What was Tenancy Tribunal case 4536962 about?

The tribunal order states: The Tribunal orders suppression of the Tenant/Landlord name and identifying

How much money was awarded in case 4536962?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4536962?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 4536962?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9343075-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4536962 about?

The tribunal order states: The Tribunal orders suppression of the Tenant/Landlord name and identifying

How much money was awarded in case 4536962?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4536962?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 4536962?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9343075-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4536962 — 14-day notice

Order

The Tribunal orders suppression of the Tenant/Landlord name and identifying details.
The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at midnight on Saturday 16 September 2023.

Reasons

This decision is to read alongside the adjournment order dated 07 June 2023. [The landlord’s representative] have appeared for the landlord. There has been no appearance by the tenant, nor [The tenant’s representative]. I am satisfied that all parties, including [The tenant’s representative] have been notified of the venue, date, and time of this hearing.
The tenancy in this case commenced on 18 January 2018 and is periodic. The unit occupied by the tenant is contained in a complex managed by the landlord who provide accommodation to people with mental health and addiction issues.
On 29 March 2023, the landlord filed an application seeking the immediate termination of the tenancy, on the grounds that: (i) That on 19 January 2023, the tenant assaulted or threatened to assault an agent of the landlord, namely [the landlord’s agent], section 55(1)(c)(iii) of the Residential Tenancies Act 1986 ( The “Act’), further that the act was a breach incapable of remedy and that it would be inequitable to refuse to terminate the tenancy, section 56(1)(c) of the Act. (ii) That on 28 February 2023, the tenant committed a breach of section 48(1) of the Act by refusing entry to an agent (Fire Technician) of the landlord, that this was a breach that was incapable of remedy, and that having previously been ordered by the Tribunal not to interfere with such visits, it would be inequitable to refuse to terminate the tenancy, see section 56(1)( c) of the Act, (iii) That on 28 February 2023, the tenant threatened to assault an agent of the landlord, namely [the landlord’s representative], section 55(1)(c) (iii) of the Act, further that the act was a breach incapable of remedy and that it would be inequitable to refuse to terminate the tenancy, section 56(1)(c) of the Act, (iv) That on 07 March 2023, the tenant assaulted a neighbour, see section 55(1)(c)(v) of the Act, further, that the incident on 07 March 2023 also constituted a breach of the tenant’s obligation not to interfere with the reasonable peace, comfort, and privacy of neighbours, that this was a breach that was incapable of remedy, and that it would be inequitable to refuse to terminate the tenancy, see section 40(2) (c) and section 56(1) (c) and 55(2) of the Act,
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Act.
The claims were initially listed for hearing on 05 May 2023. The hearing was adjourned and subsequently rescheduled for 31 May 2023. On that date the parties appeared in person, with the tenant being granted leave to have representation from his mother. The Tribunal then adjourned having heard part of the evidence. The matter was then scheduled for 17 July 2023. There was a further application for an adjournment based on unwellness and the matter was once again rescheduled to 15 August 2023. This is a reserved decision. Law
Under section 56(1) of the Act, the Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate.
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so. Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
Under section 56(1)(c) of the Act, the Tribunal may nevertheless refuse to make an order to terminate, if it is not satisfied, taking into account the nature or extent of the breach that it would not be inequitable to refuse.
In determining the exercise of the discretion in section 56(1)(c) of the Act the District Court in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, stated at [61]: [61] Factors which are relevant to whether it would be inequitable to refuse to terminate this tenancy include: • The history of the tenancy. • Whether there has been a persistent failure after repeated warnings. • Whether the history of breaches was such that it was unlikely the tenant would comply with their obligations in the future. • Whether the breach was inadvertent or deliberately committed. • The conduct of the landlord. • The gravity of the breach. • Whether termination is a proportionate response to the breach.
Section 55(1) of the Act provides that the Tribunal shall terminate a tenancy, if under sub section 55(1)(c)(v), it is satisfied that the tenant has assaulted or threatened to assault any occupier or neighbour of the premises.
Sub section 55(2) of the Act provides the Tribunal with a discretion to refuse to order termination under subsection (1) but only if,: ...it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies.
In McLeod v Housing New Zealand Ltd, High Court Auckland AP50 – SW01, 16 July 2001, the Court considered that the discretion in 55(2) was only available to the Tribunal if all three limbs were satisfied.
In the case of Collins v Housing New Zealand, High Court Christchurch, CIV – 2004 – 409 – 717, 2 July 2004, His Honour Justice Keane, accepted that an assault, or threat of assault, once made could not be remedied. His Honour formed the view however, that the discretion in section 55(2) of the Act remained, regardless of whether the breach was capable of remedy or not. The Court held that if the breach could not be remedied, then the issue could be set aside and the Tribunal go on to consider the two remaining factors in 55(2), namely, whether the landlord had been compensated for any loss arising from the breach, and whether it was unlikely that the tenant would commit any further breach of the same kind. Events of 19 January 2023
The Tribunal has heard from a housing case officer with the landlord. [The case manager] gave evidence over the telephone due to illness and health restrictions preventing him from attending the Tribunal in person. [The case manager] stated that on 19 January 2023, he accompanied a property manager, to the property for an inspection. [The case manager] stated that upon knocking, the tenant answered and exited the property. As the tenant did so he raised his hand, as if to strike [The case manager] to the head, but did not do so. There were no words accompanying the gesture. During the inspection, the tenant remained outside on a balcony.
Near the completion of the inspection [The case manager] stated that he went outside and stood on the balcony with the tenant. [The case manager] stated while standing on the balcony the tenant raised his hand to his face using an open palm, like he was going to strike him, whereupon [The case manager] stated he used his arm to push the tenant’s hand away. Once again there were no words spoken. [The case manager] stated that the tenant appeared intoxicated. [The case manager] stated had he not put his arm up to stop the tenant, that the tenant’s hand would have contacted his face. [The case manager] stated that he had felt threatened enough to raise the matter with [The tenant’s representative], adding that in his view there is an ongoing risk of assaultive behaviour by the tenant toward the landlord and others.
The tenant stated that he raised his hand to [The case manager]'s face as a means of “facial recognition,” and that although there was no contact with [The case manager]’s head, he described the potential contact as more of a tap than a punch.
The landlord submits that the tenant’s act of attempting to apply force to [The case manager] constituted an assault or threat to assault an agent of the landlord, and further that there were no grounds on which to exercise the discretion in section 55(2) and refuse to terminate the tenancy. The landlord also seeks to rely on provisions relevant to termination in cases where a breach is incapable of remedy, arguing that it would be inequitable to refuse to terminate the tenancy, under section 56(1)(c) of the Act.
Assault is defined in section 2(1) of the Crimes Act 1961, as the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has the present ability to effect his purpose.
I am satisfied more likely than not that the tenant’s attempt at “facial recognition,” was an act of attempting to apply force to the face of [The case manager] without his consent, meeting the definition of an assault. The conditions for terminating the tenancy under section 55(1)(c)(iii) have been satisfied. I will deal with the matters relating to section 55(2) later. Events of 28 February 2023
[The landlord’s representative] stated that he and a fire technician visited the complex on 28 February 2023 at approximately 1.15 pm to conduct work on a fire control panel on the outside of the building. No notice had been given as the landlord was not entering the premises to conduct the work. [The landlord’s representative] stated that shortly after arriving the tenant emerged from outside and made his way to his unit, which is located on the second floor. [The landlord’s representative] stated without warning the tenant proceeded to push over a ladder being used by the technician, fortunately without anyone on it at the time. [The landlord’s representative] stated that he approached the tenant to explain why the technician’s presence and the work being done. [The landlord’s representative] stated that the tenant assumed a fighting stance, fists clenched, and in an angry tone stated, “do you want to see my karate skills.” [The landlord’s representative] stated at the time he was on the driveway, and the tenant was on the first level balcony. [The landlord’s representative] stated he and the technician felt unsafe and left the complex. The landlord has produced an email from the technician concerned stating that there had been previous incidents, albeit without detail. The landlord has produced a prior decision of the Tribunal warning the tenant against hindering remedial work to the outside of the property. [The landlord’s representative] states that that in addition to the threats of assault, that the tenant had breached the previous order by obstructing the technician.
The tenant stated that he viewed the “installation” as being wrongful, that it had not been approved, and that the landlord had failed to give notice. While the tenant acknowledged pushing the ladder over and that he likely said the words stated, he denied raising his fist or using an angry or confrontational tone.
In the case of threats or gestures to apply force, as stated in Fogden v Wade [ 1945] NZLR 724, provided the person making the threat has the present ability to carry it out or causes the victim, on reasonable grounds, to believe that he or she has such ability, an assault occurs even without physical contact.
I favour [The landlord’s representative]’s account. I am satisfied more likely than not, that the tenant made a threat to apply force, and that [The landlord’s representative] had reasonable grounds to believe that the tenant had the ability to apply that force. The grounds to terminate the tenancy under section 55(1)(c)(iii) have been satisfied. Events of 07 March 2023
The landlord alleges that on 07 March 2023 the tenant assaulted a neighbour.
The assault concerned was reported to both the police and the landlord. The landlord has called the neighbour concerned, referred to hereafter as “X,” who gave evidence over the telephone, and has produced a written statement. On the material produced, I am satisfied that X is a neighbour of the tenant. X states that around midday on 07 March 2023 they were returning home to their nearby address. While crossing the road X noticed a male, subsequently identified as the tenant, crossing from the opposite direction. X deliberately avoided eye contact. As they passed each other X states that the male shouted verbal abuse, including racial slurs, raised his arm, and forcibly struck him to the back of the head. Another neighbour witnessed the assault and has provided the landlord with a statement. X immediately reported the matter to police who attended the scene. X states he described the attacker to the Police as [redacted]. X states that police immediately went to some nearby units. X states shortly afterward they witnessed police arrest a male, whom he then identified as the attacker.
The landlord has produced a CCTV photograph from that day showing the tenant wearing clothing described by X. The landlord has also produced a photograph of Police escorting the tenant, who is wearing the clothing described by X, from the property. X stated that he was told that the male had been charged with common assault but was not aware of the outcome.
Based on the evidence, I am satisfied, more likely than not, that the tenant assaulted a neighbour.
The agreement and provisions of the Act allow the landlord access to the property to conduct inspections, repairs, and maintenance. Failing to allow inspections, repairs and maintenance may constitute a breach, the actions constituting the breach may also, as in this case, amount to assault. In this case I am not satisfied that the assault on the agent necessarily impeded the landlord conducting the inspection. I am however satisfied that the pushing over, and damaging of the fire technicians’ ladder on 28 February 2023, was an act impeding the conducting of those repairs and therefore constituted a breach.
Having been satisfied that there has been a breach by interfering with repairs and three incidents of assault the issue turns to whether it would be inequitable to refuse to terminate the tenancy, or whether, relating to the assaults, the Tribunal could nevertheless refuse termination on the basis it would be unlikely that the tenant will commit any further breach of a similar kind.
X states that since the assault there have been two further instances where the tenant has made threats gestures and one where the tenant had made a “mock gun gesture.” As a result, X states that they suffer ongoing anxiety. The landlord states due to the tenant’s ongoing behaviour they have been forced to withdraw their support.
The landlord submits there is insufficient evidence on which to exercise the Tribunal’s discretion and refuse to terminate the tenancy either under section 56(1)(c) or 55(2) of the Act. I accept that submission, there is nothing before me to suggest that it is unlikely that further breaches of these kinds will not occur again. The tenancy is terminated. The landlord is seeking termination of the tenancy within seven days. The date of termination is a matter for the Tribunal. The landlord states that any delay terminating might pose an ongoing risk. Taking these matters into account and acknowledging the tenant’s vulnerability and reliance on a broader support network to find alternate accommodation, the Tribunal terminates the tenancy and grants possession to the landlord at midnight on Saturday 16 September 2023. Name suppression
The landlord seeks name suppression. The landlord has been substantially successful and pursuant to section 95A of the Act is granted name suppression.
Although the tenant has been unsuccessful the landlord invites the Tribunal to consider granting them name suppression
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.
The tenant suffers mental health and addiction issues. In my view while there is a public interest in the facts of this case, and reasoning of the decision, that interest does not in my view necessarily extend to the name of the tenant. On that basis I also order suppression of the tenant’s name.

Tenancy Tribunal case 4536962 — 14-day notice

At a glance

Tenancy Tribunal case 4536962 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions