What was the outcome of Tenancy Tribunal case 4592312?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4592312?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4592312?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4592312?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9648406-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4592312?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4592312?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4592312?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4592312?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9648406-Tribunal_Order.pdf.

74a Deacon Road, Riverhead, RD 2, Riverhead 0892 Tenancy Tribunal Case 4592312 — Healthy homes

Order

The application is dismissed.

Reasons

The Tribunal must consider an application filed by Mr Robbins (the Applicant) against Mr Zhang (the Respondent). The application relates to widespread matters around the lawfulness and standard of the dwelling, but there is a preliminary issue as to whether in fact this dispute falls within the Residential Tenancies Act 1986 (RTA). I convened a hearing on 15 November 2023 in order to determine that preliminary question.

BACKGROUND

The premises are located at A/74 Deacon Road, Riverhead. It is clear from the evidence that the premises a rural.
In late June 2022, a lease agreement was entered into between Golden Family Trust and Kirstens Livestock Limited. Glen Cooper who is a director of Kirstens Livestock Limited signed the agreement on behalf of that company. The lease agreement records the following: Premises: Located at 74 Deacon Road Riverhead 0892. Farm, excluding the residential part (see red line in the attached picture), including the Barn, the hay shed, the pasture paddocks and fences... Use of the property: This property is to be used as a collection point and then distribution of animals either to lifestyle blocks or back to our farms from animals sourced nor ot, and will also have come freezer containers beside the existing shed containing frozen surplus meat for distribution from there by Kirstens Livestock Limited. Term: one year, then the renew year by year. Commencement date: 1 st July 2022.
The agreement sets out various obligations held by both parties.
It is normally the situation that when a contract is entered into involving a trust, the contracting party is not the trust (ie Golden Family Trust), but the trustees. However for brevity in this decision I will simply refer to the landlord as being Golden Family Trust.
The agent for the Golden Family Trust is Ezystayz Limited, and Daniel Zhang (the Respondent) as I understand matters is an officer of Ezystayz Limited.
It appears that there are disagreement sbetween the parties around what happened after the lease with Kirstens Livestock Limited was entered into. I can see that the Respondent considers that the lease continued and was not terminated, where as Mr Robbins states that the lease was terminated by Kirstens Livestock Limited on the basis that there was someone living in the barn when the lease commenced. As I will discuss further below, the statement provided by Mr Cooper does not support that Mr Cooper terminated the lease, but suggests that he entered into a new term for the lease and sublet the premises to Mr Robbins.
In any event sometime after the lease with Kirsten’s Livestock Limited commenced, Mr Robbins moved into the premises. Mr Robbins says that was September 2022.
At some stage the Golden Family Trust filed an application againt Kirstens Livestock Limited in the Disputes Tribunal. I have considered an order made by Referee McKinstry dated 14 August 2023. Mr McKinstry ordered Kirstens Livestock Limited to pay $27,906.70 for missed rent payments. Mr McKinstry concluded that the lease ended on 31 June 2023.
It is the case that Kirstens Livestock Limited did not appear at the disputes Tribunal hearing, Mr McKinstry records that Mr Cooper was unwell. At the hearing today, Mr Robbins States that Mr McKinstry’s order has been overturned, and the matter is returning to be re-heard again by the Disputes Tribunal on 1 December 2023, but I have seen no evidence supporting that.
On 15 June 2023 the Applicant filed this application with the Tribunal. The respondent recorded in the application: I have spoken to the property owners agent on numerous occasions and he just shifts everything sideways, He claims its a commercial lease not a tenancy but he and the initial lessor are fully aware that I live in the property My bed dining table cooking utensils are all here and have been seen by the properties agent ... The landlord and property agent have breached the residential tenancies act by leasing out a property and allowing a person to live in it when the property is non compliant there is running water power and a toilet but no hot water and insulation

PROCEDURAL NOTE

This case has had a difficult procedural history.
A hearing was first scheduled for 18 July 2023. On 17 July 2023 Mr Robbins applied for an adjournment of the hearing on the basis that Mr Cooper who would be a witness, was in hospital and not able to attend the hearing. The application for adjournment was declined.
A hearing proceeded on 18 July 2023. The adjudicator records that she made three telephone calls to the the Applicant which were unsuccessful, but that the Respondent answered the phone each time the adjudicator telephoned him. 20 odd minutes after the hearing start time the adjudicator received an email where the Applicant had telephoned the court to advise that he was having problems with his telephone. The adjudicator directed that a further hearing the scheduled.
A telephone hearing was then convened on 31 July 2023. The Respondent was in attendance, but the adjudicator records at all calls made to the Applicant went to voicemail. The application was accordingly dismissed.
The Applicant applied for a rehearing on the basis that he was having phone difficulties, the rehearing was granted. In granting the adjournment, the adjudicator directed that the hearing proceed in the face to face hearing, and that: If either party intends to produce any additional documents at the next hearing, they should send two copies to the Tribunal no later than seven days after the date of this order, for service to the other party.
The hearing was then scheduled to 15 November 2023 before myself.
As noted above a hearing was convened in person, in the Waitakere District Courthouse, on 15 November 2023, solely to consider the question of the Tribunal’s jurisdiction to hear this claim. Mr Robbins attended the hearing in person. Representing the Respondent was Daisy Hu and Alvin Zhang.

APPLICANTS CASE

The Applicants position is that he had entered into a verbal tenancy agreement with the Respondent, but that the respondent would not confirm that agreement in writing.
In relation to the original lease with Kirstens Livestock Limited, the Applicant says that when Kirstens Livestock Limited went to take possession of the farm, there was another person living in the barn, and because there was no vacant possession, that Kirstens Livestock Limited cancelled the lease.
The applicant says that the Respondent advertised the premises as suitable for a barn conversion, and he had reached an agreement with the Respondent that he was renting the premises for that purpose, and had told the Respondent that he wanted to receive a tenancy agreement, and he specifically did not want a commercial lease.
The Applicant states he moved into the premises in September 2022, and has race horses on the land.
Ultimately the Applicant says that he personally paid some $30,000.00 to the Respondent, as well as funding work in order to convert the barn to being residential premises, which included funding electrical work. The Applicant states he can prove these payments by way of receipts.
The Applicant states that the Respondent required that he pay GST.
However, the Applicant states that the relationship soured around the time that the council wanted to undertake a ‘warrant of fitness’ check for the building.
In relation to the Disputes Tribunal order, the Applicant states that has been overturned, but has not provided evidence of that.

RESPONDENTS CASE

In short, the Respondents position is that there is no residential tenancy agreement with the Applicant, and that the only agreement is the lease with Kirstens Livestock Limited.
On 4 July 2023 the Respondent emailed the Tribunal providing a copy of the lease between Golden Family Trust v Kirstens Livestock Limited, and stating: The applicant Geoff Robbins is not the tenant, he claimed he is Glenn's sub tenant, but Glenn denied so. I have also applied for district tribunal in Feb and awaiting for the hearing ref.: DT CIV-2023-090-000354 - Golden Family Trust v Kirstens Livestock Limited Geoff is currently illegally staying at the property and We are seeking tribunal order to vacate the current illegal occupants
The Respondent disputes receiving any payments from the Applicant.
The Respondent opposes this claim.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

ANALYSIS

The question for the Tribunal to determine at this time, is whether there is a residential tenancy agreement that applies between the Applicant and Respondent.
I begin by noting that Mr Robbins has been very critical of the Respondent not being present at the hearing today. I am not convinced that concern is correct, as I note that Daniel Zhang did attend the previous telephone hearings, so clearly he was prepared to engage with the Tribunal over this claim. Mr Zhang has provided evidence to show he is in China on 15 November, and he has arranged for representatives to appear at the hearing in his place. I note also that Daniel Zhang had asked if he could attend the hearing by telephone, but that was declined given the direction of the Tribunal had been for a hearing in person. Because a phone hearing was declined, then Daniel Zhang appointed the two representatives who attended the hearing.
I have seen no evidence or indication to suggest that the Respondent has been unwilling to engage in this Tenancy Tribunal process.
In support of his claim that there was a tenancy, the Applicant has referred to the evidence from Mr Cooper, which is a written statement. Mr Cooper was not at the hearing, Mr Robbins advised that was because of medical reasons. However I will accept the written statement in which Mr Cooper states: Good afternoon Geoff I can confirm the following 1/ I leased the property off Daniel and his Property management company in July last year 2/ I paid three months rent in advance plus GST 3/ Daniel breached the agreement as there was an existing tenant occupying the property whom have lived there for 4 years and upon my signing of the lease Daniel gave him 24 hours to vacate the property. 4/ The tenant had maintained the property for the owners in Lieu of rent 5/ You leased the property through me from the Landlord Daniel which commenced on the 14 September 2022. 6/ You advised me that it needed to be a tenancy of which I conveyed those views to the Landlord. Daniel the Landlord told me the building warrant had expired and had been de-registered and they were sorting that out so it should not be an issue 7/ Daniel said for me to collect the rent from you and recover my payments and when that was done they would provide you with a tenancy agreement 8/ I did as instructed and stopped paying Daniel in December as I informed him I would not supply you with a tenancy agreement as it was not my property and he needed to do it 9/ In february Daniel asked me to contact you and get you to pay him the rent directly and Daniel said he will supply you with a tenancy agreement 10/ As per your discussions with me you made payments directly to daniel and he still has not provided you with a tenancy agreement 11/ Daniel agreed to an extension on the property lease with me in January for a further 12 months and as per your request and then reaffirmed he would sort a tenancy agreement. 12/Even though it was a tenancy Daniel Charged GST the rent was 780.00 per week plus GST. Unless you tell me otherwise daniel has never furnished a GST invoice for you 13/ Everything was verbal agreements and he has always avoided any paperwork I hope this recollection is understandable regards Glen Cooper
In my view, this statement does not support that there was a tenancy agreement in place between the Respondent and Applicant, rather is confirms there was an existing lease in place between Kirstens Livestock Limited and Golden Family Trust. In that regard the statement confirms that there was the initial lease (which has been provided to the Tribunal), but then in paragraph 11 he indicates that the lease was then extended in January (presumably 2023) for a further 12 month period. Again Mr Cooper states: 11/ Daniel agreed to an extension on the property lease with me in January for a further 12 months and as per your request and then reaffirmed he would sort a tenancy agreement.
Based on what Mr Cooper is saying, even at the time of the hearing today there is an extant lease with Kirstens Livestock Limited.
Normally when a lease it extended, the same terms will carry over to the extended lease. When I consider the original lease with Kirstens Livestock Limited, that does have the appearance of being a commercial lease, as opposed to a lease for a residential tenancy. For example: a. The lease expressly set out the purpose for which the lease was entered into, being a farm operation. b. The rental included GST, we are GST is not charged for residential tenancies. The lessee was responsible for the repair and maintenance of the premises, whereas in a residential tenancy that is the exclusive responsibility of the landlord. c. Rental payments were to be made in block payments, as opposed to a maximum of two weekly rental payments if it were a tenancy. d. The lease recorded that any dispute was to be advanced via the “small claim court”, which I take to mean Disputes Tribunal, again consistent with a commercial lease.
There are otherwise no feature in this case which suggest to me there is a tenancy, other than Mr Robbins evidence of an oral tenancy agreement. Rather that oral evidence conflicts with the wider evidence, that includes: a. The ‘landlord’ charging GST. GST is routinely charged with a commercial lease, but cannot be charged with a residential tenancy. b. The fact the of the ‘landlord’ renting the premises to Mr Cooper very clearly recording in the lease agreement farm / commercial premises, without any logical reason why the premises would then be rented as a residential tenancy. c. The ‘tenant’ undertaking very significant remodelling work on the building at the tenants expense. That would not be consistent with a residential tenancy, but may be consistent with a commercial lease, where often tenants will undertake significant works at their expense.
I am not persuaded that the Applicant, Mr Robbins, has proven that he does have a tenancy agreement in place with the Respondent.
It could be that Kirstens Livestock Limited have sublet the premises to Mr Robbins if there was an extended lease for the premises, but that would not make Mr Zhang or Golden Family Trust the landlord, it would make Kirstens Livestock Limited Mr Robbins landlord.
Accordingly I find the evidence falls short of establishing that Mr Robbins has any residential tenancy with Mr Zhang, therefore the Tenancy Tribunal does not have jurisdiction to hear this claim.

Tenancy Tribunal case 4592312 — Healthy homes at 74a Deacon Road, Riverhead, RD 2, Riverhead 0892

At a glance

Tenancy Tribunal case 4592312 — Healthy homes at 74a Deacon Road, Riverhead, RD 2, Riverhead 0892

At a glance

Claims & awards

Order

Reasons

BACKGROUND

PROCEDURAL NOTE

APPLICANTS CASE

RESPONDENTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

PROCEDURAL NOTE

APPLICANTS CASE

RESPONDENTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions