What was Tenancy Tribunal case 4717136 about?

The tribunal order states: The tenancy of [The tenant/s] at 47 Jecks Place, Avonside, Christchurch

How much money was awarded in case 4717136?

Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4717136?

The dispute type was not classified.

Where can I read the official tribunal order for case 4717136?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9650268-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4717136 about?

The tribunal order states: The tenancy of [The tenant/s] at 47 Jecks Place, Avonside, Christchurch

How much money was awarded in case 4717136?

Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4717136?

The dispute type was not classified.

Where can I read the official tribunal order for case 4717136?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9650268-Tenancy_Tribunal_Order.pdf.

47 Jecks Place, Avonside, Christchurch 8061 Tenancy Tribunal Case 4717136 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4717136 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Tenant to Landlord	$20.44

Claims and awards in Tenancy Tribunal application 4717136 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Tenant to Landlord	$20.44

Order

The tenancy of [The tenant/s] at 47 Jecks Place, Avonside, Christchurch 8061 is terminated, and possession is granted to Otautahi Community Housing Trust, at 11.59 am on Thursday 23 November 2023.
[The tenant/s] must pay Otautahi Community Housing Trust $20.44 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing on 10 November 2023.
The landlord was represented by Mr Olds. The tenant had 2 support people present.
The tenancy in issue is at 47 Jecks Place, Christchurch. This is a social housing complex consisting of a number of units.
The tenancy commenced on 2 July 2019.
The landlord has applied to the Tribunal to terminate the tenancy for a breach of the Residential Tenancies Act 1986 (“RTA”) that is not capable of remedy. The breach in this case being a breach of s.55(1)(c)(iv) RTA. The relevant subsection allows the Tribunal to terminate a tenancy where a tenant has assaulted or threatened to assault any occupier of any building of which the premises constitute a part.
The landlord says that the tenant resides at unit 47 of the housing complex.
The landlord alleges that the tenant has assaulted the occupier of unit 49 on Sunday 27 August 2023. Mr Minogue is an occupier of a building of which the tenant’s unit forms a part.
The landlord must prove all elements of the claim on the balance of probabilities; i.e., more probable than not.
In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: “It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it.”
This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: “[102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.”
Section 97(4) Residential Tenancies Act 1986 provides that: ... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually “.
It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities
The evidence of the assault proffered by the landlord came from Mr Minogue and two other witnesses.
Mr Minogue’s evidence was that on the morning of Sunday 27 August 2023 the tenant was making a great deal of noise. At approximately 8.00 am Mr Minogue went outside. He saw the tenant standing outside unit 49.The tenant told the tenant to stop making noise.
The tenant began to abuse Mr Minogue and then approached him. Mr Minogue walked back to his unit and entered. The Tenant followed Mr Minogue.
Mr Minogue was standing just inside the entrance to his unit. He says that the tenant pushed his way into the unit which resulted in Mr Minogue falling to the floor. The tenant got on top of Mr Minogue and punched him a number of times to the head with a closed fist. A neighbour arrived and told the tenant to get off Mr Minogue. The tenant did so and left.
The tenant has subsequently made a complaint to the Police. The matter had not been heard at the date of this hearing.
The second witness was a Mr Cahill. Mr Cahill had been inside unit 49 when the incident occurred. He said that he saw the tenant enter the unit and push Mr Minogue over and then punch Mr Minogue. Mr Cahill said that he then left the unit to try to get assistance.
The third witness was a fellow resident, Mr Kereopa. Mr Kereopa confirmed that that Mr Cahill approached him this morning trying to get assistance. Mr Kereopa said that he went to unit 49. When he got to the unit, he saw the tenant on the ground on top of Mr Minogue. He told the tenant to get off Mr Minogue. He said that he saw the tenant punch Mr Minogue twice more and then get up and leave the unit.
Evidence of the injuries suffered by Mr Minogue in this incident was provided in a number of photos.
The tenant agreed that there had been a verbal altercation between himself and Mr Minogue. He said that Mr Minogue was “fired up” and was verbally abusing him.
The tenant said that Mr Minogue started walking away in the direction of his unit. The tenant followed Mr Minogue to the doorway of Unit 49. He said that Mr Minogue struck the first blow by hitting the tenant on the head with a wooden knife block. He said that at that point he pushed Mr Minogue away in self-defence and that Mr Minogue fell to the ground. He said that he continued to punch Mr Minogue but only in self-defence as he thought that Mr Minogue would strike him again with the block.
The tenant accepted that he had not been sleeping well and that his medication was not correct. He said that he was “elevated” and “ agitated” at the time.
I have considered the evidence. None of the witnesses called by the landlord saw the tenant being hit by a wooden block. I find the evidence of Mr Kereopa in this issue compelling. He said that he did not see a wooden block. The same can be said of the evidence from Mr Cahill.
Evidence was provided by way of photos of the injuries suffered by Mr Minogue. The only evidence supporting the claim by the tenant was that of the tenant himself. I prefer the evidence of the three witnesses called by the landlord. I do not consider that the evidence accepted by the Tribunal would allow for a defence of self-defence. The tenant has approached Mr Minogue in his own house and assaulted him.
Having found that the tenant did assault Mr Minogue, I must consider whether due to the nature or extent of the breach, it would be inequitable to refuse to terminate (see s 56(1) Residential Tenancies Act 1986).
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant to remedy the breach, although the Tribunal may consider whether a warning should have been given when determining whether it would be inequitable to refuse to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours.
Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent.
The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: [46] Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). The breach irremediably arises when the specified failure occurs. [47] It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. The same may apply where there has been a persistent series of breaches, for example, where a tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours.
An assault of the type that I have found occurred in this matter is not capable of remedy.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the 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.
The evidence of the landlord was that there have been a number of issues previously with the tenant.
I am not aware of any persistent failure by the tenant after repeated warnings.
The breach was intentionally committed.
The conduct of the landlord is not relevant in this matter.
This was a serious breach. The tenant has been pushed over and punched to the head repeatedly. An aggravating feature is that this occurred in the tenants home. The tenant explained that he has a pace maker fitted and that he has become fearful of the tenant and no longer feels safe in his own home.
In the circumstances of this matter, I have no difficulty in finding that termination of the tenancy is a proportionate response.
The tenancy is terminated
The tenant has applied for name suppression. The tenant has not been wholly or substantially successful and the application for termination is dismissed. The landlord did not apply for name suppression.
As Otautahi Community Housing Trust has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4717136 — Tenancy dispute at 47 Jecks Place, Avonside, Christchurch 8061

At a glance

Tenancy Tribunal case 4717136 — Tenancy dispute at 47 Jecks Place, Avonside, Christchurch 8061

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions