What was Tenancy Tribunal case 4636170 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 4636170?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4636170?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4636170?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9442624-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4636170 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 4636170?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4636170?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4636170?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9442624-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4636170 — Boarding House

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Applicant / Respondent name and identifying details.
The application is declined for want of jurisdiction.

Reasons

The applicant and respondent appeared. A Mandarin interpreter assisted both parties.
In this case, the applicant answered an advertisement on a social media platform seeking to rent two rooms in a property belonging to the respondent for a period of one month, after which they planned to travel to the South Island. The advertisement has been produced. The applicant viewed the two rooms. The respondent then produced a handwritten document recording the terms of the agreement in Mandarin, the dialect of both parties. The interpreter has kindly translated the document which reads: “I received a deposit of $100 tonight. Total $560 including 2 weeks bond + rent. Total $660. Two weeks deposit $440 when exit rental”.
The document is dated 29 June 2023 and signed by the “Receiver”, who is the respondent.
After paying the deposit, the applicant states they were then advised by the respondent that only one room was in fact available. The applicant states that this was not suitable as they were going to be joined by their partner and young child and required the two rooms. The applicant stayed for 5 days and then left. The respondent has refused to return the “bond.”
On 21 July 2023, the applicant filed a claim with the Tribunal seeking return of the $440.00 bond.
Before dealing with the substantive claim the issue arises as to whether the Tribunal has jurisdiction.
The applicant submits that the payment of a “bond” brings the claim within the jurisdiction of the Tenancy Tribunal.
When determining whether the arrangement is excluded, the Tribunal will consider the substance of the agreement between the parties rather than the labels they have applied.
The starting point under section 4 of the Residential Tenancies Act 1986 (The Act”), is that the provisions of the Act will apply to all tenancies of residential premises unless excluded under Section 5(1)(a) – (y) of the Act.
Section 8 of the Act provides that, where the Act is excluded by sections 5 to 7, if the premises are used for residential purposes, the parties can contract back into some or all of the provisions of the Act.
The property has four bedrooms, two with ensuites, bathroom, open plan kitchen / lounge / dining room, and laundry. The respondent lives at the property, has exclusive use of one of the bedrooms, and offers the other rooms for short term rent. There is no dispute that the respondent and others staying at the property have shared use of the kitchen/ lounge / dining room, and laundry. Apart from the bedrooms, there are no other rooms in the property reserved exclusively for the use of any one occupant only.
Section 5(1)(n) RTA provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
A boarding house is defined in section 66B of the Act: “Boarding house means residential premises – containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
In the case of Musson v Dobrisek DC Lower Hutt, CIV 2006 – 032 – 36, 05 May 2006, the Court in dealing with the exclusion in section 5(1)(n) of the Act, held that “principally” referred to the main use of the premises.
In Musson v Dobrisek the Court went on to state at paragraph [41]: I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section [5(1)(n)] appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed-sitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord’s family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.
In Harding v Caroto [2021] HCNZ 1265, the Court in considering the application of section 5(1)(n) of the Act referred to Musson v Dobrisek, stating at paragraph [25] In Musson, the premises at issue comprised a dwelling with the landlord occupying one of the nine bedrooms. The Court considered the legal nature of the landlord’s relationship with the other occupants whom the landlord described as “flatmates.” The Court there described the character of a flatmate (in contrast to a tenant) in the following terms: ... a co-operative arrangement whereby, in a functional sense, all occupants are on [the] same footing in that they exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens. However, the legal position of people quite legitimately described as flatmates can vary considerably:
The owner may share occupation with others who pay him rent. The others may be tenants of the owner or mere licensees.
A tenant may hold the tenancy of the whole dwelling and arrange for others to share occupation with him or her. Again, the others may be subtenants or mere licensees of the head tenant. Conclusion
After considering the evidence, I am satisfied that the exclusion in section 5(1)(n) of the Act applies, and that the Tribunal does not have jurisdiction to hear the substantive claim.
The Tribunal has reached this conclusion based on the following: -The property is used principally as a place of residence by the respondent, -The property is not a boarding house, -The respondent shares the entire premises with the other occupants. -The respondent and the other occupants have at least equal rights in the use of the property, -There is no evidence that the parties have agreed to contract back into the provisions of the Act.
The application is declined for want of jurisdiction. Name suppression
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 facts of the substantive claim are still to be determined. In my view there are grounds to order suppression of the name and details of the applicant and respondent.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Applicant / Respondent name and identifying details.
The application is declined for want of jurisdiction.

Reasons

The applicant and respondent appeared. A Mandarin interpreter assisted both parties.
In this case, the applicant answered an advertisement on a social media platform seeking to rent two rooms in a property belonging to the respondent for a period of one month, after which they planned to travel to the South Island. The advertisement has been produced. The applicant viewed the two rooms. The respondent then produced a handwritten document recording the terms of the agreement in Mandarin, the dialect of both parties. The interpreter has kindly translated the document which reads: “I received a deposit of $100 tonight. Total $560 including 2 weeks bond + rent. Total $660. Two weeks deposit $440 when exit rental”.
The document is dated 29 June 2023 and signed by the “Receiver”, who is the respondent.
After paying the deposit, the applicant states they were then advised by the respondent that only one room was in fact available. The applicant states that this was not suitable as they were going to be joined by their partner and young child and required the two rooms. The applicant stayed for 5 days and then left. The respondent has refused to return the “bond.”
On 21 July 2023, the applicant filed a claim with the Tribunal seeking return of the $440.00 bond.
Before dealing with the substantive claim the issue arises as to whether the Tribunal has jurisdiction.
The applicant submits that the payment of a “bond” brings the claim within the jurisdiction of the Tenancy Tribunal.
When determining whether the arrangement is excluded, the Tribunal will consider the substance of the agreement between the parties rather than the labels they have applied.
The starting point under section 4 of the Residential Tenancies Act 1986 (The Act”), is that the provisions of the Act will apply to all tenancies of residential premises unless excluded under Section 5(1)(a) – (y) of the Act.
Section 8 of the Act provides that, where the Act is excluded by sections 5 to 7, if the premises are used for residential purposes, the parties can contract back into some or all of the provisions of the Act.
The property has four bedrooms, two with ensuites, bathroom, open plan kitchen / lounge / dining room, and laundry. The respondent lives at the property, has exclusive use of one of the bedrooms, and offers the other rooms for short term rent. There is no dispute that the respondent and others staying at the property have shared use of the kitchen/ lounge / dining room, and laundry. Apart from the bedrooms, there are no other rooms in the property reserved exclusively for the use of any one occupant only.
Section 5(1)(n) RTA provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
A boarding house is defined in section 66B of the Act: “Boarding house means residential premises – containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
In the case of Musson v Dobrisek DC Lower Hutt, CIV 2006 – 032 – 36, 05 May 2006, the Court in dealing with the exclusion in section 5(1)(n) of the Act, held that “principally” referred to the main use of the premises.
In Musson v Dobrisek the Court went on to state at paragraph [41]: I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section [5(1)(n)] appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed-sitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord’s family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.
In Harding v Caroto [2021] HCNZ 1265, the Court in considering the application of section 5(1)(n) of the Act referred to Musson v Dobrisek, stating at paragraph [25] In Musson, the premises at issue comprised a dwelling with the landlord occupying one of the nine bedrooms. The Court considered the legal nature of the landlord’s relationship with the other occupants whom the landlord described as “flatmates.” The Court there described the character of a flatmate (in contrast to a tenant) in the following terms: ... a co-operative arrangement whereby, in a functional sense, all occupants are on [the] same footing in that they exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens. However, the legal position of people quite legitimately described as flatmates can vary considerably:
The owner may share occupation with others who pay him rent. The others may be tenants of the owner or mere licensees.
A tenant may hold the tenancy of the whole dwelling and arrange for others to share occupation with him or her. Again, the others may be subtenants or mere licensees of the head tenant. Conclusion
After considering the evidence, I am satisfied that the exclusion in section 5(1)(n) of the Act applies, and that the Tribunal does not have jurisdiction to hear the substantive claim.
The Tribunal has reached this conclusion based on the following: -The property is used principally as a place of residence by the respondent, -The property is not a boarding house, -The respondent shares the entire premises with the other occupants. -The respondent and the other occupants have at least equal rights in the use of the property, -There is no evidence that the parties have agreed to contract back into the provisions of the Act.
The application is declined for want of jurisdiction. Name suppression
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 facts of the substantive claim are still to be determined. In my view there are grounds to order suppression of the name and details of the applicant and respondent.

Tenancy Tribunal case 4636170 — Boarding House

At a glance

Tenancy Tribunal case 4636170 — Boarding House

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions