The landlord of the property rented to the Usher family won't be given an opportunity to "relitigate" the proceedings that saw $18,000 awarded to the tenants.
The landlord on the other side of a dispute over an “unliveable” rental has spoken out about where he believes things went wrong.
Simon Usher and his wife, Lynne, took landlord Richard Pretious and two property managers to the Tenancy Tribunal last year and were awarded more than $18,000 in damages.
But Pretious says he thinks the outcome could have been different if he’d defended the hearing himself.
The tribunal ruled in favour of the tenants, who said the property, which was listed as furnished, had significant issues including broken appliances, a cracked hob, nails sticking out of the deck with boards that flipped up when you stood on them and a faulty fireplace that sent smoke billowing through the house.
They’d also been required to pay six months' rent upfront to secure the tenancy; legally a landlord can require only two weeks in advance and four weeks for a bond.
The tenants claimed the landlords spied on them over the ring camera system and had disabled their power and internet when they complained about this.
Pretious disagreed with the tribunal’s findings, disputed the degree of damage, denied allegations of spying and applied for a rehearing.
He submitted 684 pages of additional evidence and nine videos in his effort to show sufficient grounds for a rehearing.
He claims the tenants were “nitpicking” or, where there was damage, must have caused it themselves.
The tenants maintain the evidence and photos they submitted showed the damage, which was there when they moved in.
“We told the absolute truth,” Usher said.
“We’ve got evidence to support everything and that’s why it’s a simple process in the court. There’s no fabrication on our side, there’s no exaggeration.”
Adjudicator Michelle Pollak, having viewed the new evidence submitted by Pretious, said she won’t rehear the case.
In a decision released last year, Pollak said an applicant had to show something had gone wrong with the tribunal’s procedure; a rehearing wasn’t an alternative to an appeal.
A rehearing wasn’t to decide if there had been a wrong finding of fact or a misapplication of the law, it was only if something had gone wrong in the process, or if there was new evidence that wasn’t available at the time of the first hearing.
Pretious claims he was given wrong advice from “the court”, to apply for a rehearing first, and then appeal if necessary after that.
He said they should have appealed in the first instance, as there’s a strict window in which an appeal can be applied for and this has now passed.
Pollak said she’d seen no evidence to support a claim that there’d been “an error in process or a substantial miscarriage of justice has occurred that would justify the granting of a rehearing”.
She found all of the evidence would have been available to the landlord and his agents at the time of the first hearing, with reasonable diligence.
A rehearing was not an opportunity to have a second chance to “relitigate” the case with a better defence because a party was unhappy with the outcome.
The three respondent parties listed on the hearing were Pretious and the two property managers, Kay Glendining, of Bravo Property Management, and Lisa Taylor, of Taylor Property Management.
Taylor took over managing the property from Glendining once the tenancy had begun to go awry. Taylor was tasked with negotiating the end of the tenancy and managing repairs.
Pretious said he’d been aware of the tribunal hearing, but hadn’t known he should attend.
“Even the day before I said to Kay, ‘Do you want me on the call as a witness for you?’ and she said, ‘No, I’ve got it all under control’”, Pretious said.
He feels she didn’t take it seriously enough, had thought her insurance would just pay out, and hadn’t prepared a proper defence.
The adjudicator said Glendining told her Pretious was “aware of the hearing, had chosen not to attend and he was on standby to answer any questions should the agent need him”.
“The owner has taken the advice of his agents that he was not needed or required to attend the hearing and accepted that advice to his detriment,” she said.
Glendining’s lawyers said, in the hearing to determine if there should be a rehearing, that Taylor should have led the defence on behalf of the property managers, because she was managing the property when the hearing took place.
However, the adjudicator found, “This was a matter for the owners and their two agents to address between them and for the owners to decide who they wanted to present their best defence to the tenants’ claims.”
Pretious doesn’t hold Taylor responsible, as, in his view, the majority of the claims related to the period when she wasn’t managing the property.
Glendining’s lawyers said the adjudicator should have realised there were gaps in the evidence during the first hearing, and given the agents time to gather better evidence.
However, Pollak said the tribunal wasn’t an investigative body and had no powers to order disclosure of evidence.
The landlord’s evidence, seen by NZME, included correspondence he had with the property managers about the tenancy and reported issues with the tenants as they emerged.
Pretious said changes were needed with property managers, particularly given people like him, who lived abroad, legally had to rely on their services.
“From what I understand, anybody can be a property manager. There are no tests or anything that you need to go through.”
Glendining was contacted by NZME with Pretious’ view and claims about her actions.
She said, “I was involved with this tenancy for a very short period of time, stepping away on 15 May 2024, days after the tenants moved in [on May 12].”
“I disagree with Mr Pretious’ views and recollections and will not be commenting on those in the media.”
Taylor did not wish to make any comment about the tribunal’s decision not to grant a rehearing, but previously told NZME she’d come on board late in the tenancy, and hadn’t known what she was walking into.
The PR and advocacy manager for the New Zealand Property Investors Federation, Matt Ball, said the best way to find a property manager was to go by recommendations.
He advised looking for property managers who were well-established and had codes of ethics and qualifications or training.
This was particularly important for landlords who lived abroad, as they were legally required to have a property manager in New Zealand.
“The agent takes on the role of landlord to a greater extent,” Ball said.
It was important for landlords to remember that when they were renting a property, they were effectively running a business.
“If you think to yourself, ‘Would I operate a business on the other side of the world, and be confident in how that was being run, and trust it to other people?’ Then go for it. But you have to accept there will be higher risks and, if you run into problems, it’s going to be harder and more expensive to fix it.”
When it came to the Tenancy Tribunal, it was important to note the tribunal expected landlords to know the law and operate at a high standard.
“It’s not a hobby ... It requires a proper amount of due diligence and research to know what your rights and responsibilities are.”
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.
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