What was Tenancy Tribunal case 4598969 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 4598969?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4598969?

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

Where can I read the official tribunal order for case 4598969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9199066-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4598969 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 4598969?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4598969?

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

Where can I read the official tribunal order for case 4598969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9199066-Tribunal_Order_Redacted.pdf.

Unit/Flat 1, 207 Sunnynook Road, Wairau Valley, Auckland Tenancy Tribunal Case 4598969 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants names and identifying details.
[The tenant/s] must pay Maanasa Magatala $125.16, being outstanding water for the month of June 2023.
The landlord’s application for termination is dismissed.

Reasons

Both parties attended the hearing. Jagadiswar Magatala attended as agent for the landlord. [The tenant/s] attended for both tenants.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations and seeks payment for outstanding water rates.
The tenant has filed a cross-application which, as I explained to her at the hearing, was not actually necessary because essentially the cross-application is her defence to the landlord’s claim for termination. The cross-application is therefore withdrawn. Proceedings in the Tribunal
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. Background
In short, the landlord has applied for termination because one of the tenants was arrested on 31 May 2023.
The landlord says that because one of the tenants was using the premises for an unlawful purpose, he wants the other tenant and her children to leave.
The tenant who was arrested has been in custody since that time. He has not returned to the premises.
There is no evidence of any involvement in unlawful activity by the remaining tenant.
The landlord referred in general terms to other neighbours being “scared” about the situation.
None of the neighbours were called as witnesses in the hearing.
The landlord provided a series of text message from one of the neighbours which he received around the time police executed a search warrant at the property (on 31 May 2023), and again in early and mid-June.
Nothing in those text messages suggested that the neighbour in question was scared. The text messages rather referred to the neighbour’s desire for the landlord to “get rid” of the tenants. The tone reflected a wish not to have “that sort of behaviour” in the neighbourhood.
The landlord said that on the day police attended the property, another neighbour was stopped by police and asked to get out of their vehicle. The landlord said that they found this intimidating.
No further information from any other neighbour was provided and as noted above no neighbours were called to give evidence to support the suggestion that they are “scared”.
Rather, the landlord indicated more of a general sense of unease and a belief that because there had been unlawful activity at the premises the remaining tenant should simply not be allowed to stay.
The tenant says that she was very shocked when the police turned up at their house. It was hugely stressful and humiliating for her; she was made to stand outside with her children while police executed the search warrant.
Subsequently, the tenant said that police have cleared her of any involvement in any unlawful activity. She has not been arrested or charged. She had no knowledge of the items found by police. Those items were all located in a detached garage on the property which I am advised is accessible by walking down a path outside the house. Nothing of concern was located in the main house.

Should the tenancy be terminated?

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. See section 56(1) Residential Tenancies Act 1986 (“the Act”).
There is no dispute that a tenant must not use the premises, or permit the premises to be used, for any unlawful purpose. See section 40(2)(b) of the Act.
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.
The landlord accepted that he had not served a breach notice on the tenants.
There is therefore no basis to terminate under section 56(1)(b) of the Act.
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.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
In this case, the landlord has not persuaded me that this is a breach incapable of remedy. Being arrested is of course a serious matter but there is no evidence of a continuing breach, nor that the breach is something that “cannot be undone”.
Moreover, the District Court has stated 1 that factors which are relevant to whether it would be inequitable to refuse to terminate the tenancy include: a. The history of the tenancy b. Whether there has been a persistent failure after repeated warnings c. Whether the history of breaches was such that it was unlikely the tenant would comply with their obligations in future d. Whether the breach was inadvertent or deliberately committed e. The conduct of the landlord f. The gravity of the breach g. Whether termination is a proportionate response to the breach.
Taking those factors into account, I find as follows. a. There is no evidence of any concerns in relation to the tenancy prior to the events of 31 May 2023 b. There is no evidence of any ongoing breaches, or any warnings given by the landlord c. There is no evidence of previous breaches and no evidence that the remaining tenant is unlikely to comply with her obligations in future d. While of course respecting the other tenant’s right to the presumption of innocence I accept that if proven the breach could only have been deliberate and not inadvertent e. There is no evidence of bad conduct by the landlord f. I accept that the gravity of the breach was serious g. Stepping back and looking at things in the round, particularly the fact that the person involved in the unlawful activity is no longer residing at the premises, the landlord has not satisfied me that termination is a proportionate response to the breach.
Whatever unlawful activity may or may not have occurred at the premises there is no suggestion that it has caused any damage to the property or indeed involved use of the property at all, other than for storage of items in the garage. 1 Huff v City Central Property Management [2020] NZDC 19229
I accept that the landlord may have come under some pressure from neighbours to “get rid” of the tenants.
However, the reality is that we all have neighbours, good and bad, and unless the tenants are engaging in specific behaviours towards the neighbours that would provide a basis for termination, the neighbours wishes are not relevant to my determination.
A generalised desire to have the tenants leave will not suffice.
For these reasons, the landlord has not satisfied me that it would be inequitable to refuse to terminate the tenancy.
The landlord’s application to terminate is therefore dismissed. Water
The landlord also claimed for outstanding water.
The landlord provided two Watercare invoices, one dated 22 May 2023 and the other dated 28 June 2023.
There was no ledger to record what had or had not been paid but the tenant accepted that she had not paid the most recent bill.
The problem here is that the landlord has been requiring the tenant to pay the Watercare bill directly and “reimbursing” her for fixed costs. He has not kept a ledger recording the tenant’s portion of the bill for each month and payments made against those costs.
Because of that it is very difficult to work out from only two invoices what amount is owing in total.
Today, I am satisfied that the landlord has established the tenant is liable for $125.16 for water consumption for the 28 June invoice, which the tenant accepts has not been paid.
I cannot be satisfied what amounts might be owing on earlier invoices. Some payments are recorded for the May invoice, but it is not possible to reconcile what might still be owing given that the invoice total includes costs which are the responsibility of the landlord.
I have advised both parties that it is for the landlord to pay the Watercare invoice and he can seek payment of the usage costs from the tenant. Fixed costs and paper bill charges are the responsibility of the landlord.
I therefore order the tenants to pay $125.16 to the landlord and I leave it to the parties to work out what other monies might be outstanding. Other Matters
The landlord sought to raise issues relating to rent arrears at the hearing. However, the landlord’s claim had not been amended prior to the hearing to include an application for arrears or for termination on that basis.
It was therefore not possible for me to deal with that issue today.
I understand from the tenant that there have been significant issues for her since her partner has been in custody. In particular, her partner had been responsible for managing money and dealing with rent and bills. She has sought the assistance of a financial and budgeting advisor and is trying to obtain assistance from WINZ.
I have made it clear to the tenant that this is a matter of urgency, and she must ensure that rent is paid every week without fail and should seek assistance to clear the arrears. I can see from the rent summary provided that no issues occurred until her partner was arrested, and I accept that this has been a big adjustment for her.
Nevertheless, the landlord is entitled to rent. Should the landlord make a further application for termination on the basis of rent arrears, there is a likelihood that the tenancy would be terminated if the arrears are not cleared promptly.
The tenant did point out that the rent summary was inaccurate because it did not record the two weeks’ rent paid in advance of the tenancy commencing. I have advised the landlord that the summary must reflect those payments and so the summary does need to be corrected.
However, as noted, this is not something that I can make any orders about today. Suppression and Filing Fee
The landlord has not succeeded in their claim, so I make no orders in respect of the filing fee. The tenant did not need to file a cross-application so she will bear the cost of that unnecessary filing fee.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
In this case, the tenants have been successful in defending themselves against the landlord’s claim. As there are no countervailing reasons not to do so, I therefore grant suppression of the tenants’ names and identifying details.
The landlord has not succeeded in the proceedings and did not provide justification for the Tribunal to order suppression of their name or identifying details. J R Smith 19 July 2023

Tenancy Tribunal case 4598969 — Rent arrears at Unit/Flat 1, 207 Sunnynook Road, Wairau Valley, Auckland

At a glance

Tenancy Tribunal case 4598969 — Rent arrears at Unit/Flat 1, 207 Sunnynook Road, Wairau Valley, Auckland

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions