Tenancy Tribunal Denies Rehearing Request Due to Lack of Substantial Wrong

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[2025] NZTT 5223553, 5191112

TENANCY TRIBUNAL AT DUNEDIN | TE TARAIPIUNARA RETIHANGA KI ŌTEPOTI

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The application by the tenants for a rehearing is dismissed.

Reasons:

1. The landlord and two of the tenants attended the hearing.

2. On 7 May 2025 the Tribunal made an order dismissing the tenants’ application for compensation and exemplary damages and for the tenants to pay the landlord arrears and compensation of $10,166.76, after refund of the bond.

3. On 13 May 2025 the tenants applied for a rehearing on numerous grounds, not limited to but including:

a. Damages were not assessed individually pursuant to section 49A,

b. That damage such as to the kitchen vinyl was careless,

c. Wall damage was wear and tear,

d. They had been charged twice for cleaning costs,

e. The adjudicator asked the landlord leading questions,

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f. The adjudicator did not address all the issues they brought up,

g. The witnesses for the landlord were biased,

h. The adjudicator was biased towards the landlord and had pre-determined the matter.

4. 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”.

5. 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.”

6. The High Court in Angelo v Lehr [2022] NZHC 3033 confirmed that it was not a miscarriage of justice to decline a rehearing just because evidence was not considered at the original hearing, when that evidence could have been produced at the original hearing.

7. 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:

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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.

8. 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.

9. 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?

10. For the following reasons the tenants have failed to establish the grounds for a rehearing:

a. The fact that the tenants disagree with the decision is not a ground for a rehearing or to give them a second opportunity to present their case,

b. The Tribunal process did not disadvantage the tenants in any way,

c. Nor is there any evidence to support that the Adjudicator was in any way biased towards the landlord or predetermined the applications,

d. The fact that the Adjudicator asked the landlord and also the tenants questions is in line with the inquisitorial nature of the Tribunal process,

e. In making any decision it is for the Adjudicator to determine whose evidence is preferred,

f. Both parties provided significant evidence during the hearing,

g. The interests of justice require parties to put their best case forward at the hearing and both parties had ample opportunity to do this,

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h. Although the tenants were entitled to legal representation because of the amount in dispute but for whatever reason chose not to have a representative at the hearing, the evidence supports that during the process they had access to legal advice,

i. The tenants have not provided any new evidence which may have changed the outcome.

11. I consider no substantial wrong or miscarriage of justice has occurred which justifies a rehearing.

12. The objective of the Tribunal is to determine expeditiously disputes arising between landlords and tenants.

13. A rehearing is not an alternative to an appeal. If the tenants are dissatisfied with the decision, then the appropriate course of action would have been for them to appeal the decision.

14. For the avoidance of doubt the Order of the Tribunal dated 7 May 2025 remains in full force and effect.

[NAME]

04 June 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: