By Hannah Bartlett of 
Simon Usher and his wife were awarded just over $18,000 in a Tenancy Tribunal decision. Photo: Supplied / Open Justice
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."
There were numerous issues with the property, including beds that were broken and unusable and had stained mattresses. Photo: Supplied / Open Justice / NZME
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.
Landlord took agents' advice 'to his detriment'
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."
*This story was first published on The New Zealand Herald
