What was Tenancy Tribunal case 4597910 about?

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

How much money was awarded in case 4597910?

Is Declared Invalid And Of No Effect…: $3,500.00 awarded to tenant

What type of tenancy dispute was case 4597910?

The dispute type was not classified.

Where can I read the official tribunal order for case 4597910?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9251755-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4597910 about?

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

How much money was awarded in case 4597910?

Is Declared Invalid And Of No Effect…: $3,500.00 awarded to tenant

What type of tenancy dispute was case 4597910?

The dispute type was not classified.

Where can I read the official tribunal order for case 4597910?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9251755-Tribunal_Order_Redacted.pdf.

16A Steeles Lane, Western Heights, Rotorua 3015 Tenancy Tribunal Case 4597910 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4597910 — net $3,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
is declared invalid and of no effect. 3. Laurayno Ngawhika And Robert Pihema As Trustees For The R N R Trust is to pay [	$3,500.00	is declared invalid and of no effect. 3. Laurayno Ngawhika And Robert Pihema As Trustees For The R N R Trust is to pay
Net award	$3,500.00
Total payable by Landlord to Tenant	$3,500.00

Claims and awards in Tenancy Tribunal application 4597910 — net $3,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
is declared invalid and of no effect. 3. Laurayno Ngawhika And Robert Pihema As Trustees For The R N R Trust is to pay [	$3,500.00	is declared invalid and of no effect. 3. Laurayno Ngawhika And Robert Pihema As Trustees For The R N R Trust is to pay
Net award	$3,500.00
Total payable by Landlord to Tenant	$3,500.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of [The tenant/s] name and identifying details.
The 90-day termination notice of 16 May 2023 is declared invalid and of no effect.
Laurayno Ngawhika And Robert Pihema As Trustees For The R N R Trust is to pay [The tenant/s] $3,500.00 immediately.

Reasons

Both parties attended the hearing.
On 16 May 2023, the Respondent gave the Applicants a notice ending the tenancy on 16 August 2023.
The Applicants claim the notice is retaliatory.

Who are the parties?

Importantly, proceedings involving these parties are currently on appeal to the District Court. 1
The identity of the parties and the nature of their agreement forms part of that appeal. Indeed, there are several issues raised in this Application which are res judicata. 1 [2023] NZTT 4529825 4468600 –19 January 2023 (determination); 9 May 2023 (rehearing); CIV-2023- 063-000415 (appeal)
I have, for the benefit of the District Court, set out who appeared at this hearing, and in what capacity.
[The tenant/s] appeared for the Applicants, with their representative, [The tenant’s representative].
The Respondent Landlord named on the Applicants’ application is Laurayno Ngawhika and Robert Pihema as trustees for the R N R Trust.
Laurayno Ngawhika appeared for ‘Whanau Ngawhika-Pihema’. Several individuals, at least eight by my count, though their numbers fluctuated during the hearing, appeared on behalf of this party.
Ms Ngawhika claimed she had not received the Applicants’ application and had only just found out about it that very morning. She was at Court to support whanau in connection with unrelated court matters.
I offered to have a copy of the Applicants’ application made available to Ms Ngawhika. She requested time to read the Applicants’ application and prepare for the hearing.
The Tenants challenged the accuracy of Ms Ngawhika’s claim, stating she claimed to not have received notice of proceedings previously. I am aware of two other occasions when Ms Ngawhika claimed to not have received adequate notice, but I did not find any duplicity on her part on either occasion.
The Registry confirmed the Applicants’ application had been sent to Robert Pihema and not to Ms Ngawhika. I am satisfied Ms Ngawhika did not have knowledge of the application.
Robert Pihema arrived at the hearing shortly after it had begun. I recognised him from a previous hearing involving the R N R Trust when he appeared as its spokesman.
Mr Pihema addressed me in te reo Māori. I was able to discern and understand some words, enough to know he represented Whanau Ngawhika-Pihema, but while I was both present and listening to his presentation, I could not understand all of what he was trying to convey to the Tribunal.
There were others who identified themselves as trustees, but this appeared to be more to do with recognition of their standing in the whanau, not a legal relationship with the property as such. I did not record all their names or their positions.
For the purposes of this decision, the Landlord is the R N R Trust and its trustees, the legal owners of the property.
The Landlord asserts, as it has done so previously, its rights and authority under Tikanga Maori and specific constitutional arrangements, including He whakaputanga o te Rangatiratanga o Nu Tireni 1835 and Te Tiriti o Waitangi 1840, over their ancestral territory and properties.
The Landlord seeks resolution under traditional customs, expressing the wish for the property to be returned and vacated immediately, all under the guiding principles of aroha, manakitanga, and kaitiakitanga.
Throughout the hearing, the Landlord made clear that it did not consider I had jurisdiction concerning their dispute with the Applicants. The Landlord asked for the case to be heard in accordance with tikanga Māori.
For me, as a Pākehā adjudicator, it is easy to articulate the purposes and principles of New Zealand legislation pertaining to cases like this.
It is less easy, in the absence of informative reports and submissions, for me to understand how kaupapa Māori might apply to the dispute. I am conscious too, of the raru between the parties, and the disrespect each feel the other has shown toward them.
Cultural considerations may have some impact on the context and factual considerations in this case. Elias CJ (as she then was), in Takamore v Clarke [2012] NZSC 116, writes: 2 Although it may be tempting for courts to look for rules which obviate the need for them to engage with highly charged considerations of importance to the deceased and those close to him, such rule-making may be of doubtful legitimacy in circumstances where Parliament has not provided for such prescription despite legislation on the topic of custody and disposal of human bodies. And it is for the courts in our system to resolve civil disputes about things that matter. I agree with Perry J that it cannot be right for the courts to avoid consideration of emotional, spiritual and cultural factors when they are present, “however inconvenient it may be to do so in the short time which is commonly available to decide these cases”.
In this case, cultural considerations are relevant, but they have little bearing on the way I must exercise my judicial discretion to determine the Tenant’s application.
As I have said, there can be only one law which applies to the adjudication of this kind of dispute, and that law is set out in an Act of Parliament, namely, the Residential Tenancies Act 1986.
Consequently, I am bound to determine the dispute in accordance with s 85 of the Residential Tenancies Act 1986: 85 Manner in which jurisdiction is to be exercised 2 Takamore v Clarke [2012] NZSC 116 at [86]. (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 landlords 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 parties’ agreement has a familial genesis. I have had regard to this in determining this dispute, and previous disputes arising between these parties, to give effect to what I consider Parliament’s intentions concerning such arrangements. 3
A consideration of the transcript of the hearing will show the Tribunal faced several practical difficulties in terms of adjudicating the dispute.
The Applicants have asked the Tribunal to determine their application in accordance with Residential Tenancies Act 1986.
I initially stood the matter down to give the Landlord an opportunity to read the Applicants’ application and did discuss with the Registry whether an in-court interpreter could be arranged, but such arrangements could not be made at short notice.
The matter was called again in the afternoon, at 2.00pm. The validity of the 90- day notice of 16 May 2023 was considered and both parties were heard.
Mr Pihema raised the issue of my jurisdiction more than once, finally asking me what the source of my authority was and whether I recognised his self- sovereignty.
I told Mr Pihema I was aware of the Landlord’s position. I agreed their argument may have some merit, but it was not my place to offer a view on this issue as the higher courts have given clear direction concerning such matters.
Those with the Landlord then proceeded to vacate the hearing room leaving the Applicants to proceed with their case. 3 Family arrangements are often fractious and fleeting. What family members consider their mutual obligations to be when contracting is often different to what they understand them to be when in dispute. The Residential Tenancies Act 1986 does not squarely address this issue, perhaps because it is an Act “...to reform and restate the law relating to residential tenancies, to define the rights and obligations of landlords and tenants of residential properties.” However, it is of note that Residential Tenancies Act 1986 does exclude from its purview an arrangement where an individual occupies premises, for all intents and purposes as a tenant, concurrently with the Landlord or a member of the Landlord’s family: Section 5(1)(n) Residential Tenancies Act 1986; Mexted v Nola Mexted Family Trust [2021] NZTT Hamilton 4300218.
I have considered the Tenant’s application in accordance with Residential Tenancies Act 1986 as it is my job to do. I have endeavoured to consider the Landlord’s views too, wherever possible. Were the Landlord’s Grounds for Termination Valid?
The Applicants claim the landlord has breached their obligations under section 60AA.
Under s 60AA of the Residential Tenancies Act 1986 a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00: s 60AA and Schedule 1A Residential Tenancies Act 1986.
The Applicants claim the Landlord’s lack of evidence to prove that extensive renovations are planned for the property, coupled with [Tenant 1]'s history of carrying out improvements while living in the property, mean the Landlord’s 90- day notice of 16 May 2023 does not meet the requirements of s 51(2)(f) RTA.
I summarise the Applicants’ submissions below: a. According to section 51 of the RTA (Residential Tenancies Act), a landlord can terminate a periodic tenancy by giving at least 90 days' notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out, and it would not be reasonably practicable for the tenant to remain during the work. b. “Reasonably practicable” is not defined in the RTA, but it can be interpreted based on the Health and Safety at Work Act 2015, considering hazards and risks associated with the renovations. c. “Extensive renovations” refer to repairs or rebuilding that covers a large physical area, but the term is not explicitly defined in the RTA. d. [Tenant 1] had paid below-market rent in exchange for improving the property to an acceptable standard. e. [Tenant 1] has been living in the property since February 2022 and has undertaken the improvements himself. f. [Tenant 1] asserts that it is reasonably practical for him to stay in the property, as he has already lived there for fifteen months while making improvements. g. The Trust has not provided evidence of material steps to be taken within 90 days after the termination date. h. [Tenant 1] argues that the majority of the extensive improvements have already been carried out by himself, and any remaining work would not make it unreasonably practicable for him to remain in the tenancy.
The Landlord claimed they could enter the home to evaluate its condition, but they never once requested access, according to the Applicants.
The Applicants say, had the Landlord come to view the home, it would have found there was no renovations, of the kind contemplated in s 51(2)(f), to do.
From the Applicants’ evidence I infer the Landlord’s 90-day notice of 16 May 2023 was issued for reasons other than those it stipulates.
The timing of the notice and the change in the reasons provided for termination raise substantial doubts about the Landlord’s intentions.
The actions and behaviour of the Landlord, such as the break-in, intimidation, and subsequent derogatory comments via messaging apps and social media, do indicate the motivation behind the termination notice is malicious.
On the evidence available to me, most of which is unchallenged, the Landlord came to the premises and unlawfully gained entry. I am not clear on whether an assault has occurred. However, I have photographs of the Landlord’s whanau members inside the home, the Police have intervened, and I consider this was an act of intimidation by the Landlord towards the Applicants, with the aim of forcibly evicting them.
I note the Tribunal has previously made findings in respect of these matters as follows: 4 a. Between 26 and 28 February 2023, members of the Trust engaged in a series of actions against tenants [Tenant 1] and [Tenant 3] at a property. b. These actions included changing the locks, knocking on the doors and windows, turning off the power supply, forcibly entering the premises, and making repeated visits that led to police intervention and arrests. c. The tenants accused the Trust of unlawful entry, harassment, and interference with services. d. The Trust's actions were found to have breached several obligations under the Residential Tenancies Act (RTA). This included entering the property without consent, intentionally turning off the power, and repeatedly violating the tenants' right to reasonable peace, comfort, or privacy, which amounted to harassment. e. A stay of proceedings had been in place, making the Trust's entry on 27 February unlawful. Even without the stay, the Trust's actions would have 4 [2023] NZTT 4529825 4468600 – 9 May 2023 (rehearing). breached the RTA, constituting an offense that carries a fine of up to $3,000.00. The nature and frequency of the Trust's visits were also deemed unreasonable, and the events were found to be distressing for the tenants.
At the hearing the Landlord acknowledged they gave the 90-day notice because they wanted the Applicants to vacate the premises.
The Landlord’s shifting grounds for termination, without substantial evidence to back up their claims, strongly imply that the termination notice has been issued without valid grounds under s 60AA RTA.
The 90-day notice is invalid.
The Landlord attempted to terminate the tenancy abruptly without valid reasons, and with ulterior motives. This lack of genuine grounds alone could justify damages for a first incident, but this in fact the second incident where they have been found to have given a notice without grounds. While Mr Smith and I did not reach the same conclusion regarding the Landlord’s notice of 20 October 2022, 5 I have awarded exemplary damages based on this being a second infraction because the Landlord has proceeded with brazen disregard for the Applicant’s rights despite the abundance of caution it has received.
The retaliatory characteristics of the 16 May 2023 notice further increases the need for a higher award.
The fact that the tenants were upset by the notice and that the Landlord has persisted in a deliberate course of action to frustrate the tenancy adds to the severity of the Landlord’s conduct.
Recognising the importance of landlords adhering to their obligations and not ending tenancies without just cause exemplary damages of $3,500.00 have been awarded.

Was the 90-day notice of 16 May 2023 retaliatory?

For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord: s 54(1) Residential Tenancies Act 1986.
The act of issuing a retaliatory notice is unlawful, and the Tribunal has the authority to award exemplary damages for each unlawful act, up to a maximum of $6,500.00. 5 In my determination of 19 January 2023, I found the 90-day notice dated 20 October 2022 was not retaliatory.
The considerations that guide this decision include the intent behind the unlawful act, its effect, the interests of the other party involved, and the broader public interest: s 109(3) Residential Tenancies Act 1986.
In determining whether a notice is retaliatory, four key aspects must be considered: a. Compliance with s 51 of the Residential Tenancies Act 1986. b. Whether the application was made within a period of 28 working days, or if there is justification for extending this time limit. 6 c. Whether the Landlord's motivation was entirely or partially driven by the Tenant exercising a right under the tenancy agreement or any legal provision, or if it stemmed from a complaint against the landlord. d. If the above is true, a judgment must be made on whether the Landlord's issuance of the notice was justified, particularly if the Tenant's issue or complaint was frivolous or vexatious.
The way the law is written necessitates the Tribunal's initial determination of whether a notice complies with section 51. If the notice lacks valid grounds, it may already be deemed invalid for non-compliance with section 51, rendering further consideration of its retaliatory nature unnecessary and inapplicable: s 54(1)
In cases where there is only a brief interval between the Tenant exercising a right and the landlord serving a termination notice, it might lead to a robust inference that the landlord was motivated, at least in part, by the tenant asserting their rights. Here, the burden of proof (evidential, not legal) shifts to the landlord to demonstrate that a legitimate reason for the notice existed.
I have found the Landlord’s 90-day notice of 16 May 2023 is invalid and do not (arguably, cannot) proceed to consider whether it was retaliatory.
Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee. Concluding Remarks
For completeness, I have addressed the Applicants submissions.
The Applicants claim the termination is driven by dissatisfaction with a previous Tribunal Order 7 in which the Tribunal found the Landlord’s initial 90-day notice retaliatory and set it aside. That Tribunal Order is currently under appeal. 6 Realty House Whakatane Limited v Eschbank [2020] NZDC 16081. 7 [2023] NZTT 4529825 4468600 – 9 May 2023 (rehearing).
Unlawful Conduct by the Trust: The Landlord has engaged in unlawful behaviour, such as breaking into the property, assault, intimidation, trespassing, and making derogatory comments via messaging apps and on social media.
Motivation for Termination: The Landlord’s desire to terminate the tenancy appears to be motivated partly or wholly by the Applicants’ pursuit of justice, and the Landlord has changed the reason for termination three times within seven months, without proof.
Discrimination: The Landlord has been accused of unlawfully discriminating against the Applicants in contravention of the Human Rights Act 1993, with derogatory comments made about the Applicants, by virtue of their family status.
The Applicants draw a link between sections 54 and 12 of the Residential Tenancies Act 1986 as follows: a. The Applicant argues the termination notice is retaliatory in nature. They contend that the Landlord’s motivation for termination was driven partly or wholly by their exercise of their rights under the tenancy agreement and other Acts, including seeking justice for unlawful conduct by the Landlord. This motivation falls under the purview of s 54. b. The Applicants also allege that the Landlord has unlawfully discriminated against them, particularly under the Human Rights Act 1993. They link the termination of the tenancy to the Landlord’s dislike toward them, which dislike constituted discrimination on the basis of their family status, with evidence of derogatory comments made on social media about them, many of which refer to the parties family status. This kind of discrimination is prohibited under s 12 of the Residential Tenancies Act 1986. c. The Applicants claim the retaliatory notice and discrimination allegations are connected in that both factors have driven the Landlord’s decision to terminate their tenancy. The Landlord’s motivations for termination are not only due to the Applicants’ legal case but are also influenced by the Landlord’s discriminatory attitudes toward them and their status as ‘family’.
The Applicants acknowledge the breakdown in the relationship between the Landlords and them, particularly [Tenant 2], appears to have driven the termination.
It is not open to me to redetermine matters which have previously been determined by the Tribunal.
However, having reflected on the Applicant’s claim, I consider that, even if the Tribunal’s determination of 9 May 2023 was incorrect, the Landlord’s 90-day notice of 16 May 2023 was, at least in part, motivated by it, a determination which found the Applicants successful in their assertion of a right to apply to have the notice set aside.
I conclude the notice of 16 May 2023 was, at least in part, motivated by the Landlord’s discriminatory attitudes towards the Applicants, particularly [Tenant 2]. I have viewed the social media posts and messages sent to [Tenant 2]and consider the content is derogatory and hurtful. I do not consider this would succeed as a separate ground on its own, as it does not meet the requirements of s 54 without some positive assertion by the Applicants of their rights, but I do nevertheless consider it would be an aggravating feature of the Landlord’s conduct which would add to a claim for exemplary damages under s 109(3).
Consequently, even if the Landlord’s 90-day notice of 16 May 2023 was valid, I would almost certainly have found it to have been retaliatory and set it aside.

Tenancy Tribunal case 4597910 — Tenancy dispute at 16A Steeles Lane, Western Heights, Rotorua 3015

At a glance

Tenancy Tribunal case 4597910 — Tenancy dispute at 16A Steeles Lane, Western Heights, Rotorua 3015

At a glance

Award balance

Claims & awards

Order

Reasons

Who are the parties?

Was the 90-day notice of 16 May 2023 retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Who are the parties?

Was the 90-day notice of 16 May 2023 retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions