How much money was awarded in case 9033462?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9033462?

The primary dispute was Cleanliness. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9033462?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9441060-Tribunal_Order.pdf.

How much money was awarded in case 9033462?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9033462?

The primary dispute was Cleanliness. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9033462?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9441060-Tribunal_Order.pdf.

Mount Eden, Auckland Tenancy Tribunal Case 9033462 — Cleanliness

Q: What was the outcome of Tenancy Tribunal case 9033462?

The tribunal order states: The respondent’s application of a rehearing on the issue of costs is refused.

Order

The respondent’s application of a rehearing on the issue of costs is refused.

Reasons

On 24 July 2023, the Tribunal issued a decision on costs. It ordered Mr Saxena to pay 40 per cent of the Body Corporate’s legal costs.
Mr Saxena has applied for a rehearing of the Tribunal’s decision. Legal principles
Section 105(1) of the Residential Tenancies Act 1986 (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. 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 applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in 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.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.

Has a substantial wrong or miscarriage of justice occurred?

Mr Saxena had a heat pump installed in his unit without the Body Corporate’s consent.
The parties’ relationship has been dysfunctional, and the resolution of the heat pump issue could not be resolved without the resort to the Tribunal.
Mr Saxena challenges the Tribunal’s findings that:
Mr Saxena deliberately breached the body corporate rules by installing the heat pump without the Body Corporate Committee’s permission. On the information the Committee had before it, the refusal to grant permission was reasonable.
Given the risks of vitiating construction warranties, compromising the building’s cladding, and breaching the resource consent, the proceedings were properly brought.
Mr Saxena asserts that the Body Corporate admitted at mediation that the installation of the heat pump did not breach the rules. The Body Corporate objects to Mr Saxena breaching mediation privilege and does not concede there was no breach of the rules.
The Body Corporate’s manager’s breach notice to Mr Saxena dated 3 September 2023 clearly states two breaches and also mentions a “further potential breach of the Resource Consent”: The Body Corporate Rules breached are: Rule: 11 - Cleaning and maintenance Description: Owners must maintain any deck, screens, balcony, garden or courtyard forming part of the unit in a neat and tidy condition and must not enclose or glaze any part of the balcony area or place any item other than outdoor furniture, barbeques and plants on the deck or balcony without the written prior approval of the Body Corporate. Rule: 23 – Moving and installing heavy objects Description: An Owner of a unit must not, without the prior written consent of the Body Corporate, bring onto or through the common property or any unit, or erect, fix, place or install in any unit, any object of such weight, size, nature or description that could cause any damage, weakness, movement or structural defect to any unit or common property, and any such damage caused or contributed to shall be paid for by the Owner responsible. There is a further potential breach of the Resource Consent condition 35 which states “No air conditioning or heat pump shall be installed to the exterior of the building excluding the roof.”
Mr Saxena proved that Council did not consider the installation of the heat pump breached the development’s resource consent, but as the Auckland Council Team Leader commented “the building’s Body Corporate are a separate matter”: Given the siting within the balcony and screened by the balustrade, the existing heat pump will comply with condition 35. Note that any other approvals required under other legislation or with the building’s Body Corporate are a separate matter.
I am not persuaded that the Tribunal’s findings on Mr Saxena breaching the Body Corporate’s rules involved a substantial wrong or miscarriage of justice.
Mr Saxena claims that I was biased in favour of the Body Corporate.
Mr Saxena is a lay litigant who was assisted by a supporter who was not legally qualified.
The Body Corporate had the advantage of experienced counsel. Naturally, counsel could navigate the process more seamlessly. Mr Saxena was at a relative disadvantage through not having the expertise and the objective filter counsel can provide.
Mr Saxena faced the possibility of costs being ordered against him - something the Tribunal hoped would be avoided if the parties cooperated at an early stage. The Tribunal actively encouraged the parties to resolve the matter without the need for a substantive hearing, but the Tribunal’s motivation for that was not tainted by favouritism towards the Body Corporate.
I am confident in my mind that no substantial wrong or miscarriage of justice arose by reason of bias. A reasonably informed objective observer would not have considered that I was biased in favour of the Body Corporate.
I have read all of Mr Saxena’s other claims set out in his submissions in support of his application for a rehearing. I do not find that they raise a substantial wrong or miscarriage of justice. New invoice
Mr Saxena complains that the Body Corporate has since the costs order, separately invoiced him for a professional expert’s evaluation of the heat pump installation. That invoice was not part of the Tribunal’s costs decision which was for counsel’s fees and costs. The invoice does not amount to new evidence that might impugn the Tribunal’s costs decision. 1 Conclusion
I am not satisfied that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur in respect to the Tribunal’s costs order. Therefore, the Tribunal does not have the power to order a rehearing.
The application for rehearing is dismissed.

Order

The respondent’s application of a rehearing on the issue of costs is refused.

Reasons

On 24 July 2023, the Tribunal issued a decision on costs. It ordered Mr Saxena to pay 40 per cent of the Body Corporate’s legal costs.
Mr Saxena has applied for a rehearing of the Tribunal’s decision. Legal principles
Section 105(1) of the Residential Tenancies Act 1986 (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. 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 applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in 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.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.

Has a substantial wrong or miscarriage of justice occurred?

Mr Saxena had a heat pump installed in his unit without the Body Corporate’s consent.
The parties’ relationship has been dysfunctional, and the resolution of the heat pump issue could not be resolved without the resort to the Tribunal.
Mr Saxena challenges the Tribunal’s findings that:
Mr Saxena deliberately breached the body corporate rules by installing the heat pump without the Body Corporate Committee’s permission. On the information the Committee had before it, the refusal to grant permission was reasonable.
Given the risks of vitiating construction warranties, compromising the building’s cladding, and breaching the resource consent, the proceedings were properly brought.
Mr Saxena asserts that the Body Corporate admitted at mediation that the installation of the heat pump did not breach the rules. The Body Corporate objects to Mr Saxena breaching mediation privilege and does not concede there was no breach of the rules.
The Body Corporate’s manager’s breach notice to Mr Saxena dated 3 September 2023 clearly states two breaches and also mentions a “further potential breach of the Resource Consent”: The Body Corporate Rules breached are: Rule: 11 - Cleaning and maintenance Description: Owners must maintain any deck, screens, balcony, garden or courtyard forming part of the unit in a neat and tidy condition and must not enclose or glaze any part of the balcony area or place any item other than outdoor furniture, barbeques and plants on the deck or balcony without the written prior approval of the Body Corporate. Rule: 23 – Moving and installing heavy objects Description: An Owner of a unit must not, without the prior written consent of the Body Corporate, bring onto or through the common property or any unit, or erect, fix, place or install in any unit, any object of such weight, size, nature or description that could cause any damage, weakness, movement or structural defect to any unit or common property, and any such damage caused or contributed to shall be paid for by the Owner responsible. There is a further potential breach of the Resource Consent condition 35 which states “No air conditioning or heat pump shall be installed to the exterior of the building excluding the roof.”
Mr Saxena proved that Council did not consider the installation of the heat pump breached the development’s resource consent, but as the Auckland Council Team Leader commented “the building’s Body Corporate are a separate matter”: Given the siting within the balcony and screened by the balustrade, the existing heat pump will comply with condition 35. Note that any other approvals required under other legislation or with the building’s Body Corporate are a separate matter.
I am not persuaded that the Tribunal’s findings on Mr Saxena breaching the Body Corporate’s rules involved a substantial wrong or miscarriage of justice.
Mr Saxena claims that I was biased in favour of the Body Corporate.
Mr Saxena is a lay litigant who was assisted by a supporter who was not legally qualified.
The Body Corporate had the advantage of experienced counsel. Naturally, counsel could navigate the process more seamlessly. Mr Saxena was at a relative disadvantage through not having the expertise and the objective filter counsel can provide.
Mr Saxena faced the possibility of costs being ordered against him - something the Tribunal hoped would be avoided if the parties cooperated at an early stage. The Tribunal actively encouraged the parties to resolve the matter without the need for a substantive hearing, but the Tribunal’s motivation for that was not tainted by favouritism towards the Body Corporate.
I am confident in my mind that no substantial wrong or miscarriage of justice arose by reason of bias. A reasonably informed objective observer would not have considered that I was biased in favour of the Body Corporate.
I have read all of Mr Saxena’s other claims set out in his submissions in support of his application for a rehearing. I do not find that they raise a substantial wrong or miscarriage of justice. New invoice
Mr Saxena complains that the Body Corporate has since the costs order, separately invoiced him for a professional expert’s evaluation of the heat pump installation. That invoice was not part of the Tribunal’s costs decision which was for counsel’s fees and costs. The invoice does not amount to new evidence that might impugn the Tribunal’s costs decision. 1 Conclusion
I am not satisfied that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur in respect to the Tribunal’s costs order. Therefore, the Tribunal does not have the power to order a rehearing.
The application for rehearing is dismissed.

Tenancy Tribunal case 9033462 — Cleanliness in Mount Eden, Auckland

At a glance

Tenancy Tribunal case 9033462 — Cleanliness in Mount Eden, Auckland

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