What was Tenancy Tribunal case 4980788 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 4980788?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4980788?

The primary dispute was Smoke alarms.

Where can I read the official tribunal order for case 4980788?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11435956-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4980788 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 4980788?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4980788?

The primary dispute was Smoke alarms.

Where can I read the official tribunal order for case 4980788?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11435956-Tribunal_Order_Redacted.pdf.

17 Moana Avenue, Surfdale, Waiheke Island 1081 Tenancy Tribunal Case 4980788 — Smoke alarms

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.
The stay of proceedings granted in the Tribunal Order dated 16 December 2024 is lifted.

Reasons

Both parties attended the hearing.
On 10 December 2024, the Tribunal made an order finding jurisdiction and requiring the landlord to pay the tenant $547.00. This sum represents a refund of the bond of $520.00 paid by the tenant and the filing fee of $27.00.
On 13 December 2024, the landlord applied for a rehearing.
On 13 February 2025, a hearing to consider whether a rehearing should be granted was held. The law
Section 105(1) 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”.
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.

Has a substantial wrong or miscarriage of justice occurred?

At the substantive hearing on 27 November 2024, the Tribunal heard evidence from both parties about the nature of the living arrangement between the landlord and tenant. The Tribunal also heard evidence about the terms of the agreement between the parties, specifically whether they contracted for a periodic or fixed-term, and the relevant notice period required for termination.
In my order dated 10 December 2024, I found that the living arrangement between the parties constituted a residential tenancy and that the exception in section 5(1)(n) of the Residential Tenancies Act 1986 (RTA) did not apply.
The landlord filed extensive written submissions as to why a rehearing should be granted and elaborated on those submissions at the hearing on 13 February 2025.
The landlord submits a rehearing should be granted for the following reasons: a. I applied the case of Musson v Dobrisek & Ors DC Lower Hutt CIV-2006- 032-36, 5 May 2006 incorrectly to the present case. This resulted in an incorrect finding that the exception in section 5(1)(n) RTA did not apply to the living arrangement between the parties. b. I failed to consider the Tenancy Tribunal cases of Yun v Meijering & Garrett [2018] NZTT Auckland 4142522 and Tollemarch v Yun [2020] NZTT Auckland 4277753, 4280069 when considering whether section 5(1)(n) RTA applied to the present case. The landlord submits these cases are similar to the present case and if I had considered them, I would have found that the exception in section 5(1)(n) RTA applied. c. I failed to give sufficient weight to the fact that the parties signed an agreement titled “Flat House Sharing Agreement”, which states that the RTA does not apply and the appropriate forum for resolution of disputes between the parties is the Disputes Tribunal. d. I failed to consider whether the tenant was in breach of the Flat House Sharing Agreement by lodging his dispute in the Tenancy Tribunal instead of the Disputes Tribunal. e. I was wrong in determining at paragraph [16] of my decision that section 10 RTA states that, where a party to proceedings contends that the RTA does not apply, they must establish the facts supporting their contention. In other words, the landlord has the burden of proving the RTA does not apply to the living arrangement involving the tenant. The landlord submits that the onus is on the tenant to prove that the RTA applies, not the other way around. f. I failed to consider text messages between the landlord and tenant supporting the landlord’s claim that the agreement between the parties was for a fixed-term tenancy, not periodic. This failure contributed to my conclusion that the agreement between the parties was most likely for a periodic tenancy, not a fixed term tenancy. g. The landlord believed that the purpose of the hearing was solely to establish whether the Tenancy Tribunal had jurisdiction and they were not prepared to answer the substantive claims of the tenant. The landlord states they were overseas in the lead up to the hearing, which made communicating with Tenancy Services and the Registry difficult. The landlord claims they were advised that the hearing would solely focus on whether the Tenancy Tribunal had jurisdiction and a separate hearing would be allocated to hear the substantive claims of the tenant.
As an aside, the landlord also submits that my decision reflects the fact that Tenancy Services do not like that they do not have control over accommodation providers, namely people who provide accommodation in their own home.
I do not consider that a substantial wrong or miscarriage of justice may have occurred. The majority of the landlord’s submissions reflect a disagreement with my decision. As that District Court held in Loh v Puri [2019] NZDC 1993: ...Rehearings are about challenges to the processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
If the landlord does not agree with the Tribunal’s decision, the appropriate course is to file an appeal with the District Court.
I have considered the landlord’s submission that they believed the purpose of the hearing was solely to determine whether the Tribunal had jurisdiction and that a subsequent hearing would be scheduled to consider the tenant’s claims if jurisdiction was established.
I have considered the emails between the landlord and Registry while the landlord was overseas. Most of these emails relate to requests by the landlord to adjourn the original hearing, which was scheduled for 24 October 2024, because the landlord was overseas and did not have reliable access to the internet. The landlord appears to have had difficulty receiving a reply to their request for an adjournment, which understandably caused them frustration.
The landlord submitted a copy of an email from Tenancy Services dated 9 September 2024 stating: Good morning Briar The application is scheduled to be heard in part to establish the jurisdiction of the Tenancy Tribunal in this specific instance. ... [emphasis added]
The landlord claims they have emails from Tenancy Services and the Registry stating that the hearing would solely focus on whether the Tribunal has jurisdiction and that a separate hearing to consider the tenant’s claims would be scheduled if jurisdiction was established. The landlord did not submit copies of these emails.
The Notice of Hearing listed the following claims raised by the Tenant to be considered at the hearing: Vacated tenancy Jurisdiction – s 4, 77, 78 Refund of bond – s 22B Bond not lodged – s 19 Application fee refund – s 102(4) Smoke alarms regulations – s 40(1)(ca), 45(1)(ba)
I did not consider the claims that the bond was not lodged or the smoke alarms regulations, as the tenant did not make any submissions on these issues at the hearing.
At the beginning of the hearing, I advised the parties that I would hear from them first on the issue of jurisdiction and then on the substantive claims raised by the tenant. No objection was made by either party.
I consider it is clear from the Notice of Hearing and email to the landlord sent on 9 September 2024 that the issue of jurisdiction would only comprise part of the hearing and the balance would involve consideration of the claims raised by the tenant.
The landlord did not refer to any new evidence they would have submitted if a second, subsequent hearing was scheduled to consider the substantive claims raised by the tenant.
In all the circumstances, I am not convinced that a substantial wrong or miscarriage of justice may have occurred.
The landlord’s application for a rehearing is declined.
The stay of proceedings issued in the Order dated 16 December 2024 is lifted.

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.
The stay of proceedings granted in the Tribunal Order dated 16 December 2024 is lifted.

Reasons

Both parties attended the hearing.
On 10 December 2024, the Tribunal made an order finding jurisdiction and requiring the landlord to pay the tenant $547.00. This sum represents a refund of the bond of $520.00 paid by the tenant and the filing fee of $27.00.
On 13 December 2024, the landlord applied for a rehearing.
On 13 February 2025, a hearing to consider whether a rehearing should be granted was held. The law
Section 105(1) 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”.
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.

Has a substantial wrong or miscarriage of justice occurred?

At the substantive hearing on 27 November 2024, the Tribunal heard evidence from both parties about the nature of the living arrangement between the landlord and tenant. The Tribunal also heard evidence about the terms of the agreement between the parties, specifically whether they contracted for a periodic or fixed-term, and the relevant notice period required for termination.
In my order dated 10 December 2024, I found that the living arrangement between the parties constituted a residential tenancy and that the exception in section 5(1)(n) of the Residential Tenancies Act 1986 (RTA) did not apply.
The landlord filed extensive written submissions as to why a rehearing should be granted and elaborated on those submissions at the hearing on 13 February 2025.
The landlord submits a rehearing should be granted for the following reasons: a. I applied the case of Musson v Dobrisek & Ors DC Lower Hutt CIV-2006- 032-36, 5 May 2006 incorrectly to the present case. This resulted in an incorrect finding that the exception in section 5(1)(n) RTA did not apply to the living arrangement between the parties. b. I failed to consider the Tenancy Tribunal cases of Yun v Meijering & Garrett [2018] NZTT Auckland 4142522 and Tollemarch v Yun [2020] NZTT Auckland 4277753, 4280069 when considering whether section 5(1)(n) RTA applied to the present case. The landlord submits these cases are similar to the present case and if I had considered them, I would have found that the exception in section 5(1)(n) RTA applied. c. I failed to give sufficient weight to the fact that the parties signed an agreement titled “Flat House Sharing Agreement”, which states that the RTA does not apply and the appropriate forum for resolution of disputes between the parties is the Disputes Tribunal. d. I failed to consider whether the tenant was in breach of the Flat House Sharing Agreement by lodging his dispute in the Tenancy Tribunal instead of the Disputes Tribunal. e. I was wrong in determining at paragraph [16] of my decision that section 10 RTA states that, where a party to proceedings contends that the RTA does not apply, they must establish the facts supporting their contention. In other words, the landlord has the burden of proving the RTA does not apply to the living arrangement involving the tenant. The landlord submits that the onus is on the tenant to prove that the RTA applies, not the other way around. f. I failed to consider text messages between the landlord and tenant supporting the landlord’s claim that the agreement between the parties was for a fixed-term tenancy, not periodic. This failure contributed to my conclusion that the agreement between the parties was most likely for a periodic tenancy, not a fixed term tenancy. g. The landlord believed that the purpose of the hearing was solely to establish whether the Tenancy Tribunal had jurisdiction and they were not prepared to answer the substantive claims of the tenant. The landlord states they were overseas in the lead up to the hearing, which made communicating with Tenancy Services and the Registry difficult. The landlord claims they were advised that the hearing would solely focus on whether the Tenancy Tribunal had jurisdiction and a separate hearing would be allocated to hear the substantive claims of the tenant.
As an aside, the landlord also submits that my decision reflects the fact that Tenancy Services do not like that they do not have control over accommodation providers, namely people who provide accommodation in their own home.
I do not consider that a substantial wrong or miscarriage of justice may have occurred. The majority of the landlord’s submissions reflect a disagreement with my decision. As that District Court held in Loh v Puri [2019] NZDC 1993: ...Rehearings are about challenges to the processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
If the landlord does not agree with the Tribunal’s decision, the appropriate course is to file an appeal with the District Court.
I have considered the landlord’s submission that they believed the purpose of the hearing was solely to determine whether the Tribunal had jurisdiction and that a subsequent hearing would be scheduled to consider the tenant’s claims if jurisdiction was established.
I have considered the emails between the landlord and Registry while the landlord was overseas. Most of these emails relate to requests by the landlord to adjourn the original hearing, which was scheduled for 24 October 2024, because the landlord was overseas and did not have reliable access to the internet. The landlord appears to have had difficulty receiving a reply to their request for an adjournment, which understandably caused them frustration.
The landlord submitted a copy of an email from Tenancy Services dated 9 September 2024 stating: Good morning Briar The application is scheduled to be heard in part to establish the jurisdiction of the Tenancy Tribunal in this specific instance. ... [emphasis added]
The landlord claims they have emails from Tenancy Services and the Registry stating that the hearing would solely focus on whether the Tribunal has jurisdiction and that a separate hearing to consider the tenant’s claims would be scheduled if jurisdiction was established. The landlord did not submit copies of these emails.
The Notice of Hearing listed the following claims raised by the Tenant to be considered at the hearing: Vacated tenancy Jurisdiction – s 4, 77, 78 Refund of bond – s 22B Bond not lodged – s 19 Application fee refund – s 102(4) Smoke alarms regulations – s 40(1)(ca), 45(1)(ba)
I did not consider the claims that the bond was not lodged or the smoke alarms regulations, as the tenant did not make any submissions on these issues at the hearing.
At the beginning of the hearing, I advised the parties that I would hear from them first on the issue of jurisdiction and then on the substantive claims raised by the tenant. No objection was made by either party.
I consider it is clear from the Notice of Hearing and email to the landlord sent on 9 September 2024 that the issue of jurisdiction would only comprise part of the hearing and the balance would involve consideration of the claims raised by the tenant.
The landlord did not refer to any new evidence they would have submitted if a second, subsequent hearing was scheduled to consider the substantive claims raised by the tenant.
In all the circumstances, I am not convinced that a substantial wrong or miscarriage of justice may have occurred.
The landlord’s application for a rehearing is declined.
The stay of proceedings issued in the Order dated 16 December 2024 is lifted.

Tenancy Tribunal case 4980788 — Smoke alarms at 17 Moana Avenue, Surfdale, Waiheke Island 1081

At a glance

Claims & awards

Tenancy Tribunal case 4980788 — Smoke alarms at 17 Moana Avenue, Surfdale, Waiheke Island 1081

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions