What was Tenancy Tribunal case 4562923 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal orders

How much money was awarded in case 4562923?

Filing Fee: $20.44 awarded to tenant; Rent In Advance: $1,700.00 awarded to tenant

What type of tenancy dispute was case 4562923?

The dispute type was not classified.

Where can I read the official tribunal order for case 4562923?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9368616-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4562923 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal orders

How much money was awarded in case 4562923?

Filing Fee: $20.44 awarded to tenant; Rent In Advance: $1,700.00 awarded to tenant

What type of tenancy dispute was case 4562923?

The dispute type was not classified.

Where can I read the official tribunal order for case 4562923?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9368616-Tribunal_Order_Redacted.pdf.

55 Grand Drive, Remuera, Auckland 1050 Tenancy Tribunal Case 4562923 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4562923 — net $1,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent in advance	$1,700.00	Rent in advance
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,720.44
Total payable by Landlord to Tenant	$1,720.44

Claims and awards in Tenancy Tribunal application 4562923 — net $1,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent in advance	$1,700.00	Rent in advance
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,720.44
Total payable by Landlord to Tenant	$1,720.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants names and identifying details.
Barfoot & Thompson Property Limited as agent for Chuan Liu must pay [The tenant/s] $1,720.44 immediately, calculated as shown in table below:
The Tribunal declares that [The tenant/s] have no further liability as it relates to the tenancy.

Reasons

The Tribunal must consider an application filed by the tenants, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
As will be seen in the order below, the central question to be determined is whether in fact [The tenant/s] are the tenants in relation to the tenancy. However for brevity I will refer to them in this decision as being the ‘tenants’, and Mr Liu and Barfoot & Thompson as the ‘landlord’.
Both ‘tenants’ appeared at the hearing on 1 September 2023 in Auckland, and landlord was represented by Mr Cao from Barfoot & Thompson DescriptionTenant Rent in advance$1,700.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$1,720.44

BACKGROUND

The tenants primarily seek to be released from the fixed term tenancy if any such agreement exists.
The tenancy is located at 55 Grand Drive Remuera. The tenancy agreement provided at the hearing records the landlord as Chuan Liu, by way of an agent, Barfoot & Thompson Limited.
As I understand matters, the premises were purchased by the landlord, and advertised for rental prior to the settlement date.
The tenants saw the tenancy advertised on-line, and applied for the tenancy on-line with Barfoot & Thompson. The application records that the tenants were seeking a lease term of “long term”. The application was made on 11 April 2023.
On 18 April 2023 the landlord emailed the tenants to advise that the tenancy agreement had been sent to them via an on-line signing platform. In the covering email, the landlord advised that “A deposit payment of $1700 (first 2 weeks rent) is required today.”
That same day the tenants made a payment of $1,700.00 to the landlord.
The tenants replied to the landlords email, indicating that they had spoken with the agent who had sold the property (Ray White), and at the start of the email recorded: Thank you so much for sending through the tenancy agreement! There are a few things that we wanted to address please (I apologise for the length of this email!).
The tenants went on to raise a number of matters relating to: a. The fire place. b. Sliding door locks c. Gas cooker d. Underfloor heating e. Pests f. Dishwasher g. Correcting the spelling of tenant names on the agreement h. Inspections i.Rent increases j.Key collection k. Entry inspection; and l.Rent payments
The landlord provided responses to some of those questions.
On 24 April 2023 the tenants emailed the landlord with further questions, and seeking to have changes to the tenancy agreement before they would sign it: There were a few other things we wanted to confirm and have added to the tenancy agreement please before we sign it. Please can you send us an updated version of the agreement so we can sign it? The changes are listed below:
The landlord responded agreeing to change the tenants names, but nothing else in the agreement.
On 28 April 2023 the tenants responded by email stating: We are happy to sign the tenancy agreement provided in writing you reply back to this email, and please delete either “yes” or “no” after each point. Please take your time and discuss with a supervisor if needed. I apologise it appears we are being difficult - but we have honestly had such a bad experience with our last land lord, in terms of them never fulfilling their responsibilities towards us as the tenants - that we need further reassurance to proceed.
The email included 5 specific questions that a ‘yes / no’ response was required in relation to.
That same day the landlord emailed the tenants stating: To be honesty with you, I been heard landlord has plan to demolish the property with 1-2 years, so probably he will ask for the exemption of full health home standard at 12 months to check see market goes back or not. So, at this stage, I can’t put yes or no and can’t stand for Barfoot & Thompson. The question you ask really make me feel hard to deal with you, and feel you are difficult. Hopefully you understand. If you want to change your mind I can ask my senior to help.
The tenants responded: We are no longer interested in renting 55 Grand Drive.
The landlord responded on 29 April: I talked to my senior about your case, actually you accepted my offer that’s why you put 2 weeks rent. By the law you have to pay the rent till we find new tenants to replace your lease. However, I know this property is not the one you actually looking for. So, at this stage we will end the lease with you, but 2 weeks rent will cover the cost for re- advertising the property and cover the lost to the landlord as well, as we lost other potential tenants when we take adds off. Please confirm if you want to end lease now.
The landlord requested the tenants apply to break the fixed term tenancy, including to pay the necessary expenses for that.
The tenants have applied to the Tribunal for orders. At the hearing the tenants advised that their primary request is to have the $1,700.00 refunded, and to have it confirmed they have no further liability to the landlord.

TENANTS CASE

The tenants state that they saw the premises listed on line, so they contacted the landlord, and on 11 April 2023 they applied for the rental online. The tenants state the advertisement did not say whether the premises would or would not be compliant with the Healthy Homes Standards. The tenants say the landlord required the payment of two weeks of rental to secure the tenancy, which was paid.
The tenants say that the landlord provided a copy of the tenancy agreement, but one of the tenants names was incorrect. The tenancy agreement did not include the required HHS information.
The tenants say that once they had seen the tenancy they had a range of questions for the landlord, and those were set out in the email on 19 April.
The tenants seek a refund of the $1,700.00 paid and to be excused from paying the break lease costs.

LANDLORDS CASE

In short the landlords position is that there was a valid tenancy agreement entered into between the parties, and that was confirmed when the payment of the first two weeks of rent was made on 18 April 2023. Therefore the landlord considers the tenants would be liable for rent payments until then next tenant moved in, which was about 5 weeks after the tenants advised they would not be taking the tenancy.

ANALYSIS

The primary outcome the tenants seek, is to have their payment of rent returned, and to have it declared they have no further liability to the landlord. For the reasons as I will now explain, I will make those orders.
Having reviewed the communications between the parties, I am satisfied that there was no contract entered into between the parties for this tenancy.
What happened in this case, is that the landlord advertised the tenancy, and the tenants applied for it. I do not consider the tenants application on 11 April 2023 was an offer to rent the premises, it was no more than an indication to the landlord that they would like to enter into negotiations.
What then happened is that there was a range of communications between the prospective landlord and tenant around the terms any contract, or to put that another way, the tenants had questions they wanted answered, and terms they wanted to see in the agreement. Those were by email and text message. 1 It does not look like all questions were answered, but the landlord did not agree to the amendments to the contract the tenants requested other than to correct a misspelt name. The communications certainly support the tenants indicating they were keen to advance negotiations with the landlord around renting the premises, but I cannot see evidence that: a. The parties agreed on the terms of the contract; or b. That the tenants accepted the landlords offer.
In contract law (which applies to tenancy agreements in New Zealand), in order for there to be a valid and enforceable contract, there are various elements that must be present, but for the purpose of this case, that includes a meeting of the minds around the subject of the contract, and consent.
The meeting of the minds is also known as consensus ad idem. As stated by Blackburn J in the well-known case of Smith v Hughes (1871) LR 6 QB 597, 607: If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.
In this case there was no mutual agreement as to the terms of the tenancy agreement (the contract), and there never has been. I cannot say that there was a meeting of the minds as to what the terms of the agreement would have been.
Furthermore for there to be a valid contract, there would need to be consent to enter into the contract (and be bound by it), and I do not see any evidence the tenants did so consent. Again the tenants had wide ranging questions some of which had not been answered, and requests for clauses in the agreement or by way of ‘yes / no’ confirmation that was not provided. When the tenants responses were not responded to in terms they agreed, the tenants confirmed they would not be proceeding, and therefore withdraw any offer or interest in the tenancy.
The landlords position is that the payment of $1,700.00 was confirmation of the agreement. I disagree. It is clear that there was no agreement as to the essential terms of the contract. I also note that the payment was described by the landlord as being a “deposit”, as opposed to being the first rental due under the contract.
The end result is that there was no valid contract formed.
The tenants are therefore not liable for the two weeks rent they have paid to the landlord, and equally they are not liable for any further costs associated with the tenancy such as ‘break lease’ expenses or further rental pending the next tenancy starting.
I record for completeness that at the hearing there was submissions and evidence around the question of whether the premises had been misrepresented, or if there had been a breach of the landlord obligations around tenancy agreements. Strictly 1 While I have not recorded the text messages above, the tenor of those communications matched the email communication. there is no need for me to consider those matters, because the tenants have achieved their primary aim in this application, to have their rent payment refunded, and declared no longer liable for the tenancy.

FILING FEE

Because the applicant has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenants have applied for name suppression which is ordered for them.

Tenancy Tribunal case 4562923 — Tenancy dispute at 55 Grand Drive, Remuera, Auckland 1050

At a glance

Tenancy Tribunal case 4562923 — Tenancy dispute at 55 Grand Drive, Remuera, Auckland 1050

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

ANALYSIS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

ANALYSIS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions