppressed the tenant’s name. I have again made a name suppression order to ensure continuation of name suppression.

Reasons

Both parties attended the hearing which I held by phone on 2 December 2024.

The landlord has applied for a rehearing of the order the Tribunal made on 21 October 2024. The law

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: “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 rehearings may be granted. Those examples include: • Where a Tenancy Adjudicator has improperly admitted or rejected evidence • Excessive intervention by the Tenancy 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.

As noted by Judge Christiansen in 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.

Usually, the party applying for the rehearing must show that something went wrong with the Tribunals 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?

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

The landlord said in evidence today that he did not believe that the Tribunal’s order was fair. That is not a ground for a rehearing.

In his written application he said he was required to provide access to his property to allow his neighbour to carry our construction work. Even if correct, that does not prevent the tenant from seeking compensation for a breach of her quiet enjoyment as she did here. The tenant’s RTA rights are preserved no matter the decisions the landlord was required to make.

The fact that the tenant did not oppose the application today is irrelevant. She seemed of the view that a rehearing would enable her to provide further evidence to support her case. But she has not applied for a rehearing so she cannot support a rehearing as a means of arguing her case over again.

The matters raised by the landlord are grounds for an appeal. But given the decisions of the District Court to which I have referred above, there is nothing in the landlord’s application that would establish grounds for a rehearing. Nothing went wrong procedurally. Both parties attended the hearing and presented their respective cases. The landlord simply does not accept the result.

For these reasons, the application for rehearing must be, and is, dismissed.

The stay of proceedings granted pending the hearing of the landlord’s application is now lifted. The Tribunal’s order dated 21 October 2024 can now be enforced.

The Tribunal’s order dated 21 October 20204 suppressed the tenant’s name. I have again made a name suppression order to ensure continuation of name suppression.

Tenancy Tribunal case 4980029 — Tenancy dispute at 180 Linwood Avenue, Linwood, Christchurch 8011

At a glance

Claims & awards

Tenancy Tribunal case 4980029 — Tenancy dispute at 180 Linwood Avenue, Linwood, Christchurch 8011

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