What was the outcome of Tenancy Tribunal case 4749029?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4749029?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4749029?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4749029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9958470-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4749029?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4749029?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4749029?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4749029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9958470-Tenancy_Tribunal_Order.pdf.

Room 3, 17 Warden Street, Opoho, Dunedin 9010 Tenancy Tribunal Case 4749029 — Exemplary damages

Order

No suppression orders apply around publication of this decision.
By way of declaration the Tribunal does not have jurisdiction to determine this application.

Reasons

Both parties attended the hearing with their respective advocate and lawyer, all by telephone.
Ms Hegglun has applied for compensation and exemplary damages as the result of renting premises from 18/2/2023 to 14/11/2023.
Ms Pashby’s lawyer sought an adjournment because he had only just been instructed to act in the matter.
Ms Hegglun’s advocate objected to the adjournment because of the length of time the dispute had been ongoing, the application having been made on 29/11/2023.
Before deciding on the question of an adjournment I need to determine whether the Tribunal has jurisdiction, because if it does not then an adjournment would be pointless.

Does the Tribunal have jurisdiction?

The Act does not apply under section 5(1)(n) 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 owner of the premises, or a member of the landlord’s or owner’s family.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36 His Honour Judge Broadmore when considering section 5(1)(n) noted that the issue was whether the premises were used principally as a place of residence by the landlord, and that the relevant question was not whether it was the landlord’s principal place of residence.
His Honour discussed the broad description of a flatmate arrangement as: By “flatmates” I understand a co-operative arrangement whereby, in a functional sense, all occupants are on [the] same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.
In Watson v Watson & Roo CIV 2010-009-2030 the Court emphasised when determining jurisdictional arguments that it was important to look at the full facts of the situation, decide the substance of the arrangement in place and avoid being diverted by labels that a party may attach to a particular arrangement.

Are the premises a boarding house?

For the exclusion to apply the premises must first not be a boarding house.
A boarding house means residential premises containing one or more boarding rooms and with facilities for communal use by tenants; and occupied or intended to be occupied by at least 6 tenants at any one time.
A boarding house tenancy means a residential tenancy in a boarding house that lasts for 28 days or more; where a tenant is granted exclusive right to occupy sleeping quarters and has the right to shared use of communal facilities.
I am satisfied the premises do not meet the definition of a boarding house because the evidence of the parties was that there were only two or three occupants in the premises during the nine months Ms Hegglun lived there.
The written agreement between the parties is not a boarding house tenancy agreement.

Is the Act excluded?

As the premises are not a boarding house, I must consider whether the premises continued to be used principally, that is predominantly, as a residence by the landlord’s daughter.
His Honour Judge Broadmore in Musson discussed that principally meant the "main use of the premises". He suggested that the question to be asked was "is the principal use of these premises as a place of residence of the landlord?"
I have carefully considered the evidence of the parties that Ms Pashby’s daughter has occupied the premises since it was purchased in 2021 and had continued to do so throughout the nine months Ms Hegglun lived there, the legislation and case law.
I am persuaded that the principal use of the premises by Ms Ashby’s daughter was as her place of residence and find the tenancy is excluded under section 5(1)(n)
No filing fee can be awarded because of the lack of jurisdiction.
For the same reason nor can the bond lodged with the Bond Centre be refunded.
Any dispute between the parties about the terms of the contract between them can be pursued in the Disputes Tribunal.

Order

No suppression orders apply around publication of this decision.
By way of declaration the Tribunal does not have jurisdiction to determine this application.

Reasons

Both parties attended the hearing with their respective advocate and lawyer, all by telephone.
Ms Hegglun has applied for compensation and exemplary damages as the result of renting premises from 18/2/2023 to 14/11/2023.
Ms Pashby’s lawyer sought an adjournment because he had only just been instructed to act in the matter.
Ms Hegglun’s advocate objected to the adjournment because of the length of time the dispute had been ongoing, the application having been made on 29/11/2023.
Before deciding on the question of an adjournment I need to determine whether the Tribunal has jurisdiction, because if it does not then an adjournment would be pointless.

Does the Tribunal have jurisdiction?

The Act does not apply under section 5(1)(n) 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 owner of the premises, or a member of the landlord’s or owner’s family.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36 His Honour Judge Broadmore when considering section 5(1)(n) noted that the issue was whether the premises were used principally as a place of residence by the landlord, and that the relevant question was not whether it was the landlord’s principal place of residence.
His Honour discussed the broad description of a flatmate arrangement as: By “flatmates” I understand a co-operative arrangement whereby, in a functional sense, all occupants are on [the] same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.
In Watson v Watson & Roo CIV 2010-009-2030 the Court emphasised when determining jurisdictional arguments that it was important to look at the full facts of the situation, decide the substance of the arrangement in place and avoid being diverted by labels that a party may attach to a particular arrangement.

Are the premises a boarding house?

For the exclusion to apply the premises must first not be a boarding house.
A boarding house means residential premises containing one or more boarding rooms and with facilities for communal use by tenants; and occupied or intended to be occupied by at least 6 tenants at any one time.
A boarding house tenancy means a residential tenancy in a boarding house that lasts for 28 days or more; where a tenant is granted exclusive right to occupy sleeping quarters and has the right to shared use of communal facilities.
I am satisfied the premises do not meet the definition of a boarding house because the evidence of the parties was that there were only two or three occupants in the premises during the nine months Ms Hegglun lived there.
The written agreement between the parties is not a boarding house tenancy agreement.

Is the Act excluded?

As the premises are not a boarding house, I must consider whether the premises continued to be used principally, that is predominantly, as a residence by the landlord’s daughter.
His Honour Judge Broadmore in Musson discussed that principally meant the "main use of the premises". He suggested that the question to be asked was "is the principal use of these premises as a place of residence of the landlord?"
I have carefully considered the evidence of the parties that Ms Pashby’s daughter has occupied the premises since it was purchased in 2021 and had continued to do so throughout the nine months Ms Hegglun lived there, the legislation and case law.
I am persuaded that the principal use of the premises by Ms Ashby’s daughter was as her place of residence and find the tenancy is excluded under section 5(1)(n)
No filing fee can be awarded because of the lack of jurisdiction.
For the same reason nor can the bond lodged with the Bond Centre be refunded.
Any dispute between the parties about the terms of the contract between them can be pursued in the Disputes Tribunal.

Tenancy Tribunal case 4749029 — Exemplary damages at Room 3, 17 Warden Street, Opoho, Dunedin 9010

At a glance

Tenancy Tribunal case 4749029 — Exemplary damages at Room 3, 17 Warden Street, Opoho, Dunedin 9010

At a glance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Are the premises a boarding house?

Is the Act excluded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Are the premises a boarding house?

Is the Act excluded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions