What was the outcome of Tenancy Tribunal case 5158858?

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

How much money was awarded in case 5158858?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5158858?

The dispute type was not classified.

Where can I read the official tribunal order for case 5158858?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11636549-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5158858?

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

How much money was awarded in case 5158858?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5158858?

The dispute type was not classified.

Where can I read the official tribunal order for case 5158858?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11636549-Tribunal_Order.pdf.

23 Fea Street, Dalmore, Dunedin 9010 Tenancy Tribunal Case 5158858 — Tenancy dispute

Order

The application for rehearing is dismissed.

Reasons

All parties attended the hearing, by telephone.
On 12/3/2025 the Tribunal made an order declining jurisdiction.
On 17/3/2025 applied for a rehearing on the grounds that: a. The Adjudicator mis-interpreted the exclusion test in section 5(1)(n) set out in Musson v Dobrisek & Ors Lower Hutt CIV-2006-032-36. b. Lack of evidence and weight was given to the written tenancy agreement, c. M Dakins’ behaviour by withdrawing part way through the hearing was misconduct.
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”.
To find that grounds for a rehearing exist, the applicant does not need to prove that an actual miscarriage or substantial wrong, only the potential for that, or that it may have occurred prima facie, Ward and Knight-Ward v Taitau [2021] NZDC 975.
In the District Court judgement of Wellington City Council v McMillan [2003] DCR 50, His Honour Judge Touhy confirmed that the words “substantial wrong or miscarriage of justice”, set a high standard, stating: “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. ... 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. 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 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 this 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.”
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 Ms Anderson has failed to establish the grounds for a rehearing. a. The evidence supports that Ms Dakins main use of the premises, owned by her brother, was as her place of residence and had been so since 2020. b. Although the tenancy agreement between the parties was on a standard form promoted by MBIE for residential tenancies there was only an implied agreement that all or any of the provisions of the Residential Tenancies Act 1986 applied. c. For the Tribunal to have jurisdiction the parties must agree in writing that all or any of the provisions of the Act apply to the tenancy. d. Unfortunately, I do not consider the fact the parties signed the agreement sufficient by itself to make it explicit that the Act applied. e. In addition, the roles and responsibilities provided to Ms Anderson set out further expectations of “the tenant” and “landlord” not covered in the Act. f. For these reasons I do not consider the tenancy agreement goes far enough to meet the requirements of section 8. g. However, I would comment that it would be prudent for both Mr Dakins and Ms Dakins to make clear in future tenancy agreements whether it is intended that the Act applies. h. The evidence supports that when Mr Dakins connection to the last hearing failed, he immediately contacted Tenancy Services and was advised that the hearing had finished. i. I do not consider there was any misconduct on the part of Mr Dakins with regard to the disconnection from the hearing.
I consider no substantial wrong or miscarriage of justice has occurred and the application for rehearing fails.
Although suppression was granted to the tenant in the original Order, I have declined to continue the redaction because the tenant was again unsuccessful.

Order

The application for rehearing is dismissed.

Reasons

All parties attended the hearing, by telephone.
On 12/3/2025 the Tribunal made an order declining jurisdiction.
On 17/3/2025 applied for a rehearing on the grounds that: a. The Adjudicator mis-interpreted the exclusion test in section 5(1)(n) set out in Musson v Dobrisek & Ors Lower Hutt CIV-2006-032-36. b. Lack of evidence and weight was given to the written tenancy agreement, c. M Dakins’ behaviour by withdrawing part way through the hearing was misconduct.
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”.
To find that grounds for a rehearing exist, the applicant does not need to prove that an actual miscarriage or substantial wrong, only the potential for that, or that it may have occurred prima facie, Ward and Knight-Ward v Taitau [2021] NZDC 975.
In the District Court judgement of Wellington City Council v McMillan [2003] DCR 50, His Honour Judge Touhy confirmed that the words “substantial wrong or miscarriage of justice”, set a high standard, stating: “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. ... 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. 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 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 this 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.”
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 Ms Anderson has failed to establish the grounds for a rehearing. a. The evidence supports that Ms Dakins main use of the premises, owned by her brother, was as her place of residence and had been so since 2020. b. Although the tenancy agreement between the parties was on a standard form promoted by MBIE for residential tenancies there was only an implied agreement that all or any of the provisions of the Residential Tenancies Act 1986 applied. c. For the Tribunal to have jurisdiction the parties must agree in writing that all or any of the provisions of the Act apply to the tenancy. d. Unfortunately, I do not consider the fact the parties signed the agreement sufficient by itself to make it explicit that the Act applied. e. In addition, the roles and responsibilities provided to Ms Anderson set out further expectations of “the tenant” and “landlord” not covered in the Act. f. For these reasons I do not consider the tenancy agreement goes far enough to meet the requirements of section 8. g. However, I would comment that it would be prudent for both Mr Dakins and Ms Dakins to make clear in future tenancy agreements whether it is intended that the Act applies. h. The evidence supports that when Mr Dakins connection to the last hearing failed, he immediately contacted Tenancy Services and was advised that the hearing had finished. i. I do not consider there was any misconduct on the part of Mr Dakins with regard to the disconnection from the hearing.
I consider no substantial wrong or miscarriage of justice has occurred and the application for rehearing fails.
Although suppression was granted to the tenant in the original Order, I have declined to continue the redaction because the tenant was again unsuccessful.

Tenancy Tribunal case 5158858 — Tenancy dispute at 23 Fea Street, Dalmore, Dunedin 9010

At a glance

Claims & awards

Tenancy Tribunal case 5158858 — Tenancy dispute at 23 Fea Street, Dalmore, Dunedin 9010

At a glance

Claims & awards

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Topics & place

Residential Tenancies Act sections

Frequently asked questions