What was Tenancy Tribunal case 5020388 about?

The tribunal order states: The Tribunal orders continued suppression of the Tenants’ names and

How much money was awarded in case 5020388?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5020388?

The primary dispute was Mould & damp. Related themes: Property damage, Exemplary damages.

Where can I read the official tribunal order for case 5020388?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12042199-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5020388 about?

The tribunal order states: The Tribunal orders continued suppression of the Tenants’ names and

How much money was awarded in case 5020388?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5020388?

The primary dispute was Mould & damp. Related themes: Property damage, Exemplary damages.

Where can I read the official tribunal order for case 5020388?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12042199-Tribunal_Order_Redacted.pdf.

11 Coralsea Way, Arkles Bay, Whangaparaoa 0932 Tenancy Tribunal Case 5020388 — Mould & damp

Order

The Tribunal orders continued suppression of the Tenants’ names and identifying details.
The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which was held by teleconference.
On 17 April 2025 the Tribunal made an order that the landlord pay compensation and exemplary damages to the tenants. The landlord’s cross- application was dismissed.
The Order was made following a full day in-person hearing, which both parties attended.
On 29 April 2025 the landlord applied for a rehearing on the grounds that, “As this was my first hearing of this type, I was unaware that I was able to call a witness to attend the hearing. I believed that the e-mail from the contractor would carry weight and would be believed as the truth. I believe the adjudicator improperly rejected the evidence of the written e-mail stating the facts of the case.”
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
The claim the landlord wants reheard is its claim for 4 x insurance excesses totalling $6,000.00, which the landlord says it should be compensated for because the tenant did unsatisfactory plastering work in four rooms at the premises, damaging them.
The tenant’s evidence was that apart from some work done in one room to assist the subcontractor doing the work, under his instruction, all the plastering work in question was done by the subcontractor.
The e-mail referred to in the landlord’s re-hearing application was an unsigned e-mail from the landlord’s contractor, who had engaged the subcontractor to do work at the premises, explaining what his sub-contractor had told him he had done.
The Order addresses that evidential issue as follows: “51. I have been provided with an email, apparently from the head contractor, recording what the subcontractor who did the work, explained to him about what happened.
Only Mr [R] and the subcontractor are in a position to give evidence about the circumstances in which that work was done.
Necessarily, I must give more weight to the tenant’s direct evidence, given under promise, than to the hearsay evidence from the head contractor of what he was told by the subcontractor. It was open to the landlord to arrange for the subcontractor to give direct evidence.”
That is an appropriate approach to the weighting of evidence and does not represent a possible miscarriage of justice by, “...improperly reject[ing] the evidence of the written e-mail stating the facts of the case.”
It is correct though, that the landlord’s claim was dismissed without the Tribunal having heard from the subcontractor, who was able to give direct evidence about disputed facts. It is possible that the Tribunal’s findings would have been influenced by that evidence. The landlord says the sub-contractor is willing to give evidence and wants the opportunity to have the Tribunal hear from him, by way of rehearing.
The question is whether that opportunity should be given, to avoid a substantial wrong or miscarriage of justice occurring.

Has a substantial wrong or miscarriage of justice occurred?

Is not necessary that the Tribunal be satisfied that a miscarriage of justice has in fact occurred. In Ward v Tautau 1 , the Court said (at para [21]): “The correct test for determining a rehearing is whether a ‘substantial wrong or miscarriage of justice has or may have occurred or is likely to occur’. It is unnecessary for an appellant to establish an actual miscarriage or substantial wrong but merely to raise the issue prima facie.”
In Wellington City Council v McMillan 2 (at para [18]) the Court noted that that the statutory language sets a high standard for a rehearing to be ordered and that the concepts of substantial wrong and miscarriage of justice, “...most 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; 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. ”
In considering a rehearing to allow submission of new evidence, the High Court said in Angelo v Lehr and Ors 3 (at para [73]): “The District Court Judge applied the correct approach to the appeal to the District Court. He concluded that there was nothing that suggested procedural unfairness. He carefully considered the new evidence put forward by Mr Angelo and justifiably found that none of it could be described as “new” in the sense that it could not have been provided to the Tribunal at the time of the Possession hearing. Rather, he considered that Mr Angelo simply wanted to reargue his case.” (my emphasis)
The evidence from the subcontractor is not new. No reason is given why he was not called as a witness at the hearing, except for the property manager’s statement that as it was her first hearing of this type, she was unaware that she could call a witness.
With respect, the property manager is a part of a rental management company and resourced accordingly. 1 Ward v Tautau [2021] NZDC 975 2 Wellington City Council v McMillan [2003] DCR 50 3 Angelo v Lehr and Ors [2022] NZHC 3033
The Notice of Hearing sent to the parties says explicitly: “Can I bring a witness? If you have witnesses, they can be called to give evidence. They usually wait outside the courtroom until they are called in. If you have a witness who does not agree to attend, they can be summoned. You will need to contact Tenancy Services at least five working days before the hearing to make this request. Statements or letters from witnesses may be admitted as evidence but will not carry as much weight as if the witness is present at the hearing.”
I might have nevertheless considered it unjust not to give the landlord an opportunity to call the subcontractor, if the evidence given by the tenant at the hearing came as a surprise to the landlord, meaning it could not have appreciated the relevance of the subcontractor’s evidence.
However: a. the tenant noted in a txt to the landlord on 28 May 2024, “Is [the subcontractor] coming back to check the remainder of the black mould we had in the garage? He started patching holes in the wall, but gave me a call saying all work has now been stopped? So those look very rough and unfinished”; b. when the dispute over the bond arose, the tenant emailed the landlord on 4 September 2024, “I did not put the plaster on the walls throughout the property and I only helped the handyman per his request in the bedroom upstairs”; c. in a comprehensive statement of his position filed on 20 October 2024 the tenant set out his evidence relating to those claims, which he confirmed in oral evidence at the hearing, as follows: “I had informed the PM on numerous occasions that their HM had plastered over the wallpaper, which had marks and scuffs on them (per their own inspection report). As previously mentioned, this was done under his acknowledgement, supervision and impression that it needed to be done, using his tools and I was unaware that this task was not part of the agreed work. After agreeing that I could vacate the property, the PM started to accuse me of plastering the walls on my own and later on changed the accusation to say that I instructed their HM to do the unrequested work.”
In my view the landlord cannot fairly say that the evidence given by the tenant at the hearing came as a surprise, or that the subcontractor’s evidence constitutes, “....new and important evidence not previously available. ”
The situation is, in my assessment, that the landlord made incorrect assumptions about the weight that the Tribunal would give to the evidence it presented and now seeks an opportunity to better present its case.
The authorities cited make it clear that is not the purpose of a rehearing.
For those reasons, I do not consider that a rehearing is required to prevent the risk of a substantial wrong or miscarriage of justice having occurred.
The rehearing application is dismissed.

Order

The Tribunal orders continued suppression of the Tenants’ names and identifying details.
The application for rehearing is dismissed.

Reasons

Both parties attended the hearing which was held by teleconference.
On 17 April 2025 the Tribunal made an order that the landlord pay compensation and exemplary damages to the tenants. The landlord’s cross- application was dismissed.
The Order was made following a full day in-person hearing, which both parties attended.
On 29 April 2025 the landlord applied for a rehearing on the grounds that, “As this was my first hearing of this type, I was unaware that I was able to call a witness to attend the hearing. I believed that the e-mail from the contractor would carry weight and would be believed as the truth. I believe the adjudicator improperly rejected the evidence of the written e-mail stating the facts of the case.”
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
The claim the landlord wants reheard is its claim for 4 x insurance excesses totalling $6,000.00, which the landlord says it should be compensated for because the tenant did unsatisfactory plastering work in four rooms at the premises, damaging them.
The tenant’s evidence was that apart from some work done in one room to assist the subcontractor doing the work, under his instruction, all the plastering work in question was done by the subcontractor.
The e-mail referred to in the landlord’s re-hearing application was an unsigned e-mail from the landlord’s contractor, who had engaged the subcontractor to do work at the premises, explaining what his sub-contractor had told him he had done.
The Order addresses that evidential issue as follows: “51. I have been provided with an email, apparently from the head contractor, recording what the subcontractor who did the work, explained to him about what happened.
Only Mr [R] and the subcontractor are in a position to give evidence about the circumstances in which that work was done.
Necessarily, I must give more weight to the tenant’s direct evidence, given under promise, than to the hearsay evidence from the head contractor of what he was told by the subcontractor. It was open to the landlord to arrange for the subcontractor to give direct evidence.”
That is an appropriate approach to the weighting of evidence and does not represent a possible miscarriage of justice by, “...improperly reject[ing] the evidence of the written e-mail stating the facts of the case.”
It is correct though, that the landlord’s claim was dismissed without the Tribunal having heard from the subcontractor, who was able to give direct evidence about disputed facts. It is possible that the Tribunal’s findings would have been influenced by that evidence. The landlord says the sub-contractor is willing to give evidence and wants the opportunity to have the Tribunal hear from him, by way of rehearing.
The question is whether that opportunity should be given, to avoid a substantial wrong or miscarriage of justice occurring.

Has a substantial wrong or miscarriage of justice occurred?

Is not necessary that the Tribunal be satisfied that a miscarriage of justice has in fact occurred. In Ward v Tautau 1 , the Court said (at para [21]): “The correct test for determining a rehearing is whether a ‘substantial wrong or miscarriage of justice has or may have occurred or is likely to occur’. It is unnecessary for an appellant to establish an actual miscarriage or substantial wrong but merely to raise the issue prima facie.”
In Wellington City Council v McMillan 2 (at para [18]) the Court noted that that the statutory language sets a high standard for a rehearing to be ordered and that the concepts of substantial wrong and miscarriage of justice, “...most 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; 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. ”
In considering a rehearing to allow submission of new evidence, the High Court said in Angelo v Lehr and Ors 3 (at para [73]): “The District Court Judge applied the correct approach to the appeal to the District Court. He concluded that there was nothing that suggested procedural unfairness. He carefully considered the new evidence put forward by Mr Angelo and justifiably found that none of it could be described as “new” in the sense that it could not have been provided to the Tribunal at the time of the Possession hearing. Rather, he considered that Mr Angelo simply wanted to reargue his case.” (my emphasis)
The evidence from the subcontractor is not new. No reason is given why he was not called as a witness at the hearing, except for the property manager’s statement that as it was her first hearing of this type, she was unaware that she could call a witness.
With respect, the property manager is a part of a rental management company and resourced accordingly. 1 Ward v Tautau [2021] NZDC 975 2 Wellington City Council v McMillan [2003] DCR 50 3 Angelo v Lehr and Ors [2022] NZHC 3033
The Notice of Hearing sent to the parties says explicitly: “Can I bring a witness? If you have witnesses, they can be called to give evidence. They usually wait outside the courtroom until they are called in. If you have a witness who does not agree to attend, they can be summoned. You will need to contact Tenancy Services at least five working days before the hearing to make this request. Statements or letters from witnesses may be admitted as evidence but will not carry as much weight as if the witness is present at the hearing.”
I might have nevertheless considered it unjust not to give the landlord an opportunity to call the subcontractor, if the evidence given by the tenant at the hearing came as a surprise to the landlord, meaning it could not have appreciated the relevance of the subcontractor’s evidence.
However: a. the tenant noted in a txt to the landlord on 28 May 2024, “Is [the subcontractor] coming back to check the remainder of the black mould we had in the garage? He started patching holes in the wall, but gave me a call saying all work has now been stopped? So those look very rough and unfinished”; b. when the dispute over the bond arose, the tenant emailed the landlord on 4 September 2024, “I did not put the plaster on the walls throughout the property and I only helped the handyman per his request in the bedroom upstairs”; c. in a comprehensive statement of his position filed on 20 October 2024 the tenant set out his evidence relating to those claims, which he confirmed in oral evidence at the hearing, as follows: “I had informed the PM on numerous occasions that their HM had plastered over the wallpaper, which had marks and scuffs on them (per their own inspection report). As previously mentioned, this was done under his acknowledgement, supervision and impression that it needed to be done, using his tools and I was unaware that this task was not part of the agreed work. After agreeing that I could vacate the property, the PM started to accuse me of plastering the walls on my own and later on changed the accusation to say that I instructed their HM to do the unrequested work.”
In my view the landlord cannot fairly say that the evidence given by the tenant at the hearing came as a surprise, or that the subcontractor’s evidence constitutes, “....new and important evidence not previously available. ”
The situation is, in my assessment, that the landlord made incorrect assumptions about the weight that the Tribunal would give to the evidence it presented and now seeks an opportunity to better present its case.
The authorities cited make it clear that is not the purpose of a rehearing.
For those reasons, I do not consider that a rehearing is required to prevent the risk of a substantial wrong or miscarriage of justice having occurred.
The rehearing application is dismissed.

Tenancy Tribunal case 5020388 — Mould & damp at 11 Coralsea Way, Arkles Bay, Whangaparaoa 0932

At a glance

Tenancy Tribunal case 5020388 — Mould & damp at 11 Coralsea Way, Arkles Bay, Whangaparaoa 0932

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

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions