What was Tenancy Tribunal case 5258059 about?

The tribunal order states: The Tribunal orders the continuation of suppression orders in favour of both

How much money was awarded in case 5258059?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5258059?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5258059?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12151434-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5258059 about?

The tribunal order states: The Tribunal orders the continuation of suppression orders in favour of both

How much money was awarded in case 5258059?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5258059?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5258059?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12151434-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5258059 — Cleanliness

Order

The Tribunal orders the continuation of suppression orders in favour of both parties.
The application for rehearing is dismissed.

Reasons

This decision follows a hearing held to consider [The landlord/s]’s application for a rehearing of the Tribunal order dated 19 May 2025 concerning this tenancy.
On 21 May, [The landlord/s] applied for a rehearing on the following grounds: a. She had found new evidence. b. The tenants had breached section 40(1)(d) of the Residential Tenancies Act 1986 (RTA) twice. c. Evidence was not accurately relied on. d. A previous Tribunal decision differed in finding. e. She felt discriminated against.
Section 105(1) RTA 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.
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.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
For a rehearing to be granted, the applicant 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 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.
A rehearing will not be granted on the basis of new evidence where that evidence could have been adduced at the first hearing.
When it comes to bias on the part of the adjudicator, the District Court decision of Schmidt v Hair, HC Auckland, CIV 2010-404-6804 held that the test is whether a fair minded observer might reasonably consider that the decision maker did not bring an open mind to the situation.
Another relevant decision, this time in the Court of Appeal, is Muir v Commissioner of Inland Revenue & Anor (CA) 46/06 [2007] NZCA 334. “In our view, the correct enquiry is a two stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay- observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case. This standard emphasises to the challenged judge that a belief in her own purity will not do; she must consider how others would view her conduct.”

Has a substantial wrong or miscarriage of justice occurred?

I discuss each of [The landlord/s]’s alleged grounds with reference to the law as noted above, as follows. New evidence
[The landlord/s] claimed compensation for cleaning the carpet and mattress which I declined. In order to uphold the claim, it had to be established in evidence that the relevant areas were not left reasonably clean 1 when the tenants vacated. In making such an assessment, the cleanliness of the areas at the commencement of the tenancy is relevant because a landlord cannot expect a house to be returned in a higher state of cleanliness than it was provided.
I had not found it established by the evidence that was provided to me prior to, during and after the hearing, that the carpet and mattress were completely clean at the commencement of the tenancy, or put another way, that the stains were not preexisting. This is because the evidence provided of those specific areas at the commencement of the tenancy was minimal.
[The landlord/s] in her application for a rehearing says she has found a video of the relevant areas before the tenancy which she wished to be considered. At the hearing however she was not able to explain why the video could not have been provided at the original hearing.
As discussed above, this cannot be a ground for a rehearing as there is no established reason why the evidence could not have been provided for the initial hearing. Tenant breaches
[The landlord/s] submits that the fact that the tenant breached the RTA by failing to disclose damage three times should be considered in assessing their credibility. This is a matter of the weight I gave to the evidence, which is a matter for appeal, not a ground for rehearing.
[The landlord/s] had not applied for compensation or exemplary damages for tenant breaches of section 40(1)(d) of the RTA, accordingly I was not required to make findings on such an allegation. I was tasked with determining whether the claims for compensation had been established and in doing so took into account [The landlord/s]’s evidence of the tenants’ behaviour.
The claim primarily failed due to a lack of evidence about the state of the property at the commencement of the tenancy, 2 not tenant evidence. Regardless, concerns [The landlord/s] has regarding my assessment of the evidence are matters that must be considered by an appellate court, not ones that can necessitate a rehearing. 1 See section 40(1)(c) RTA 2 At [36] Evidence
[The landlord/s] does not accept my finding that stains can be fair wear and tear. She references an alleged case Mao v Doyle [2016] NZTT Auckland 4145576 which states that carpet stains are damage, not fair wear and tear. 3
In this instance [The landlord/s] was claiming compensation for cleaning the mattress and carpet, not replacing them. Therefore, we are not discussing damage but cleanliness. 4 Fair wear and tear is however relevant to both such claims.
Fair wear and tear in terms of cleanliness references the fact that tenants are entitled to live in a premise in the usual way but must not damage a property or leave it not reasonably clean and tidy when they leave. What is reasonable takes into account that they have been residing in the premise for the period they did.
This means that a landlord cannot necessarily expect a carpet or mattress to look exactly they same as they did after a year of people living in it. Provided they are left reasonably clean, minor marks on such items may be considered fair wear and tear which was compensated for by way of rent paid.
The following explains it another way: “Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed.” 5
And further: “Fair wear and tear is limited to reasonable use...“use” must accommodate activities that could normally be expected in premises of that type” 6
A tenant is not liable for fair wear and tear, whether it be by way of damage or a level of cleanliness that is considered reasonable.
Minimal staining due to usual use can be fair wear and tear, particularly staining on mattresses which do not have a lengthy expected life span in a residential tenancy. Here I declined the claim on a lack of evidence but noted that even had I had evidence the areas were clean at the commencement, I would likely have considered the minimal marks fair wear and tear given their nature. 3 Neither the Tribunal law library nor I could find this case. [The landlord/s] was asked for it but did not produce it. 4 Section 40(1)(c) RTA 5 Sharma and Sharma v Tenant [2021] NZTT 4294819, 4293319, Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403 6 Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403
As above, [The landlord/s]’s concern regarding my assessment of the evidence is a matter she must pursue by way of appeal, rather than rehearing. Discrimination
[The landlord/s] consider that I discriminated against her in two ways: a. She felt my preference of the tenants’ evidence was prejudged and as such I did not hear her evidence fully. b. She is Māori and felt I allowed the white tenants to assassinate her character.
The tenants feel that if there was discrimination it in fact went the other way as the exemplary damages awarded in their favour were exceptionally low in their view.
I am troubled that [The landlord/s] felt this way and therefore have reviewed both hearings carefully.
Having done so, I do not find it established that I discriminated against [The landlord/s]. Firstly, it was not a matter of me preferring the tenants’ evidence over hers, I simply did not accept she had proven her case. 7 [The landlord/s] was the applicant, therefore it was her evidential burden to meet. I did not consider she had; therefore I could not uphold her claim.
Secondly, I do not accept that any matter of race entered into proceedings in any way. Neither party had any more “rights” than the other here, it was a matter of considering whether the evidence established that the stains on the carpet and mattress at the end of the tenancy were present at the commencement.
I accept that [The landlord/s] did not wish me to hear “irrelevant” submissions from the tenants that were derogatory towards her. I did allow the tenants to put forward their view and as I told them, a lot of it was irrelevant to the decision I was tasked with at the time. I did stop them when it went further than it needed to and explained that I could not give weight to a lot of what they said, however I appreciate this was not early enough for [The landlord/s]. Ultimately, my decision to hear from the tenants was not because of their race but a matter of procedural fairness. I allowed both parties ample, and equal, opportunity to have their say.
Having considered [The landlord/s]’s submissions very carefully, I do not find it established that I discriminated against her or was biased towards her or her evidence. Accordingly, this ground for a rehearing is dismissed. 7 At [36]
For the reasons set out above, I am not satisfied that it has been established that a miscarriage of justice may have occurred or did occur. Accordingly, the application for a rehearing is dismissed, and the original order stands.
Whilst I understand and appreciate that [The landlord/s] is unhappy with my decision, as she is entitled to be, the reasons she promotes for this position are ones that should be considered by the District Court by way of appeal as they are not grounds for a rehearing.
I consider it appropriate that previously made suppression orders continue.

Tenancy Tribunal case 5258059 — Cleanliness

At a glance

Tenancy Tribunal case 5258059 — Cleanliness

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