Landlord's Rehearing Application Dismissed by Tenancy Tribunal

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[2025] NZTT 5106028, 5084111

TENANCY TRIBUNAL AT [Event location suppressed]

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. The application for rehearing is dismissed.

Reasons:

1. Both parties attended the hearing.

2. On 19 March 2025 the Tribunal made an order for exemplary damages, a rent refund, compensation, and refund of bond.

3. On 24 March 2025, the landlord applied for a rehearing on the grounds that there were false claims made by the tenant, there were material omissions in the Tribunal’s decision, procedural misrepresentations by the tenant and ultimately an unjust decision issued. In particular:

a. The Tribunal had incorrectly determined the tenancy termination date (and failed to consider key facts in that determination).

b. There was a biased application of exemplary damages as between the landlord and the tenant.

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c. The Tribunal overlooked tenant breaches and non-compliance with the Residential Tenancies Act 1986 (RTA).

d. The Tribunal ignored health and safety risks created by the tenant.

e. The Tribunal ignored the tenants’ defamation, misrepresentation, and pattern of deception.

f. There were procedural failures by the Tribunal.

4. The landlord says that the procedural failures included improper weighting of evidence, failure to acknowledge the tenants’ plans to undermine the landlord, failure to apply MBIE (tenancy services) advice, dismissing clear violations of deception, failing to identify maintenance charges, failing to ascertain dates, and incorrectly applying the law relating to unlawful entry. The landlord says these resulted in a miscarriage of justice. They also say that the stress and impact of that stress caused by the tenant’s actions was not properly considered.

5. The landlord has provided written submissions and evidence in support of these grounds.

6. The tenants have opposed the rehearing application and provided a written response.

7. I also heard from both parties who gave oral submissions supporting their respective positions.

The Law

8. Section 105(1) of the 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”.

9. 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.

10. 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.

11. 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

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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.”

12. 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 [COMPANY] v [NAME] (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.

13. 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.

https://www.westlaw.co.nz/maf/wlnz/app/document?docguid=I71a82471496811e6b8f3f870462e5362&&src=rl&hitguid=I91c0e275e01f11e08eefa443f89988a0&snippets=true&startChunk=1&endChunk=1&isTocNav=true&tocDs=AUNZ_NZ_LEGCOMM_TOC#anchor_I91c0e275e01f11e08eefa443f89988a0

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Has a substantial wrong or miscarriage of justice occurred?

14. For the following reasons the landlord has failed to establish the grounds for a rehearing.

15. All the grounds advanced, including the submissions in respect of each ground and the evidence provided supporting the rehearing application, are in respect of challenges to the findings and decisions the adjudicator made.

16. None of the grounds relate to a procedural error, or improper admission of rejection of evidence, or misconduct by any person or party. There is also no indication that any relevant or material evidence has been discovered that was not available at the time of the hearing.

17. The grounds instead relate to a complaint that the Tribunal was mistaken or wrong in its findings of fact or in its application of the law, or its weighing of the evidence; or that the Tribunal failed to accurately and adequately consider the evidence relating to the manipulation and deception of the tenant.

18. These are not grounds for a rehearing, but instead are grounds for an appeal.

19. Accordingly, the application for a rehearing is dismissed.

[NAME] 16 May 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: