Published tribunal order
Tenancy Tribunal case 5008628 — Exemplary damages
Decided 18 Feb 2025 · Published 18 Feb 2025 · Application 5008628
- Exemplary damages
- Property damage
Party names are redacted in the official published order.
Order
- This Order amends the 17 February 2025 Order and supersedes that Order.
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and Landlord’s names and identifying details.
- The application for rehearing is dismissed on the papers.
Reasons
- On 30 January 2025, the Tribunal made an order for [the landlord] to pay [the tenant] $5,991.31 immediately, calculated as shown in table below: DescriptionLandlordTenant Exemplary damages: Failure to lodge bond $1,500.00 Exemplary damages: Breach of quiet enjoyment $2,000.00 Exemplary damages: Unlawful entry $1,500.00 Compensation: Rebate of utility payments at 50% $252.77 Filing fee reimbursement$27.00$27.00 Repairs: Wardrobe paint$56.98 Repairs: Wall paint$35.50 Replace furnishings: Towels$59.98 Replace furnishings: Bath mat$9.00 Refund unlodged bond to tenant $900.00 Total award$188.46$6,179.77 Net award $5,991.31 Total payable by Landlord to Tenant $5,991.31
- On 6 February 2025, [the landlord] applied for a rehearing on the grounds that: a. The tenant’s cross application was deemed by Tenancy Services to contain insufficient details but it was attached at the time of the hearing; b. The landlord/head tenant was not provided with sufficient detail to clarify the contents of the tenant’s application or submit the necessary supporting evidence, thereby compromising her right to a fair hearing; c. The Tribunal reclassified the relationship as head tenant and landlord despite prior treatment of the arrangement as a flat share. This reclassification materially impacted the case and warrants reconsideration; d. Inadequate clarification was given for when the signed was superseded by the Residential Tenancies Act 1986 and why the crucial implied agreement regarding this living arrangement was not considered and the landlord/head tenant requests the issue of jurisdiction be reconsidered; e. Several of the tenant’s claims lacked evidential support and warrant reconsideration when the landlord says there is evidence supporting a conclusion to the contrary and points the Tribunal back to Exhibit 3 on page 12 of her rehearing application which the landlord/head tenant claims shows correspondence preceding and following the event; f. Reconsideration of liability is requested on the grounds that the third party did not act as the landlord/head tenant’s agent in any capacity; g. Reconsideration of all exemplary damages is requested as the landlord/head tenant submits they are unfounded in evidence, or the quantum awarded is excessive; and h. The landlord wishes to make a counterclaim for a total of $1,682.24 for the following: i. Filing fee reimbursement of $27.00; ii. Wardrobe repair of $56.90; iii. Wall paint repair of $35.50; iv. Wall plastering and painting of $400.00; v. Replacement towels of $59.98; vi. Replacement bathmat of $9.00; vii. Key replacement of $7.00; viii. Loss of rental income of two weeks at $900.00; ix. Power of $117.44; x. Water of $36.09; xi. Internet of $33.33; xii. Rubbish collection of $10.00
- 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. 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?
- For the following reasons [the landlord] has failed to establish the grounds for a rehearing.
- The Tribunal confirms it considered all evidence submitted by both parties. The landlord/head tenant has confirmed in her application for rehearing that most of her claims for a rehearing are funded on her disagreeing with the Tribunal’s decision, and the Adjudicator having not fully considered her evidence or having made findings in favour of the tenant when there was no evidence to support the Tribunal’s finding. A rehearing is not an opportunity for a party to that disagrees with a Tribunal decision to have a second opportunity to present a better case and/or relitigate its case.
- The landlord did not present any important new evidence in her rehearing application that she could not have obtained with reasonable due diligence for the original hearing. The evidence she provided in her application shows she went out to get new evidence and to look for new potential new claims against the tenant after receiving the Tribunal Order. Again, a rehearing application is not an opportunity to present new evidence the landlord could have obtained for the original hearing, but did not, and now wants to use that evidence to relitigate its case.
- The Tribunal confirms it did seek to clarify both parties claims at the start of the original hearing. This is often particularly important with tenant applications as the claims are not always clearly and concisely expressed under the relevant legal heads of claim and the Tribunal must enquire what the claims are, so it is sure of what it is being asked to decide and make Orders on. The Tribunal did no more than this and did not add claims the tenants did not confirm during the hearing that she was making. The landlord had ample opportunity throughout the hearing to request additional time to submit specific evidence after the hearing in relation to matters she now claims she was not fully aware of prior to the hearing. She did not.
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That included a requirement that applicant establish her claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
- The tenant discharged this burden of proof. If the landlord does not agree that the tenant did so, it is open to the landlord to appeal the Tribunal Order but it is not a ground for a rehearing.
- The landlord has requested that the Tribunal order a rehearing so that another Tribunal Member can reconsider the landlord’s liability on the grounds that the third party did not act as the landlord/head tenant’s agent in any capacity and can also reconsider the quantum of exemplary damages awarded as the landlord submits these are excessive. Again, being unhappy with the quantum of remedies ordered or the way that the facts were recorded or the way the Tribunal has interpreted the law, are not grounds that justify a rehearing. They are grounds for an appeal. A rehearing is not an alternative to an appeal.
- The landlord made a cross application on 26 November 2024 which was heard on 29 January 2024 in conjunction with the tenant’s application. This application was for: a. Filing fee reimbursement of $27.00, which was awarded to her in the 30 January 2024 Order; b. Wardrobe repair of $56.90, of which $56.98 was awarded to her in the 30 January 2024 Order; c. Wall paint repair of $35.50 which was awarded to her in the 30 January 2024 Order; d. Wall plastering and painting of $400.00, of which $35.50 was awarded to her in the 30 January 2024 Order; e. Replacement towels of $59.98, which was awarded to her in the 30 January 2024 Order; f. Replacement bathmat of $9.00, which was awarded to her in the 30 January 2024 Order; g. Key replacement of $7.00. This appears to be a new claim that was not considered in 30 January 2024 Order; h. Loss of rental income of two weeks at $900.00, which was considered and dismissed in the 30 January 2024 Order; i. Power of $117.44 and water of 373.53 and internet of $33.33, all of which was considered in the 30 January 2024 Order. A decision made for the tenant to be reimbursed fifty percent of the utility costs paid to the landlord ($351.20) and for the tenant to pay fifty percent of the August bill ($98.43). That resulted in a total rebate of the utility bills to the tenant of $252.77; j. Rubbish collection of $10.00, which was considered and dismissed in the 30 January 2025 Order
- Claims already heard and decided by the Tribunal cannot be re-litigated in the Tribunal. If the landlord disagrees with the Tribunal’s findings of fact or its application of the law in relation to these counterclaims, this is an issue for appeal and not for a rehearing application.
- The landlord can make a further application to the Tribunal to have any new claim for vacated arrears compensation heard. Any new claims are not grounds for granting a rehearing. The only counterclaim that is new is the for the key. None of the other counterclaims put to the Tribunal in the rehearing application are new.
- No evidence has been provided by the landlord that supports a claim that an error in process or a substantial miscarriage of justice has occurred that would justify the granting of a rehearing.
- The landlord’s application for a rehearing is dismissed for all the reasons set out above and the original 30 January 2025 Tribunal Order stands and is enforceable.