Published tribunal order
Tenancy Tribunal case 4752293 — Rent arrears at 18G Forth Street, Dunedin 9016
Decided 3 Aug 2026 · Published 3 Aug 2026 · Application 4752293
- Rent arrears
Order
- [The tenant/s] tenant/s], [The tenant/s] tenant/s], [The tenant/s] tenant/s], [The tenant/s] tenant/s], [The tenant/s] tenant/s] and [The tenant/s] tenant/s] must pay Cutlers Limited - as agent for Bevan Wong and [The tenant/s] landlord/s] $4,803.30 calculated as shown in the table below.
- The tenants’ request for name suppression is refused.
Reasons
- All parties attended the hearing which was conducted by video conference. Mr Cutler represented the landlords.
- The landlords have applied for rent arrears. The tenants dispute the claim on the basis that the landlords agreed that they could end the fixed term tenancy early and they have paid the rent due to the agreed termination date.
- Because this was a fixed term tenancy, the tenants have the burden of proving that they are not liable to pay rent to the end of the term. Background
- This was a fixed term tenancy of a student flat for one year ending on 30 December 2023.
- In June 2023 the landlords proposed that the tenants could end the tenancy early to enable the landlords to carry out renovation work. There was reference to renovating the bathroom and to painting work.
- The tenants did not take the landlords up on that proposal and subsequently the parties agreed that the landlords could carry out renovation of the bathroom with the tenants in occupation. The parties agreed a rent rebate for the duration of the work. The work was carried out between 18 September and13 October.
- On 7 September, some of the tenants met with the property manager, Ms Seaton, at the premises and, according to the tenants, there was a discussion about ending the tenancy early to allow the landlord to carry out further renovation work. There was no discussion about an end date at that time.
- On 22 September Ms Seaton emailed the tenants and said that their belongings would need to be removed from the flat “by the end of the lease”. I note that at the time, the only certain end date of the tenancy was 30 December.
- There was a further meeting with Ms Seaton at the premises in mid to late October. All the tenants were present and according to them, Ms Seaton agreed that the tenants could end the tenancy early if it allowed enough time for the further renovation work to be completed. The tenants said the two tenants who were not present at the meeting on 7 September were anxious for Ms Seaton to confirm that they would be able to end the tenancy early and she so confirmed.
- The District Court order records that the tenants said that they confirmed to Ms Seaton that the last of them would vacate on 20 November and that Ms Seaton confirmed that she would provide an amended agreement so that “the tenants Name suppression would be able to end their lease”. No such agreement was provided, and the tenants did not follow it up.
- Between the two meetings, two of the tenants signed up for another tenancy beginning on 20 November. The other tenants subsequently made other arrangements for their accommodation.
- On 10 November Ms Seaton sent the tenants an email referring to the tenants vacating the flat on 20 November and mentioning the end of tenancy arrangements.
- On 14 November one of the tenants texted Ms Seaton and sought confirmation that they could stop paying their rent. She responded by telling them that they needed to keep paying their rent to 30 December. She apologised for the “confusion”.
- The tenant then messaged her and said, “we were all of the understanding that we were going to move out and end our tenancy early so that the maintenance could be completed”.
- The tenants did not pay any rent for the period beyond 20 November and the landlords applied to the Tribunal for rent arrears. The tenants made their own application claiming the bond.
- The Tribunal dismissed the landlords’ application and gave several reasons for doing so. They included that when the landlords wrote to the tenants about vacating the premises early (which apparently is not uncommon for student tenancies) they did not make it clear to the tenants that they would be liable for rent until the contractual end date of the tenancy.
- Another reason was that the landlords were, by their conduct, estopped (prevented) from denying that the tenancy had been terminated early.
- The landlords sought a rehearing and appealed to the District Court. The rehearing was dismissed but the appeal was successful to the extent that all but one of the reasons given by the Tribunal for dismissing the rent claim were rejected. The Court decided that the remaining reason, based on estoppel, was arguable but that the Tribunal had not explored it sufficiently. The Court therefore referred it back to the Tribunal to be reheard on that issue alone. The Issue
- The Tribunal and the Court identified the issue as being whether the landlords had led the tenants to believe that they could end the tenancy early and that the tenants had acted to their detriment in reliance on that to the extent that it would be unconscionable for them deny that the tenancy was validly terminated early. Name suppression
- The tenants’ evidence in substance is that there was an agreement between the parties that they could end the tenancy early on a date to be agreed and the parties subsequently agreed on a date, namely 20 November.
- It would appear then that the tenants’ case is that there was a concluded agreement to end the tenancy on 20 November. The primary issue then is, was there such an agreement? If there was, there is no need to consider equitable principles such as estoppel.
- Because it is the tenants who assert the existence of the agreement, the onus is on them to prove its existence to the required standard, namely on the balance of probabilities. That means proving that the facts relied on for the agreement are more likely than not to be true. Discussion and Decision
- The landlords have pointed out that there is no written evidence of an agreement to end the tenancy early. The tenancy agreement was in writing, and they say that any agreement to vary it should also be in writing. But a written agreement can be varied orally. Even a written agreement that requires any variation to be in writing can be varied orally because parties are free to agree to vary an agreement, including a term requiring a variation to be in writing. An oral agreement can also be treated as a collateral agreement. If all else fails, equity can intervene such as with estoppel. The difficulty with oral agreements often lies in proving them and that is the case here.
- My understanding of the tenants’ evidence is that there needed to be an agreement on the end date before there was a binding agreement. The first meeting resulted in an agreement in principle that the tenancy could be ended early, but that was subject to further agreement on when it would end. That makes perfect sense. One of the requirements of a binding agreement is certainty of the terms of the agreement. The term (meaning the period) of a tenancy agreement is an essential term and so a change of the end date of a fixed term tenancy is an essential term of an agreement to vary the agreement.
- I note as well that only three of the tenants were present at the first meeting. For there to be a binding agreement to vary the terms of the agreement, all parties and would need to agree on the variation and to communicate their agreement to the other parties. Those conditions were not met in relation to the first meeting. It follows that even aside from the uncertainty about the end date, the first meeting cannot have resulted in any binding agreement. Everything then depends on the second meeting.
- I have considered all the written communications between the parties, and I find nothing in them that lends support to the tenants’ case. They are consistent with the common practice of landlords and tenants of student flats agreeing to deal Name suppression with the usual end of tenancy arrangements early when the tenants have vacated at the end of the academic year.
- The tenants point to Ms Seaton’s apology about the confusion, but I don’t see that any inference favourable to the tenants can be drawn from that. It is not clear whose confusion she was referring to and saying sorry is not necessarily an admission of fault.
- What is left is the word of the tenants against the word of Ms Seaton. She did not give evidence before me, but in the original Tribunal hearing, she denied agreeing anything with the tenants regarding early termination of the tenancy. It is five against one, but obviously the tenants are all parties who stand to benefit if their evidence is accepted. It is not, therefore, an outcome to be determined by weight of numbers.
- A written agreement can be varied orally but that said, where an agreement has been concluded in writing, there is an expectation that any variation would at the least be confirmed in writing. That is especially so when the variation is of an essential term that would significantly affect the rights and obligations of the parties. A decision maker in these circumstances should not lightly find a variation proved without persuasive evidence.
- The tenants in this case have not provided evidence to persuade me that there was a concluded agreement to vary the end of tenancy date. Indeed, in my view, the evidence points to the contrary.
- The tenants’ evidence is that at the second meeting, Ms Seaton agreed that if they vacated on 20 November, that would give the landlord enough time for the further renovation work to be completed. Bearing in mind that this was not a planned meeting to discuss the end of the tenancy, how would Ms Seaton know that it would give the landlords enough time? Surely that would depend on knowledge that only the landlords would have. In my view, Ms Seaton would have needed to take instructions from the landlords before she agreed to a new end date, and she would not have agreed anything before she had them.
- I also question whether Ms Seaton had the required authority to agree to a new end date. She was the landlords’ agent and there is no evidence that she had actual authority to agree to it. For the reason I have just given, it is unlikely that she had it. The tenants would then have to rely on her having apparent authority to agree to it. Such authority must be conferred on her by the landlords’ conduct. Appointing Cutlers as their agent does not necessarily confer on them authority to do all things in relation to the tenancy. In the context of the second meeting, it should have been obvious to the tenants that Ms Seaton would need to obtain the landlords’ instructions before agreeing to alter the contractual end date. Therefore, I do not accept that she had apparent authority to end the tenancy early. Name suppression
- There is then the issue of the written variation. According to the tenants, Ms Seaton agreed to provide it, but she did not do so. The tenants did not follow up on it. Why not? Their evidence was that at least two of them were anxious to have confirmation as to when the tenancy would end. Yet no one thought to ask Ms Seaton for the promised agreement, and no one thought to send her a message to confirm the alleged agreement.
- There is also the fact that in the tenants’ messages immediately after Ms Seaton informed them that they would need to pay rent to 30 December, they do not say that there was an agreement to end the tenancy on 20 November. Instead, they sent and sought to rely on the June letter from Ms Seaton proposing an early end to the tenancy. Indeed, in one email they asked what would be needed to end the tenancy early? I do not find any of this to be consistent with the tenants’ narrative in this case.
- As to the estoppel issue, if Ms Seaton agreed at the first meeting that the tenants could move out early on a date to be agreed, that was not a clear and unambiguous representation. It was subject to the parties’ further agreement and so it was not something that the tenants could reasonably rely on.
- The only significant detriment that the tenants rely on is the action of two of them signing up for another tenancy. The others moved to other accommodation but there was no evidence that there was any significant detriment involved in doing so. Tenants moving out of student flats early is common. The sign-up occurred before, as the tenants’ assert, there was any suggestion of a confirmed end date. Therefore, the two tenants did not act in reliance on the second alleged representation which is the only one that they could reasonably have relied upon (assuming that it could be proved).
- The landlords entered the premises after the tenants had vacated to carry out some work. They did not give notice or obtain the tenants’ consent. I don’t think that assists the tenants. They had fully vacated by then and no doubt the landlords believed that the tenants would have no objection. It does not add any significant weight to the tenants’ case.
- For these reasons, the tenants have failed to prove that they are not liable to pay the rent to the end of the contractually agreed term of the tenancy. It follows that I must award the landlords the unpaid rent. There is no dispute that it amounts to $4,782.86. The landlords are also entitled to the filing fee. Bond
- The tenants received the bond in the sum of $2,664 following the Tribunal’s original order. Name suppression Suppression
- The tenants have not succeeded, and I see no other reason for name suppression. I note as well that there was no name suppression given in the District Court.