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  1. #21

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    Is it section 62 (or somewhere around there) that gives the adjudicator the right to throw out the act and rule how they see fit. I won a ruling thanks to that one once.

  2. #22
    Join Date
    Oct 2015
    Location
    Rotorua
    Posts
    471

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    Quote Originally Posted by Learning View Post
    Is it section 62 (or somewhere around there) that gives the adjudicator the right to throw out the act and rule how they see fit. I won a ruling thanks to that one once.
    But that's totally crooked don't you think? Following same logic next time murderer can walk free just because judge has a sexual attraction to the accused.

  3. #23

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    The Kangaroo Kourt wouldn't be so fickle. Lol.

  4. #24
    Join Date
    Nov 2006
    Location
    Cyberspace
    Posts
    5,725

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    Quote Originally Posted by Learning View Post
    Is it section 62 (or somewhere around there) that gives the adjudicator the right to throw out the act and rule how they see fit. I won a ruling thanks to that one once.
    The High Court decision

    His Honour Justice Keane described the background facts, statutory framework and law reform history summarised above. The building blocks of his decision are as follows.

    Section 85 of the RTA: jurisdiction

    The RTA created the Tenancy Tribunal as a forum to resolve residential tenancy disputes. The manner in which the Tribunal’s jurisdiction is to be exercised is set out in s. 85 of the RTA, which states:

    (1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between land lords and tenants of residential premises to which this Act applies.
    (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

    The Court cited Welsh v Housing New Zealand Ltd which stated that s. 85(2)[3]:

    does not create a licence for the Tenancy Tribunal to impose its views on the substantial merits and justice of the case upon one or other disputant unless its determination is based on general principles of law relating to the dispute. (Italics added).

    The Court also cited Ziki Investments (Properties) Ltd v McDonald

    [4] which stated that s. 85(2) specifically provides for that each dispute shall be determined “according to the general principles of law applying to the matter” (italics added). Keane J referred to this as “the paramount principle.” Citing Ziki he noted that although the Tribunal can decide according to “the substantial merits and justice of the case”, that is only “where possible” under the law applying[5]. This analysis of s. 85 contributed to his later analysis of s. 142, as developed below.

  5. #25
    Join Date
    Jan 2009
    Posts
    168

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    Asher J in Ziki vs McDonald:
    "the drafters of the act sought to protect both the landlord and the tenant by fair and readily enforceable rules, and not just the tenant. The court should strive to find a solution that is fair to both a reasonable landlord and a reasonable tenant, rather than to the tenant alone"


 

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