What was the outcome of Tenancy Tribunal case 4745489?

The tribunal order states: The tenancy of Palepa Lemau and Fetaiaimauso Taiivao at Unit/Flat 2, 15 James

How much money was awarded in case 4745489?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4745489?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4745489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9848620-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4745489?

The tribunal order states: The tenancy of Palepa Lemau and Fetaiaimauso Taiivao at Unit/Flat 2, 15 James

How much money was awarded in case 4745489?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4745489?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4745489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9848620-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 15 James Street, Victoria, Rotorua 3010 Tenancy Tribunal Case 4745489 — 14-day notice

Order

The tenancy of Palepa Lemau and Fetaiaimauso Taiivao at Unit/Flat 2, 15 James Street, Victoria, Rotorua 3010 is terminated, and possession is granted to J C Realty Limited As Agent For Happy Life Trust C/- Jay Kurosawa Happy Life Trust immediately.

Reasons

The Tribunal must consider an application filed by the landlord seeking a termination of the tenancy on the grounds of assault or threat to assault.
Both parties appeared at the hearing today.

BACKGROUND

During the course of the tenancy, conflict has arisen between the tenant and a neighbour, both sharing the same landlord. That appears to have culminated in an episode in November 2023, from which the neighbour has alleged that she was assaulted by the tenant. It is from that episode that the landlord now seeks to have the tenancy terminated.
The neighbour has described the events by email to the landlord as follows: Breakdown on what happened: I have attached photos of my next from the aftermath. I [neighbour] make the following statement and it to be 100% true. At 11pm Friday night 17/11/23 neighbors were outside my bedroom window talking extremely loud, I had asked them twice to tone it down a bit as I had work early Saturday morning and needed sleep. They ignored me so I wrote a polite note asking to tone it down and to be considerate otherwise I would ring noise control. Upon them reading the note on the window they started to verbally abuse me calling me (please excuse my language) "motherfucker", "Asshole" and that I need to wipe my white ass with the note and that when the offender nexts sees me that she will punch me and that I should come outside and they would deal to me. This was also while they were banging on all my windows and doors. Noise control was then called and they attended and told the offenders to tone it down and they still verbally abusing me calling me names and then said that I am a "terrible person" because I rang noise control. Following that incident the next day (Saturday 18/11/23) I returned home at 6pm after visiting my auntie's house and finishing work. Upon me parking my vehicle and locking my car I walked to the back door from my car and when I turned the small corner where my back door was I was ambushed by the female offender with a plank of wood she took from my back yard. She then proceeded to push me into the glass back door as I couldn't unlock my door fast enough she then proceeded to grab the top of my hoodie by my neck and proceeded to pull my hoodie so forcibly it restricted my airways and I had trouble breathing and couldn't talk or scream while she was doing this. I managed to unlock my door and I tried to enter but she grabbed my arm causing a bruise to drag me outside I tried to pull back into my home where she then proceeded to enter my house with the plank of wood holding me and lifting the plank of wood towards my head. The only thing I could do in that time was to scream for my life in her face as loud as I could in hopes that someone would come over to help me. She then let go and went outside, I went to close my back door and to lock it she then proceeded to try and come back. I quickly locked my doors and rang 111 to report the assault. The following day (Sunday 19/11/23) the police arrived at my address to take my statement, photos for evidence and to arrest the female offender. Please also see attached photos of the aftermath of the assault as evidence. Please let me know if you require anything else.
As indicated above, the Police were involved, and I understand that the tenant has been charged, and is yet to appear before the criminal court.
The landlord has applied to the Tribunal for an order terminating the tenancy.
The tenant requested an interpreter to assist her in the hearing. There was a delay in getting the interpreter, but we did have an interpreter attend by telephone to assist the tenant. The tenant requested everything be interpreted, which it was.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court 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

LANDLORDS CASE

The landlord advised that there was a complaint received from the neighbour of being attacked by the tenant. The landlord confirmed that they are landlords for the neighbour also. The landlord seeks an order that the tenancy be terminated on the grounds of assault.

TENANTS CASE

The tenant opposes the application for termination.
The tenant states that on 17 November 2023 they parked in front of the house around 8 or 9 in their vehicle drinking. The tenant states that there was no music playing, they were discussing matters, and otherwise being quite. The neighbour came out and was drawing on a shopping bag, that was a notice for them to “shut up” or the council noise control would be called. Subsequently noise control did attend, which the tenant says has happened on previous occasions following the neighbours’ complaints.
The tenant states that the next day she went to find the neighbour to discuss the note. The tenant states that when the neighbour was trying to open her door, the neighbour was yelling at her (the tenant). The tenant says she just wanted to get the neighbours attention “so I grabbed her like on the arm” and she started yelling, but the tenant was otherwise trying to get the neighbour to talk, but the neighbour was “screaming”. The tenant disputes she grabbed the neighbour around the throat. The tenant says the neighbour was shouting that she should ‘go back to her country’. The tenant considers the neighbour has been racist toward her.
The tenant confirmed the police came to the premises the following day, and she was taken to the Police Station to make a statement. The tenant said the Police told her not to engage with the tenant, which she has complied with.
However in response to questions from myself, the tenant confirmed that she needs to go to court in relation to the Police complaint, which I take it to mean that she has been charged in relation to the incident.
I set out the neighbours complaint around the assault. The tenant disputes that she grabbed the tenants hoodie, maintaining that she only grabbed her arm.
The tenant agrees that she did pick up the piece of wood, but could not explain why she did that.

ANALYSIS

The question I must decide is whether the tenancy should be terminated on the grounds of an assault on the neighbour. For the reasons as I will now set out, I find it must be terminated, and a termination is ordered.
I begin by noting section 55 of the RTA, which is one of the termination provisions. This confirms that the Tribunal “shall” order termination of the tenancy when: (c) the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, any of the following persons: (i) ... (v) any neighbour of the premises or of any building of which the premises constitute a part.
I have carefully considered the statement from the neighbour and what the tenant said at the hearing. There is considerable consistency between what both parties said in terms of dates and run-ins between the two, but both parties have described the other as the primary aggressor. I cannot reconcile that difference, but it is largely not relevant.
What is relevant, is that both parties agree there was an event on Saturday 18 November 2023. At the very least the tenant agrees in her evidence that the following occurred: a. She went to the neighbours back door intending to engage with the neighbour. b. When the tenant approached the neighbour, she picked up a piece of wood she found. c. The tenant grabbed the neighbour by the arm. d. The neighbour was distressed.
Whether the description of the event provided by the neighbour or the tenant was the correct description, I have no reservation in concluding based on the tenants evidence, that either the tenant actually assaulted the neighbour, or she threaten to assault the neighbour.
In relation to a threat to assault, Justice Keane in the High Court commented in Collins v Housing New Zealand, High Court, 2004 CIV -409-717 Christchurch, that to threaten to assault means just what it says: it is an expression of intent to do harm to another person by use of force. The fact of the threat can be enough. Even under the criminal law, there is no need to intend to act on the threat, or to have the capacity to act on it; or that it be to, or be passed on to, the person to whom the threat relates. He also said that under the criminal law what must be proved is the intent that the threat be taken seriously by the person to whom it is made. How far that applies under the RTA is another question. However, the intent of section 55(1)(c) is to protect the classes of persons referred to such as the landlord’s agent and neighboring tenants. In this context, the fact of a threat is enough.
In this case I accept that the neighbour was probably terrified in relation to the incident. The tenant confirmed she was screaming, and that concern is expressed in the neighbours statement. It is difficult to escape a conclusion that the tenant having the piece of would on her at the time, would have been viewed as that being intended to represent a weapon.
Having made a finding that it is more likely than not that the tenant has assaulted or threatened to assault the neighbour, I must order that the tenancy be terminated under section 55. That is ordered to occur immediately.

Tenancy Tribunal case 4745489 — 14-day notice at Unit/Flat 2, 15 James Street, Victoria, Rotorua 3010

At a glance

Tenancy Tribunal case 4745489 — 14-day notice at Unit/Flat 2, 15 James Street, Victoria, Rotorua 3010

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CASE

TENANTS CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CASE

TENANTS CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions