What was Tenancy Tribunal case 4634210 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 4634210?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4634210?

The dispute type was not classified.

Where can I read the official tribunal order for case 4634210?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9467025-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4634210 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 4634210?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4634210?

The dispute type was not classified.

Where can I read the official tribunal order for case 4634210?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9467025-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4634210 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant/Landlord name and identifying details.
The application is dismissed.

Reasons

[The landlord’s representative] appeared in person for the landlord. [The tenant’s representative] appeared for the tenant by telephone.
The tenancy commenced on 19 May 2023 and was for a fixed term. After the commencement of the tenancy the tenant experienced a change in personal circumstances which involved their moving away from the area. On 13 June 2023, the parties agreed to bring the fixed term to an end. As is common in these cases the parties agreed terms ending the tenancy which reflect the rights and obligations of the parties consistent with the provisions of the Residential Tenancies Act 1986 (The “Act”). These terms usually state that the tenant remains liable for the rent until a new tenancy agreement is entered into, and that the landlord is entitled to recover reasonable costs associated with re letting the property. The costs of re letting were $395.00, which are considered reasonable and not a point of contention. On 14 July 2023, thirty-two days after the agreement to end the fixed term the tenant vacated the property. A further thirty- nine days elapsed before the landlord entered into a new agreement on 21 August 2023.
I have been informed that the tenant has paid the rent up to 21 August 2023, the costs of re letting, and that the bond was refunded to the tenant in full.
The tenant claims that the landlord has failed to mitigate loss by finding a replacement tenant as soon as reasonably possible.
The onus of proving these claims rests with the tenant. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the landlord has failed to take all reasonable steps to mitigate any loss arising from a breach of the agreement or provisions of the Act.
A fixed term tenancy cannot be terminated with notice. Under a fixed term tenancy, unless otherwise agreed or by order of the Tribunal, the tenant remains liable for rent until the end of the fixed term. Section 50(1)(d) of the Act, provides that parties may agree to end a tenancy in writing. The Act allows a landlord to then seek reasonable reletting costs. Agreements to end fixed term tenancies typically contain terms that the tenant will remain liable for rent until the end of the tenancy and accept reasonable costs of re letting. Both these clauses align with the law.
Section 43B of the Act provides that a tenant may, with the prior written consent of the landlord assign the tenancy. If the tenant makes such a request, they must do so in writing, and include the details of any proposed assignee. The landlord may attach reasonable conditions on the assignment. The landlord must respond to the request within a reasonable time frame and cannot unreasonably withhold consent or impose unreasonable conditions. Consent will not be taken as having been withheld unreasonably, if upon receipt of the request to assign, the landlord instead offers to accept surrender of the tenancy on reasonable terms.
There is no evidence that the tenant made a written request to reassign the tenancy under section 43B. In this case the landlord agreed terms to end the tenancy, and on what I consider to be reasonable terms.
Pursuant to section 66(1) of the Act, the Tribunal may reduce a fixed term tenancy where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced. However, the tenant has not made such an application in this case.
Section 49 of the Act states: Where a party to a tenancy agreement breaches any provision of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The tenant states that the time taken to find a replacement tenant was unreasonable. There is no dispute that following the agreement on 13 June 2023 the tenant provided the landlord with details of three prospective tenants they considered suitable candidates. To their surprise each was rejected, and the tenant does not know why. Additionally, the tenant states that several people viewed the property before they vacated on 14 July 2023. Given the high demand for properties in the area the tenant cannot understand why it took the landlord 5 and a half weeks to find a suitable replacement when at most it should have taken no more than three.
The tenant also suspects that the landlord was not passing all the applications onto the owner, whom they had been advised by the property manager would ultimately decide.
[The landlord’s representative] states that upon receiving an application their standard practice is to complete reference, credit, and other background checks. In this case, the landlord states they then provided the owner with all the applications made, including ones they did not necessarily recommend. All but one applicant, an existing tenant of the landlord, was deemed unsuitable. The new tenant gave three weeks’ notice to end their existing tenancy before taking up the new tenancy on 22 August 2023. Decision
As stated, the onus is on the tenant to establish that the landlord has failed to take all reasonable steps to mitigate any loss. The landlord is entitled to exercise care and due diligence when entering into tenancy agreements. After hearing from both parties and considering the evidence produced by the tenant, I cannot be satisfied, to the required standard, that the landlord has failed to take all reasonable steps to mitigate their loss by finding a replacement tenant as soon as reasonably possible. The application is dismissed. Name suppression
Both parties seek name suppression.
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.
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 landlord has been wholly successful defending the claim and is granted name suppression. The tenant has applied for name suppression on two grounds: firstly, that publishing their name will affect their ability to find rental properties in the future, and secondly, based on the tenant’s health and well-being. The first ground does not justify a departure from the principle of open justice, but the second ground does. On the material before me, I am satisfied that the publishing of the tenant’s name would likely have a detrimental effect on the tenant’s emotional well-being. On this basis, I exercise the discretion in section 95A(4) and order suppression of the tenants name.

Reasons

[The landlord’s representative] appeared in person for the landlord. [The tenant’s representative] appeared for the tenant by telephone.

The tenancy commenced on 19 May 2023 and was for a fixed term. After the commencement of the tenancy the tenant experienced a change in personal circumstances which involved their moving away from the area. On 13 June 2023, the parties agreed to bring the fixed term to an end. As is common in these cases the parties agreed terms ending the tenancy which reflect the rights and obligations of the parties consistent with the provisions of the Residential Tenancies Act 1986 (The “Act”). These terms usually state that the tenant remains liable for the rent until a new tenancy agreement is entered into, and that the landlord is entitled to recover reasonable costs associated with re letting the property. The costs of re letting were $395.00, which are considered reasonable and not a point of contention. On 14 July 2023, thirty-two days after the agreement to end the fixed term the tenant vacated the property. A further thirty- nine days elapsed before the landlord entered into a new agreement on 21 August 2023.

I have been informed that the tenant has paid the rent up to 21 August 2023, the costs of re letting, and that the bond was refunded to the tenant in full.

The tenant claims that the landlord has failed to mitigate loss by finding a replacement tenant as soon as reasonably possible.

The onus of proving these claims rests with the tenant. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the landlord has failed to take all reasonable steps to mitigate any loss arising from a breach of the agreement or provisions of the Act.

A fixed term tenancy cannot be terminated with notice. Under a fixed term tenancy, unless otherwise agreed or by order of the Tribunal, the tenant remains liable for rent until the end of the fixed term. Section 50(1)(d) of the Act, provides that parties may agree to end a tenancy in writing. The Act allows a landlord to then seek reasonable reletting costs. Agreements to end fixed term tenancies typically contain terms that the tenant will remain liable for rent until the end of the tenancy and accept reasonable costs of re letting. Both these clauses align with the law.

Section 43B of the Act provides that a tenant may, with the prior written consent of the landlord assign the tenancy. If the tenant makes such a request, they must do so in writing, and include the details of any proposed assignee. The landlord may attach reasonable conditions on the assignment. The landlord must respond to the request within a reasonable time frame and cannot unreasonably withhold consent or impose unreasonable conditions. Consent will not be taken as having been withheld unreasonably, if upon receipt of the request to assign, the landlord instead offers to accept surrender of the tenancy on reasonable terms.

There is no evidence that the tenant made a written request to reassign the tenancy under section 43B. In this case the landlord agreed terms to end the tenancy, and on what I consider to be reasonable terms.

Pursuant to section 66(1) of the Act, the Tribunal may reduce a fixed term tenancy where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced. However, the tenant has not made such an application in this case.

Section 49 of the Act states: Where a party to a tenancy agreement breaches any provision of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.

The tenant states that the time taken to find a replacement tenant was unreasonable. There is no dispute that following the agreement on 13 June 2023 the tenant provided the landlord with details of three prospective tenants they considered suitable candidates. To their surprise each was rejected, and the tenant does not know why. Additionally, the tenant states that several people viewed the property before they vacated on 14 July 2023. Given the high demand for properties in the area the tenant cannot understand why it took the landlord 5 and a half weeks to find a suitable replacement when at most it should have taken no more than three.

The tenant also suspects that the landlord was not passing all the applications onto the owner, whom they had been advised by the property manager would ultimately decide.

[The landlord’s representative] states that upon receiving an application their standard practice is to complete reference, credit, and other background checks. In this case, the landlord states they then provided the owner with all the applications made, including ones they did not necessarily recommend. All but one applicant, an existing tenant of the landlord, was deemed unsuitable. The new tenant gave three weeks’ notice to end their existing tenancy before taking up the new tenancy on 22 August 2023. Decision

As stated, the onus is on the tenant to establish that the landlord has failed to take all reasonable steps to mitigate any loss. The landlord is entitled to exercise care and due diligence when entering into tenancy agreements. After hearing from both parties and considering the evidence produced by the tenant, I cannot be satisfied, to the required standard, that the landlord has failed to take all reasonable steps to mitigate their loss by finding a replacement tenant as soon as reasonably possible. The application is dismissed. Name suppression

Both parties seek name suppression.

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.

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 landlord has been wholly successful defending the claim and is granted name suppression. The tenant has applied for name suppression on two grounds: firstly, that publishing their name will affect their ability to find rental properties in the future, and secondly, based on the tenant’s health and well-being. The first ground does not justify a departure from the principle of open justice, but the second ground does. On the material before me, I am satisfied that the publishing of the tenant’s name would likely have a detrimental effect on the tenant’s emotional well-being. On this basis, I exercise the discretion in section 95A(4) and order suppression of the tenants name.

Tenancy Tribunal case 4634210 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4634210 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions