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How to approach the Tenancy Tribunal

Photo: High Court Building by Buffy May

Going to the Tenancy Tribunal is not as intimidating as most first timers imagine. However, it is important to be clear, non-emotional and prepared if you are going to have the best chance of getting the ruling you desire.

Applications

Applications for the Tenancy Tribunal are made online through the Tenancy Services website. There is a fee of $20.44 for each application. If your claim is successful then you can claim this fee back but you need to ask for this during your application.

Tenancy Services will organise mediation prior to the Tenancy Tribunal. In most cases it is better for all parties to resolve their issues in mediation or prior. The reality of the Tenancy Tribunal is the scope of ruling and punishment is not the “justice” (aka revenge) that tenants or landlords desire.

Background on the Tenancy Tribunal

The Tenancy Tribunal is the lowest tier of the judicial forum but it is important to remember it is still a legal process. Unlike most courts, Tenancy Tribunal hearings are an informal process where the adjudicator will ask questions and interact with everyone involved in the hearing. Most adjudicators are legally trained and it is not usual or necessary for tenants or landlords to have legal representation with them.

The person who brings the case to the Tenancy Tribunal is required to prove their case. So it is important to have thorough evidence and a clear way to present the facts. Judgement is made on a legal concept called balance of probabilities.

It’s important to remember that the adjudicators are not responsible for the creation of the Residential Tenancies Act 1986. Almost all of the interpretation of the tenancy law comes from the higher courts. This can result in the interpretation of the law varying over time as various higher courts make conflicting rulings. This can cause as much frustration to the adjudicators as to you. So be respectful and understand that they are part of a larger system. This is not “Judge Judy” and they are not in a position to interpret the law as they please.

Unlike Judges, adjudicators are required to re-apply for their job every 2 years. So they are motivated to make fair and correct decisions following the guidance and direction of their superiors.

Be prepared

Cases are given a limited amount of time to be heard and each adjudicator hears many cases back to back each day. Therefore, it is important to be prompt, on-time and prepared. This will not only impress the adjudicator but will give them the maximum opportunity to understand the situation and make the correct ruling.

Adjudicators can only pass judgement on tenancy issues. They are particularity focused on how the Residential Tenancies Act 1986 was breached. Adjudicators are not interested in opinions, appearances, character assassinations or people personal lives. In saying that, most adjudicators like to have an understanding of the wider picture of the tenancy, this includes the good and the bad. By this I mean what happened in the tenancy, who paid rent when, what and how was damaged, who breached which tenancy agreement's clause. They are not interested how good or bad a person is and who called who what names. There is no part of the Residential Tenancies Act 1986 that refers to this.

The rulings of tribunals are on the Justice website. It is a good idea to search though similar cases to prepare you for your case.

Evidence

Evidence must be provided to the adjudicator to confirm your version of events. This is import if you are bringing or are defending the case.

All evidence must be in the room during the hearing. It is useless saying to the adjudicator that you can “get that for them later”. To take into the account they need it there and then - this means you have to be prepared. Don’t just bring with you the documents relating to the issue in hand but bring everything you can to do with the tenancy and property in question. That way if the case heads in the direction you did not imagine, you are prepared to answer any question that is thrown at you with evidence which will impress the adjudicator and make their job in discovering the facts a lot simpler.

For a landlord this means having your insurance, titles, planning permissions, mortgage, bank statements, tenancy agreement, bond forms, property inspection reports, tenancy application, background checks, rent ledger, communications with everyone regarding the tenancy and anything else you can think of.

It is also important to bring with you evidence in a from that can be left with the adjudicator. Showing messages on your phone is fine but, unless you want to leave your phone at the court as evidence for the next 5 years, it is not practical. So take photo copies of everything including your communications with the other parties. USB sticks are allowed by some courts but not others. You are best to have as much as possible in printed form.

Types of outcomes

  • If an agreement was reached in mediation prior to the Tenancy Tribunal hearing then it's called a mediator’s order. This order can be sealed (meaning it was stamped by the Tenancy Tribunal) or not sealed. All orders are binding but sealed mediator's orders are enforceable by the Ministry of Justice.

Agreements reached in mediation are confidential and not available online.

  • If a Tenancy Tribunal hearing goes ahead then the adjudicator will issue an order. This order is legally binding and enforceable by the Collection Unit of the Ministry of Justice.

Tenancy Tribunal Orders can take the following forms: - Regain possession of the property - Orders to recover money - Orders to complete work - Orders for bond payment - Deduction of money from wages - Debt recovery costs - Order of compensation

In reality the majority of cases orders are: ending tenancies, landlords forced to repair the property or tenant to pay overdue rent.

Appealing the decision?

If you disagree with the decision made, then you have 2 options - apply for a rehearing or appeal to the District Court.

You cannot apply for a rehearing if you simply don’t like the decision, there needs to be a miscarriage of justice or something substantially wrong with the decision. This can be done within 5 working days at the District Court where your hearing took place. It is up to the court to decide if a rehearing should be granted.

You can appeal to the District Court if you think the decision is legally wrong. You can only appeal to the to the District Court if the order is valued at more than $1,000. You must do this within 10 working days and the fees are $200 for the filing fee and $900 for the first half day.

Enforcing the decision

If the order from the tribunal is not followed through then an application can be made to the Collections Unit of the Ministry of Justice to enforce it.

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