Tenant's Rehearing Application Dismissed by Tenancy Tribunal

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[2025] NZTT 5191943, 5082112

TENANCY TRIBUNAL AT CHRISTCHURCH | TE TARAIPIUNARA RETIHANGA KI ŌTAUTAHI

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The application for rehearing is dismissed.

Reasons:

1. Both parties attended the rehearing hearing.

2. On 20 March the Tribunal made orders dismissing some of the landlord’s claims and making other orders in respect of this tenancy.

3. [NAME] applied for a rehearing on the grounds that he had fresh evidence to present in relation to alleged damage (shower and carpet) and in relation to alleged breaches of quiet enjoyment by tenants. He also claimed that the Tribunal had not properly considered the evidence he presented from other tenants at the premises.

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. 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. A rehearing may also be granted where there is new

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evidence that was not reasonably available at the first hearing, if it could have affected the outcome.

6. 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.

7. 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.

8. In Wellington City Council v McMillan [2003] DCR 50, the District Court 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:

[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.

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?

9. For the following reasons [NAME] has failed to establish the grounds for a rehearing.

10. The 20 March decision sets out the onus of proof and the parties’ obligations in respect of evidence. Refer para 4 to 6 of that decision.

11. The evidence [NAME] now relies on could and should have been obtained before the 10 March hearing. The hearing was 5 months after the tenancy had ended. [NAME] had ample time to obtain any evidence required to substantiate his claims. Landlords routinely obtain quotes and evidence of damage in much shorter timeframes than that. I also note that one hearing was adjourned to allow [NAME] to file his application and he did not comply with the timetabling directions for that.

12. The evidence from the other tenant could also have been obtained before the March hearing. Further, it is unlikely to have affected the outcome. Emails from other tenants, who do not attend the hearing and are not available for questioning by the Tribunal or other party, have limited weight. I accept [NAME]’s submission that the evidence is not compelling.

13. [NAME] has not established any error with the Tribunal process. Nor has he established that the evidence now presented is “fresh”.

14. In essence, [NAME] wanted a further opportunity to present his claim. That is not grounds for a rehearing. The application is dismissed.

[NAME]

28 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: