What was the outcome of Tenancy Tribunal case 5191943?

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

How much money was awarded in case 5191943?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5191943?

The dispute type was not classified.

Where can I read the official tribunal order for case 5191943?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11907287-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5191943?

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

How much money was awarded in case 5191943?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5191943?

The dispute type was not classified.

Where can I read the official tribunal order for case 5191943?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11907287-Tribunal_Order.pdf.

7 Elmslie Grove, Halswell, Christchurch 8025 Tenancy Tribunal Case 5191943 — Tenancy dispute

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the rehearing hearing.
On 20 March the Tribunal made orders dismissing some of the landlord’s claims and making other orders in respect of this tenancy.
Mr Stanko applied for a rehearing on the grounds that he had fresh evidence to present in relation to alleged damage (shower and carpet) and in relation to alleged breaches of quiet enjoyment by tenants. He also claimed that the Tribunal had not properly considered the evidence he presented from other tenants at the premises.
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. 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.
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.
In Wellington City Council v McMillan [2003] DCR 50, the District Court 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: [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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Mr Stanko has failed to establish the grounds for a rehearing.
The 20 March decision sets out the onus of proof and the parties’ obligations in respect of evidence. Refer para 4 to 6 of that decision.
The evidence Mr Stanko now relies on could and should have been obtained before the 10 March hearing. The hearing was 5 months after the tenancy had ended. Mr Stanko had ample time to obtain any evidence required to substantiate his claims. Landlords routinely obtain quotes and evidence of damage in much shorter timeframes than that. I also note that one hearing was adjourned to allow Mr Stanko to file his application and he did not comply with the timetabling directions for that.
The evidence from the other tenant could also have been obtained before the March hearing. Further, it is unlikely to have affected the outcome. Emails from other tenants, who do not attend the hearing and are not available for questioning by the Tribunal or other party, have limited weight. I accept Ms Howard’s submission that the evidence is not compelling.
Mr Stanko has not established any error with the Tribunal process. Nor has he established that the evidence now presented is “fresh”.
In essence, Mr Stanko wanted a further opportunity to present his claim. That is not grounds for a rehearing. The application is dismissed.

Order

The application for rehearing is dismissed.

Reasons

Both parties attended the rehearing hearing.
On 20 March the Tribunal made orders dismissing some of the landlord’s claims and making other orders in respect of this tenancy.
Mr Stanko applied for a rehearing on the grounds that he had fresh evidence to present in relation to alleged damage (shower and carpet) and in relation to alleged breaches of quiet enjoyment by tenants. He also claimed that the Tribunal had not properly considered the evidence he presented from other tenants at the premises.
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. 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.
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.
In Wellington City Council v McMillan [2003] DCR 50, the District Court 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: [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.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons Mr Stanko has failed to establish the grounds for a rehearing.
The 20 March decision sets out the onus of proof and the parties’ obligations in respect of evidence. Refer para 4 to 6 of that decision.
The evidence Mr Stanko now relies on could and should have been obtained before the 10 March hearing. The hearing was 5 months after the tenancy had ended. Mr Stanko had ample time to obtain any evidence required to substantiate his claims. Landlords routinely obtain quotes and evidence of damage in much shorter timeframes than that. I also note that one hearing was adjourned to allow Mr Stanko to file his application and he did not comply with the timetabling directions for that.
The evidence from the other tenant could also have been obtained before the March hearing. Further, it is unlikely to have affected the outcome. Emails from other tenants, who do not attend the hearing and are not available for questioning by the Tribunal or other party, have limited weight. I accept Ms Howard’s submission that the evidence is not compelling.
Mr Stanko has not established any error with the Tribunal process. Nor has he established that the evidence now presented is “fresh”.
In essence, Mr Stanko wanted a further opportunity to present his claim. That is not grounds for a rehearing. The application is dismissed.

Tenancy Tribunal case 5191943 — Tenancy dispute at 7 Elmslie Grove, Halswell, Christchurch 8025

At a glance

Claims & awards

Tenancy Tribunal case 5191943 — Tenancy dispute at 7 Elmslie Grove, Halswell, Christchurch 8025

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