Published tribunal order
Tenancy Tribunal case 4735712 — 14-day notice at Unit/Flat 9, 10 Weaver Place, Sockburn, Christchurch 8042
Decided 6 Dec 2023 · Published 6 Dec 2023 · Application 4735712
Mixed / unclear
- 14-day notice
Order
- The tenancy of Colin McIntyre at Unit/Flat 9, 10 Weaver Place, Sockburn, Christchurch 8042 is terminated, and possession is granted to Otautahi Community Housing Trust, at 11.59pm on Wednesday 13 December 2023.
- Colin McIntyre must pay Otautahi Community Housing Trust the sum of $20.44 immediately, being the Tribunal application fee.
Reasons
- Both parties attended the hearing. Mr Olds represented the landlord.
- The landlord applied to terminate the tenancy on the basis that Mr McIntyre assaulted Mr Walker who is also a resident of the Weaver Place complex. The landlord also claims that Mr McIntyre assaulted Mr Walker’s father who had been visiting Mr Walker.
Should the tenancy be terminated?
- The relevant law is found in section 55(1)(c) of the Residential Tenancies Act 1986 (the Act). That section provides that the Tribunal must make an order terminating the tenancy if the Tribunal is satisfied that the tenant has assaulted any of the persons listed in that section. The persons listed include a neighbour of the premises but do not include any person visiting a neighbour or other tenant. The alleged assault on Mr Walker’s father cannot therefore be the basis of the application for termination of Mr McIntyre’s tenancy.
- The assault on Mr Walker was said to occur on the evening of 3 September 2023. It was Mr Walker’s evidence that he was walking back to his unit after drinking at a friend’s house. He accepts that he was intoxicated. He said that he remembers seeing Mr McIntyre by a hedge that runs between his block of units and Mr McIntyre’s block and the next thing he remembers is waking up on the ground by his back door with blood on his face. The Police and an ambulance were called and he was taken to hospital where he remained overnight. He received injuries to his face.
- Mr McIntyre does not dispute that the incident occurred but he claims that Mr McIntyre called him a offensive name. He said that Mr McIntyre “tried to assault” him that he “tried to punch” him so he pushed him to the ground. He accepts that he then straddled Mr Walker and was sitting on top of him when he punched him.
- I heard evidence from the landlord’s witnesses, Mr Walker, Mr Miller and Mr Walker’s parents. Mr Miller is also a resident of the Weaver Place complex and witnessed the incident. Mr Walker’s parents gave evidence relating to the alleged assault on his father on 11 September 2023.
- Mr Miller said that he heard yelling coming from outside his unit so he looked outside his lounge window. He said that he could see Mr McIntyre following Mr Walker up the path behind Mr Walker’s unit. He said that they were yelling at each other. He said that Mr Walker then turned around to face Mr McIntyre and they grabbed each other. Mr McIntyre then pushed Mr Walker to the ground directly outside Mr Miller’s unit. Mr McIntyre straddled Mr Walker and was sitting on top of him when he punched Mr Walker with both fists on each side of his head five or six times. He said at “no time did I see [Mr Walker] throw any punches, it was all one sided.”
- Mr Schilling claims that Mr McIntyre had gone to the front of his unit and Mr Walker came towards him. He said that Mr McIntyre pushed him away but Mr Walker came again so Mr McIntyre tried to push him away again and they both ended up on the ground. He said that they were both scuffling on the ground and both were punching the other.
- I prefer the evidence of Mr Miller over that of Mr Schilling. Mr Miller was clear and consistent with his evidence and he had a clear view of what was occurring on his front lawn. On the other hand, Mr Schilling’s evidence was less clear. He accepts that he did not have a clear view of the incident and that he was only “pretty sure” that it happened as he described. It is also inconsistent with a statement given to a representative of the landlord who phoned him after the incident (the landlord claims that the conversation took place the day after the incident but Mr Schilling believes that it was later, maybe in October sometime). The representative who spoke to mr Schilling completed a file note of the conversation. The file note records that Mr Schilling said “he did not see much of the incident” and he “thinks it was a verbal incident that turned physical” but he could not give much further information or evidence than that. Mr Schilling accepts that the file note of the conversation is accurate but said that he has now had more time to reflect and remember the incident more clearly. However, time seldom makes the memory more accurate, and a more contemporaneous account is likely to be the more accurate recollection.
- Moreover, Mr McIntyre accepts that he punched Mr Walker a “couple of times” in the head/face. This means that the criteria for termination of the tenancy in section 55(1)(c) of the Act has been established. The only discretion I have to not terminate the tenancy when a tenant assaults a neighbour is found in section 55(2) of the Act. That section provides that the Tribunal may refuse to make an order terminating the tenancy if, but only if, it is satisfied that the breach has been remedied if it is the type of breach that can be remedied, the landlord has been compensated for any loss arising from the breach, and it is unlikely the tenant will commit any further breach of the same kind: section 55(2) of the Act.
- After carefully balancing all the evidence I find that this is not an appropriate case to exercise my discretion in Mr McIntyre’s favour. Of particular concern is that Mr McIntyre did not appear to accept that his behaviour, in particular the punching of another person in the head while that person is lying on the ground, is inappropriate. Without a recognition of his behaviour or a recognition that it is not acceptable there is in my view a high likelihood that he will commit a further breach of the same kind. Tribunal application fee
- The landlord has been successful in its claim and is therefore entitled to payment of the Tribunal application fee.