What was Tenancy Tribunal case 4993427 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,600.00 ([Bond number suppressed]) to

How much money was awarded in case 4993427?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4993427?

The dispute type was not classified.

Where can I read the official tribunal order for case 4993427?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10927542-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4993427 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,600.00 ([Bond number suppressed]) to

How much money was awarded in case 4993427?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4993427?

The dispute type was not classified.

Where can I read the official tribunal order for case 4993427?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10927542-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4993427 — Tenancy dispute

Order

The Bond Centre is to pay the bond of $1,600.00 ([Bond number suppressed]) to Philippa Ruth Sherilyn Blanch immediately.
The application for rehearing is dismissed.
The application for the filing fee is declined.

Reasons

The Tribunal must consider an application for rehearing filed by the tenant. A telephone hearing was convened today to consider that rehearing request.

BACKGROUND

In terms of this rehearing request, the background can be summarised succinctly as follows: a. A range of applications have been filed by the landlord and tenant. b. A telephone hearing was originally convened before Adjudicator Ms Maher on 23 April 2024. Ms Maher records that the application she was scheduled to consider was a termination on the grounds of the tenant’s partner had threatened to assault the landlord. The hearing was adjourned for a number of reasons, including that the tenant had filed a late cross-application, and to allow both parties to obtain evidence or witnesses for the hearing. c. The tenancy ended by notice , and the tenant vacated the premises. d. The claims were subsequently amended, and the matter came before myself at a hearing in the North Shore District Courthouse. From that I issued a decision dated 31 July 2024. The end result was that the tenant was ordered to pay the landlord $4,426.71. All other claims were dismissed. e. The tenant applied for a rehearing in relation to the 31 July hearing. f. On 8 August 2024 I ordered a telephone hearing be convened in order to consider if a rehearing would be granted. In doing so I set out the relevant law that applies to rehearings, which I will also include in the section ‘Relevant Law’ below. g. On 3 September 2024 the landlord filed a new application (4993427) seeking release of the bond, on the basis of the debt established at the July hearing, and given the tenant has not paid the amount ordered. h. A hearing was convened on 8 October 2024 to consider the application for rehearing, and the bond release request. TENANT’S POSITION
The Applicant submits that a rehearing should be granted for these reasons: a. The tenant had obtained advice from an advocate, and in their view the applications filed were under the correct section numbers. b. There is new evidence. I asked the tenant what this new evidence was and why it could not have been produced at the original hearing. My understanding is that this new evidence is in response to what was raised from the last hearing. c. The tenant was not ready at the last hearing, and not expecting that the tenant’s partner could not speak. The tenant was ‘thrown’ by not having her partner speak for her. d. The Tribunal misread the rent record.
In her concluding submissions the tenant states that she thought the Tribunal would have amended her claims if there were any problems with it. LANDLORD’S POSITION
The Respondent opposes the rehearing request for these reasons: a. The application for rehearing is opposed, there has been no miscarriage of justice or substantial wrong. b. All evidence was provided to the tenant in advance, and she had time to present her defence, and the landlord believes she presented her case well. c. It would be a miscarriage of justice for a witness to also present as a representative. d. The tenant has had a reasonable time to present her case. The tenant has only over the ‘last couple of weeks’ contacted the landlord to request further information.

RELEVANT LAW

Section 105 of the Residential Tenancies Act 1986 relates to rehearings. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
The applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in the District Court Judgment of Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language 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. [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.”
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. In Jemma Trust v Rutherford (DC North Shore, CIV-2009-044-2056, 11 December 1999), the District Court quoted an extract from the Court of Appeal outlining the relevant considerations: The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite party is on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial....While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling.
As noted by Judge Christiansen in the District Court appeal of 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.

ANALYSIS

I have set out the relevant law that applies to rehearings above. In short, re- hearings are a safety measure should something have gone wrong with the hearing, normally on a procedural basis, in which case a rehearing can be approved so that the matter then returns to the Tribunal for a further hearing.
I have considered the submissions from the Applicant, and find that no procedural issues have been identified, and I cannot see any potential for a substantial wrong or miscarriage of justice to justify a rehearing, for these reasons in relation to the five broad grounds for seeking a rehearing.
The first ground upon which a rehearing is requested is that the tenant had obtained advice from an advocate, and in their view the applications filed were under the correct section numbers. As I have noted above, the District Court has confirmed that the Tribunal cannot grant an application for rehearing on the basis that the Tribunal incorrectly understood the facts or the law, and that would include the basis for the claim. That is a matter that the tenant could have challenged on appeal to the District Court. While I recognise that the tenant is out of time to file an appeal, that is not a reason I can now approve a rehearing.
The second ground is new evidence. I asked the tenant what this new evidence was and why it could not have been produced at the original hearing. My understanding is that this new evidence is in response to what was raised from the last hearing. I am not persuaded that there is new evidence available that could not have been obtained with reasonable diligence for the original hearing. There is no substantial wrong or miscarriage of justice with the procedure of the original hearing, only on the basis that the tenant now wants to introduce further (new) evidence to respond better to the claims.
The third ground is that the tenant was not ready at the last hearing, and not expecting that her partner could not speak. The tenant says she was ‘thrown’ by not having her partner speak for her. This is not entirely the case. At the commencement of the last hearing, the tenant was advised by the Tribunal that a person could not be a witness and a representative at the same time. The tenant was given the option of whether to call her partner as a witness or to have him act as a representative. The tenant chose to have her partner appear as a witness, and so he then proceeded to give evidence in the usual way. However, once he had given his evidence, he sat next to the tenant and acted in an active support person role to her. As I noted at the hearing today, my recollection is that the partner assisted the tenant with her presenting her case and referring to documents to present and gave prompts.
I am not persuaded there are grounds to order a rehearing on this basis. The tenant could have elected to have her partner represent her, but she chose another role for him. Nevertheless, other than speaking to the Tribunal, the partner was an active support person for the tenant in how she presented her case.
The fourth ground The Tribunal misread the rent record. Again this would relate to findings of fact, and is not a ground a rehearing could be approved.
Finally, the fifth ground for seeking a rehearing, is because the tenant believed that the Tribunal would have amended her claim if some claims were deemed to be brought under the incorrect sections of the Act. The Tribunal is independent, we do not advocate for any party, and if I was to amend a claim of my own motion, in order to get the claim into a position where an order could be made against the landlord, I would be advocating for the tenant.
Furthermore, the Residential Tenancies Act 1986 requires that claims are filed, and the grounds of the claim identified to the respondent (the landlord) in advance of the hearing, and the notice must include the nature of the claim and relevant sections (see section 91(2)). Unless the landlord consented otherwise, the Tribunal could not consider new claims in the course of the hearing that were not included on the notice of hearing.
For the above reasons, I find there are no grounds to approve a rehearing, so the rehearing application is dismissed.

BOND RELEASE

The landlord has applied for the release of the bond by way of a new application to the Tribunal. The landlord notes that due to an oversight the landlord omitted applying for the bond at the time of the original hearing.
The landlord confirmed that the tenant has not paid any of the amounts ordered.
As I explained at the hearing today, the bond needs to be released to the landlord to cover the debt established in the earlier order, and the bond is released on that basis.

FILING FEE

The landlord claims the filing fee in relation to the bond release application. I decline to order the filing fee. It was open to the landlord to have applied for a bond release in the original application. While I accept that the landlord missed applying for a bond release at the time, that is no reason the tenant should pay the further filing fee necessary to correct that oversight.

Tenancy Tribunal case 4993427 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4993427 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LAW

ANALYSIS

BOND RELEASE

FILING FEE

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

BACKGROUND

RELEVANT LAW

ANALYSIS

BOND RELEASE

FILING FEE

Topics & place

Residential Tenancies Act sections

Frequently asked questions