What was the outcome of Tenancy Tribunal case 5027611?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 5027611?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5027611?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5027611?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11689127-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5027611?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 5027611?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5027611?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5027611?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11689127-Tribunal_Order.pdf.

30A Darcy Place, Massey, Auckland 0614 Tenancy Tribunal Case 5027611 — Rent arrears

Order

The application for rehearing is dismissed.

Reasons

On 30 January 2025, the Tribunal made an order requiring the tenant to pay the landlord $320.00.
On 31 January 2025, the landlord applied for a rehearing because rent arrears were not included in the order. The landlord claims rent arrears are included as a claim raised in their written application and that a miscarriage of justice has occurred because rent arrears were not addressed at the hearing.

THE LAW

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”.
The person applying for a rehearing 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 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.

ANALYSIS

The landlord submits that they forgot to raise rent arrears as a claim orally at the hearing. The landlord submits it is included as a claim in their written application and the Tribunal has an obligation to ensure that an applicant presents all of the claims raised in their written application. The Tribunal did not do this and therefore, the landlord claims a procedural error has occurred.
I disagree. As the applicant, the landlord has the onus of proving their claim to the civil law standard of proof, on the balance of probabilities. It is not the role of the Tribunal to ensure that an applicant presents all of the claims raised in their written application or that the necessary evidence to prove such claims is submitted. As the District Court stated in Katipo v Clarke & McCarthy (DC) TT233/02: ...[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 of 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 landlord has not proven that a procedural error occurred. Both parties were sent the notice of hearing and appeared at the hearing on 29 January 2025. The fact that the landlord forgot to raise rent arrears orally as a claim at the hearing is not a procedural error, but rather an oversight on their behalf. The Tribunal is not required to vet an applicant’s oral submissions with their written application. It is up to the applicant to raise their claims and submit supportive evidence at the hearing.
The rent summary proving the landlord’s claim for rent arrears is not fresh evidence that was not reasonably available at the first hearing.
The landlord has not proven that a miscarriage of justice or substantial wrong has occurred and their application for a rehearing is dismissed.
It remains open to the landlord to file a fresh application for rent arrears. Due to a recent amendment to section 91A of the Residential Tenancies Act 1986, the landlord does not need to provide the Tribunal with a physical address for service for the tenant if they choose to file a fresh application. The landlord is able to use the tenant’s email address for service recorded in the tenancy agreement, provided they file their application within two years of the tenancy ending. 1

Order

The application for rehearing is dismissed.

Reasons

On 30 January 2025, the Tribunal made an order requiring the tenant to pay the landlord $320.00.
On 31 January 2025, the landlord applied for a rehearing because rent arrears were not included in the order. The landlord claims rent arrears are included as a claim raised in their written application and that a miscarriage of justice has occurred because rent arrears were not addressed at the hearing.

THE LAW

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”.
The person applying for a rehearing 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 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.

ANALYSIS

The landlord submits that they forgot to raise rent arrears as a claim orally at the hearing. The landlord submits it is included as a claim in their written application and the Tribunal has an obligation to ensure that an applicant presents all of the claims raised in their written application. The Tribunal did not do this and therefore, the landlord claims a procedural error has occurred.
I disagree. As the applicant, the landlord has the onus of proving their claim to the civil law standard of proof, on the balance of probabilities. It is not the role of the Tribunal to ensure that an applicant presents all of the claims raised in their written application or that the necessary evidence to prove such claims is submitted. As the District Court stated in Katipo v Clarke & McCarthy (DC) TT233/02: ...[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 of 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 landlord has not proven that a procedural error occurred. Both parties were sent the notice of hearing and appeared at the hearing on 29 January 2025. The fact that the landlord forgot to raise rent arrears orally as a claim at the hearing is not a procedural error, but rather an oversight on their behalf. The Tribunal is not required to vet an applicant’s oral submissions with their written application. It is up to the applicant to raise their claims and submit supportive evidence at the hearing.
The rent summary proving the landlord’s claim for rent arrears is not fresh evidence that was not reasonably available at the first hearing.
The landlord has not proven that a miscarriage of justice or substantial wrong has occurred and their application for a rehearing is dismissed.
It remains open to the landlord to file a fresh application for rent arrears. Due to a recent amendment to section 91A of the Residential Tenancies Act 1986, the landlord does not need to provide the Tribunal with a physical address for service for the tenant if they choose to file a fresh application. The landlord is able to use the tenant’s email address for service recorded in the tenancy agreement, provided they file their application within two years of the tenancy ending. 1

Tenancy Tribunal case 5027611 — Rent arrears at 30A Darcy Place, Massey, Auckland 0614

At a glance

Tenancy Tribunal case 5027611 — Rent arrears at 30A Darcy Place, Massey, Auckland 0614

At a glance

Claims & awards

Order

Reasons

THE LAW

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

THE LAW

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions