Tenancy Tribunal Invalidates No Animals and No Bare Feet Rules

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[2025] NZTT Auckland | Tāmaki Makaurau 9047264

TENANCY TRIBUNAL AT Auckland | Tāmaki Makaurau

APPLICANT: [redacted]

RESPONDENT: [redacted]

UNIT ADDRESS: [ADDRESS], [POSTCODE], [NAME] ORDER FOLLOWING REHEARING

1. This order replaces the Tribunal’s earlier order dated 25 November 2025.

2. The Tribunal declares that:

a. Rule 2 (the no animals rule) of the [NAME] dated 30/11/2022 (‘’the rules”) is invalid and was made ultra vires.

b. The so called no bare feet “rule” is not a rule at all. It has no legal effect.

3. [NAME] must pay [NAME] $20,012.94 immediately, calculated as follows:

Descriptions Applicant

Ordinary Levies $6,725.29 Money spent (on-charges) - ss 126, 127 $2,158.06 BCM collection charges - s 124 at 81% $408.72

Legal costs to 13/09/24 at 82% of actual $6,552.20

Appearance fees [NAME] at 82% actual

Legal costs to 11/10/24 at 47-81%

$891.14

$2,122.05

Filing Fee $500.00 Interest on levies to 09/10/2024 $655.48 Total award $20,012.94

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REASONS

1. [NAME] appeared for [NAME].

2. [NAME] attended by telephone.

Summary

3. The matter is before me today for rehearing consideration and rehearing.

4. The Tribunal’s original decision was delivered on 25 November 2025.1

5. I have decided to allow the application for rehearing in respect to the Tribunal’s finding in one important respect.

6. The Tribunal replaces its earlier decision with an amended order for the reasons explained below.

The Tribunal’s first decision dated 25 November 2024

7. I originally heard [NAME]’s claim on 18 September 2024. After the hearing, I invited the parties to make submissions in writing on various issues and reserved my decision.

8. On 22 September 2024, I issued directions headed, “Directions on Reserved Decision” confirming among other things the issues that the parties’ written submissions should address. Those issues included the issue of whether some of [NAME] (“the rules”) were made ultra vires.

9. Unfortunately, my directions were not sent out to the parties.

10. [NAME] filed its submissions on 14 October 2024. The submissions did not address the issue of whether the rules were made ultra vires.

11. On 25 November 2024, I issued my decision which found among other things that rule 3(d) of the rules was invalid and ultra vires as being the source rule for the “going barefoot” rule.

The rehearing application

12. On 2 December 2024, [NAME] applied for a rehearing of the matter because [NAME] had not had a full opportunity to make submissions

1 See that decision for the full details of the claim.

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on the issues the Tribunal referred to in its unsent 22 September 2024 directions.

Legal principles

13. 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”.

14. 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.

15. 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.

16. 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.

17. 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.

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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Is a substantial wrong or miscarriage of justice established?

18. [NAME] submits that [NAME] did not have a reasonable opportunity to make submissions addressing the validity of the rule 3(d) because the Tribunal did not send [NAME] its directions that identified the rules’ validity as an important issue.

19. I accept that the failure to send the directions out was a procedural error that could support a finding of a substantial wrong or miscarriage of justice. However, to justify a rehearing, there must be some adverse legal consequence or potential consequence must beyond the mere fact of a procedural error.

20. I queried [NAME] as to what adverse consequences (or potential adverse consequences) amounting to a substantial wrong existed given that the relevant invoice was only for $546.25 (and just one-third of that was for the “going barefoot” breach) and in anyway the Tribunal had to dismiss the claim due to lack of evidence that [NAME] went barefoot as alleged.

21. [NAME] identified the adverse consequence as arising from the Tribunal’s finding that rule 3(d) is invalid.

22. The rule states:

3. An owner or occupier of any unit must: …

(d) Comply with any requirements of [NAME] as to the security, control, or management of the common facilities such as lifts, signage, directory boards, security and fire prevention systems…

23. [NAME] submitted the Tribunal’s ultra vires finding would adversely affect [NAME]’s ability to carry out important duties such as installing fire safety systems because [NAME] relies on rule 3(d) to require owners and occupiers to accommodate such necessary work.

24. I accept that is a significant adverse consequence that could justify a finding of substantial wrongness or miscarriage.

25. Having reached that point, I invited [NAME] to identify how the Tribunal’s finding about rule 3(d) was challengeable. There would be no point rehearing the matter if there was no cogent argument that rule 3(d) was valid.

26. [NAME] pointed to the fact that rule 3(d) could be effectively used where [NAME] is reasonably carrying out its duties.

27. This discussion disclosed a weakness in the Tribunal’s reasoning. The Tribunal found that 3(d) was invalid as being the source rule for the “no going barefoot rule”. However, although the relevant invoice for security charges for breach of the “going barefoot” rule refers to rule 3(d), it is not certain that that rule was the

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source rule of the no bare-feet rule. The building manager may, for instance, have decided to put up a sign prohibiting bare feet in the common areas without even relying on rule 3(d). And even it was the source rule, it may be that rather than rule 3(d) being invalid, the rule was simply misapplied.

28. I accept [NAME] has an arguable case that the Tribunal’s finding that rule 3(d) is ultra vires is wrong and that potentially erroneous finding could lead to a miscarriage of justice.

Conclusion

29. I am satisfied the Tribunal’s order finding that rule 3(d) was ultra vires and invalid went too far and occasioned a substantial wrong or miscarriage of justice.

30. [NAME]’s application for rehearing is granted.

31. Having granted the rehearing, I reheard the matter. Rather than set the matter down for a full hearing on this issue, it is expedient to amend the original order to remove the potential miscarriage of justice.

32. After rehearing the matter, the Tribunal will replace its earlier order with an order that omits the findings that rule 3(d) was ultra vires and invalid.

33. The monetary orders remain as originally ordered because [NAME] did not prove on the balance of probabilities that [NAME] went barefoot, and even if rule 3(d) is not the source of the no bare feet “rule”, the no bare feet “rule” is still not a valid rule.

Costs

34. If [NAME] wishes to seek costs, it must file its costs submissions by 5:00pm Friday 28 March 2025.

[NAME] 14 March 2024

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Please read carefully:

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Rehearings:

You may make an application to the Tenancy Tribunal for a rehearing. Such an application must be made within five working days of the order and must be lodged at the Court where the dispute was heard.

The only ground for a rehearing of an application is that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur. Being unhappy or dissatisfied with the decision is not a ground for a rehearing. (See ‘Right of Appeal’ below).

Right of Appeal:

If you are dissatisfied with the decision of the Tenancy Tribunal, you may appeal to the District Court. You only have 10 working days after the date of the decision to lodge a notice of appeal.

However, you may not appeal to the District Court:

1. Against an interim order made by the Tribunal. 2. Against an order, or the failure to make an order, for the payment of money where the

amount that would be in dispute on appeal is less than $1,000. 3. Against a work order, or the failure to make a work order, where the value of the work

that would be in dispute on appeal is less than $1,000.

There is a $200.00 filing fee payable at the time of filing the appeal.

Enforcement:

Where the Tribunal made an order that needs to be enforced then the party seeking enforcement should contact the Collections Office of the District Court on [PHONE] or go to www.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.

http://www.justice.govt.nz/fines/civil-debt