What was Tenancy Tribunal case 4773118 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4773118?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4773118?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 4773118?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10490311-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4773118 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4773118?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4773118?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 4773118?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10490311-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4773118 — 14-day notice

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name, any identifying details, and the address of the property.
The tenancy is terminated, and possession granted to the landlord at midnight on Monday 22 July 2024.
During the hearing, the landlord advised that despite seeking to terminate the tenancy they wished to support the tenant find alternate, more suitable, accommodation. Both M and the tenant are vulnerable people. I hope the landlord is able to fulfil their commitment to the tenant, as they have the resources and experience to do so.

Reasons

The tenancy commenced on 19 September 2022. On 21 December 2023, the landlord filed a claim to terminate the tenancy. The matter was scheduled initially scheduled for hearing on 14 February 2024, and then rescheduled to 08 March 2024, at the request of the landlord. After hearing from the parties, the Tribunal adjourned for the tenant to demonstrate their ability to fulfil their obligations under the Tenancy Agreement and the Act to the landlord and their neighbours. The matter was rescheduled and before the Tribunal again on 31 May 2024.
This decision is broken into two parts, the first hearing and adjournment of 08 March 2024, paragraphs [3] to [38], and the conclusion and ultimate finding of this Tribunal on 31 May 2024, paragraph [39] to [51]. 08 March 2024
The landlord is a social housing provider that provides accommodation to those with alcohol and drug and mental health issues.
[The tenancy supervisor], and [The property manager/s], appeared for the landlord. The tenant appeared and was supported by their case housing worker. The case housing worker is an employee of the landlord who assists the tenant maintain independent living.
On 21 December 2023, the landlord filed a claim for termination of the tenancy on the grounds that: (i)The tenant had on 21 December 2023 assaulted a neighbour, section 55(1)(c)(v) of the Residential Tenancies Act 1986 (The “Act”), (ii)The same assault was a breach incapable of remedy and that it would be inequitable to refuse to terminate the tenancy, section 56(1)(c) of the Act.
The matter was initially listed for hearing on 14 February 2024. The landlord was unable to attend, and the hearing was rescheduled to 08 March 2024.
On 28 February 2024, the landlord amended the application adding a further claim for termination on the grounds that the tenant had been issued with three notices for anti-social behaviour within a 90-day period, section 55A (2) of the Act.
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Act. Law Termination for anti-social behaviour
Under section 55A (2) of the Act, subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied: a) on 3 separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission, engaged in anti-social behaviour in connection with the tenancy; and b) on each occasion the landlord gave the tenant written notice— (i)describing clearly which specific behaviour was considered to be anti-social and (if known to the landlord) who engaged in it; and (ii)advising the tenant of the date, approximate time, and location of the behaviour; and (iii)stating how many other notices (if any) the landlord has given the tenant under this paragraph in connection with the same tenancy and the same 90-day period; and (iv)advising the tenant of the tenant’s right to make an application to the Tribunal challenging the notice and. c) the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.
The Act confirms that antisocial behaviour includes harassment or any act (whether intentional or not) that reasonably causes alarm, distress or nuisance that is more than minor. Termination for breach incapable of remedy
Under section 56(1)(c) of the Act the Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
In determining the exercise of the discretion in section 56(1)(c), the District Court in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, stated at [61]: [61] Factors which are relevant to whether it would be inequitable to refuse to terminate this tenancy include: The history of the tenancy. Whether there has been a persistent failure after repeated warnings. Whether the history of breaches was such that it was unlikely the tenant would comply with their obligations in the future. Whether the breach was inadvertent or deliberately committed. The conduct of the landlord. The gravity of the breach. Whether termination is a proportionate response to the breach. Termination for assault on neighbour
Section 55(1) of the Act provides that the Tribunal shall terminate a tenancy, if under sub section 55(1)(c)(v), it is satisfied that the tenant has assaulted or threatened to assault any occupier or neighbour of the premises.
Sub section 55(2) of the Act provides the Tribunal with a discretion to refuse to order termination under subsection (1) but only if,: ...it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies.
In McLeod v Housing New Zealand Ltd, High Court Auckland AP50 – SW01, 16 July 2001, the Court considered that the discretion in 55(2) was only available to the Tribunal if all three limbs were satisfied.
In the case of Collins v Housing New Zealand, High Court Christchurch, CIV – 2004 – 409 – 717, 2 July 2004, His Honour Justice Keane, accepted that an assault, or threat of assault, once made could not be remedied. His Honour formed the view however, that the discretion in section 55(2) of the Act remained, regardless of whether the breach was capable of remedy or not. The Court held that if the breach could not be remedied, then the issue could be set aside and the Tribunal go on to consider the two remaining factors in 55(2), namely, whether the landlord had been compensated for any loss arising from the breach, and whether it was unlikely that the tenant would commit any further breach of the same kind. Facts
The tenancy commenced on 19 September 2022 and is periodic. The property is a single storey flat in a block. The occupants of all the flats are tenants of the landlord. The landlord has CCTV cameras capturing the driveway, which also shows the front door and porch areas of each property, and a CCTV camera capturing the rear of each property showing the back door. The landlord has produced footage from 21 December 2023 which shows the tenant’s immediate neighbour “M” retrieving their yellow recycling bin from the roadside, wheeling down a path to their back door. As M is doing so the tenant appears to climb out of his window approach M from behind and kick him in the lower back causing M to stumble. M suffers from a physical disability. M regains his footing and turns to face the tenant who then raises his fists. There is a brief standoff before both M and the tenant return to their respective properties. The incident is clear.
The landlord has produced a signed statement from M dated 05 March 2024. The landlord states that M is afraid to come to Court and unable to attend by telephone. The statement has been disclosed for the first time today. The tenant has been given the opportunity to read it. In the statement M , who moved into the flats prior to the tenant , states that since encountering the tenant, the tenant has engaged the following behaviour : “ constantly knocking on mine and other neighbours doors and windows, demanding alcohol , demanding to know what is in my deliveries , stealing my Uber eats , then walking into my home uninvited offering me some of my food , which was out of its sealed Uber bag , standing on my porch uninvited and unannounced , putting his head inside my open window , banging on the shared wall and slamming doors , breaching bail conditions and trespass orders not to approach me , banging on the driveway fence , posturing towards my guest”. M states he suspects that the tenant uses illicit substances. M states does not feel safe during the day or night and barricades himself inside at night. M states that they suffer from mental health issues and that the tenant’s behaviour is causing extreme anxiety. There is no medical evidence produced to confirm the extent of the anxiety suffered by M.
The landlord has produced CCTV footage show from 3.18am on 31 January 2024, showing the tenant going to M’s door and leaving a short time later. Concerning an allegation that the tenant had confronted a guest of M the landlord produced CCTV evidence from later that day at 5.28pm showing M and their guest arriving home from grocery shopping whereupon they are confronted by the tenant on the driveway. The guest has provided a written statement concerning the incident stating that the tenant was acting erratically, not making sense, saying that he would “fucken smash you bro “and at the same time stating, “you sweet bro,” suggesting that the tenant was under the influence. The guest states that later that afternoon while inside M’s property they witnessed the tenant attempt to gain entry but was pushed away.
The tenant states that they were arrested and appeared via AVL from the police station on 08 February 2024. The tenant initially stated that the matter had been concluded but then later advised that they had been referred for alcohol and drug counselling and were to appear before the Court again in late May 2024. While the housing case worker can confirm that the tenant has been charged and have a lawyer, they are unable to assist further. That information would have been useful. While the tenant accepts that they assaulted M, they state that earlier in the day M had abused them through the adjourning wall, calling him a “female dog.”
The tenant denies that he threatened the guest and stated that he does not speak like that. The landlord has produced CCTV from 21 January 2024 at
49pm showing a male leaving the tenant’s property going to M’s property, knocking on the door then leaving. The tenant states that the associate had gone next door to ask M for a smoke and had been told to “fuck off.”
The landlord states that apart from the assault, the first they had been aware of the other matters raised by M in the statement was following the alleged assault on 21 December 2024.
There are no record matters being raised by M prior to that, nor from any of the other tenants in the complex. The landlord states they had issued a 14-day notice in November 2023 for breaching the neighbours reasonable peace comfort and privacy, although this has not been produced, and since the alleged assault they had issued three anti-social behaviour notices and another 14 day breach notice on 29 February 2024 alleging that the tenant had been banging on the wall, something that he denies. There is no evidence of any other notices having been issued.
The tenant denies any use of illicit substances. Regarding the allegations made by M in the statement the tenant accepts that he had been to M’s front door asking for smokes, that the Uber delivery had been made to his address by mistake, and that he had consumed the food. The tenant and that he regularly asked other occupants of the flats for smokes. The tenant stated that M had also been to his property uninvited.
The tenant states that they presently have an informal involvement with community mental health services, having previously been the subject of a compulsory order. That they receive treatment fortnightly, had a key worker who they could contact, and that they meet with their doctor every 5 months for a review. The housing case worker stated that to their knowledge community mental health were unaware of these matters. The tenant stated that they had cut down on their alcohol use. That they were supported by a charitable organisation dealing with victims of family violence. It appears that the tenant may have been a victim of violence. The housing case worker was not aware of any other supports in place. Termination for anti-social behaviour
The issue is whether the notices each describe behaviour that can be defined on.
To succeed with an application for anti-social behaviour all three notices must meet the requirements in 55A(2)(b)(i) – (iv). Unless it is set out in the notice itself, or attached with the notice when served, any other evidence concerning the alleged behaviour is irrelevant. It is each notice, on its own, which must “clearly describe” an act that meets the definition of anti-social behaviour.
The first notice issued on 31 January 2024, referring to alleged anti-social behaviour on 24 January 2024, the second issued on 07 February 2024, referring to anti-social behaviour on 07 February 2024, and the third issued on 23 February 2024, referring to anti-social behaviour occurring on 19 February 2024.
The second and third notice describe behaviour that can be described as anti- social. The first notice simply describes the behaviour as, “a friend of [The tenant] went to the neighbour’s door and knocked on it then ran back to [The tenant’s] [home].” I am not satisfied that first notice describes behaviour that meets the definition of anti-social behaviour, which is behaviour that reasonably causes alarm, distress or nuisance that is more than minor. The application for termination for anti-social behaviour is dismissed. Termination for breach incapable of remedy / assault on neighbour
The discretion to refuse termination under both section 55(2) and section 56(1)(c) involve the consideration of the same factors.
M’s statement has been produced for the first time at the hearing. The Tribunal has not had the opportunity to hear from M either in person or over the phone. The tenant denies some of the allegations made and has not been afforded the opportunity to challenge M. The Tribunal must be cautious as to what weight it puts on M’s written statement.
As stated, apart from the assault on 21 December 2023, none of the matters raised in M’s statement dated 05 March 2023 have previously been reported to the landlord. There are no complaints from any others at the complex. There have been four notices for anti-social behaviour, three of which have been produced dealing with the events of 21 January and 31 January 2024 discussed above, and 24 January 2024, where it is alleged that an associate of the tenant knocked on M’s door. A 14-day noticed issued in November 2023 has not been produced.
Although the exact nature of the tenant mental health and addiction issues are not known, it is more likely than not a factor in the assault of 21 December 2023 and the incident involving M’s guest on 31 January 2024. An ongoing involvement with community mental health services suggests that the tenant has some motivation to address these issues. The tenant reports that they have been referred for alcohol counselling. This suggests that the matter is still before the Court.
The most serious incident relied upon is the assault on M. This would appear to have been a deliberate act. The assault involved a single kick to the lower back from behind. It is unknown whether M suffered any physical injuries, although M suffers from a disability known to the tenant. The tenant states that they had been provoked. On the facts, the other matters subject of the 14-day notice and anti-social notices are not particularly serious, although it is accepted that M likely suffers from a mental health condition that affects their resilience.
After careful consideration of the matter, I have decided not to order immediate termination of the tenancy. The landlord provides accommodation for those vulnerable members of the community suffering alcohol and / or mental health issues. The material before me suggests that complainant, and tenant fall into that category, and are, as such are inherently vulnerable. The tenant wishes to maintain the tenancy. In my view it is the public interest that they maintain independent living.
In my opinion, it is therefore appropriate to adjourn and provide the tenant with an opportunity to demonstrate to they can meet their obligations under the agreement and Act to both the landlord and their neighbours. I am directing that the matter be placed before me again in at the end of May / early June 2024. If there are no further incidents amounting to a breach, the tenant may avoid termination. The matter will be determined on merit. 31 May 2024
[The Housing Team Leader], [The Acting Team Manager], and [The Tenancy Manager], appeared for the landlord. The tenant appeared and was supported once again by his [Housing Care Worker].
Following the adjournment, the landlord submitted letters from M (I will continue refer to the neighbour concerned as “M”), concerning the detrimental effects residing next door to the tenant was having on their health and wellbeing. A health professional treating M for mental health and addiction has also provided a letter dated 26 March 2024 stating that M has disengaged from services, likely due to the incidents involving the tenant. The letters refer to the historical incidents discussed at the last hearing. There appeared to have been no further incidents. I indicated to the landlord that if there were fresh incidents, they could request to bring the matter forward. No reports of any further incidents involving the tenant and the neighbour concerned were submitted.
The tenant states that they have appeared before the Court again over the assault incident involving M. The tenant was vague about the outcome and states that the likely outcome will be that they continue to engage with mental health and addiction services. [The Housing Care Worker] was unable to assist.
The landlord states that since the last hearing there have been two incidents involving the tenant and M which have resulted in the issue of two more anti- social behaviour notices.
The first incident occurred on 09 April 2024. The notice states that tenant went onto M’s front porch on three successive occasions, at 6.13pm, 6.22pm and
22pm, despite being previously told by the landlord not to do so. The landlord produced CCTV footage showing the tenant going to M’s porch before returning to their own property moments later. It appears that M complained about the behaviour of the tenant on the shared driveway, although the incident did not directly involve them. A housing manager viewed CCTV capturing the event referred to in the notice, but not one complained of. The tenant stated their heat pump was not working, and he went onto M’s porch to see if the unit had been turned off. The landlord initially denied that the tenant’s heat pump unit was located on M’s porch, but after reviewing the CCTV, conceded that it was. It does not appear that M was aware that the tenant had been on the porch.
The second incident occurred on 25 April 2024 at 3.20pm. The notice states that despite being warned not to go to M’s property, the tenant knocked on the door and spoke to M. This incident was also captured on CCTV, showing the tenant going onto M’s porch area and then leaving moments later. The tenant cannot be seen entering M’s property.
The landlord has produced an email sent by M outlining the incident. M states that they had opened their door to lure stay cats, when about five minutes later the tenant appeared at the door and asked him if he had “made him black out,” to which he replied that he had not, and the tenant left.
The tenant state due to their medical condition, they suffer from blackouts. Having suffered a blackout, the tenant went next door to inquire if they were responsible. Upon determining that M was not responsible, the tenant left. The tenant states that they were arrested for breaching their bail condition not to contact M, appeared before the Court, and was readmitted to bail on the same terms with a warning.
The landlord submits that the two further incidents, together with the other evidence concerning the impact of the tenant’s behaviour, that it is likely the tenant will assault again.
Can the Tribunal be satisfied that it is unlikely that the tenant will commit any further breach of a kind to which this section applies? The Tribunal must be satisfised on the balance of probabilities.
Regarding the alleged incident on 09 April 2024, there is no evidence that M was aware of the tenant’s presence on the porch or that the tenant was directing behaviour toward M. The tenant’s purpose for being on the porch is plausible. The second incident has similarities to the assault matter of 21 December 2023, where earlier in the day, M had been calling the tenant derogatory names through the shared wall. Although the tenant did not assault M, their approach to M was also the result of something they believed M had done, being responsible for the tenant’s blackout.
Had there not been no further incidents between the tenant and M, the Tribunal would have declined to terminate the tenancy. Unfortunately, this has not been the case. The proximity of the two properties appears to increase the risk that a similar incident will occur again. Despite repeated warnings, and bail conditions, the tenant has continued to interact with M, or put themselves at risk of doing so. For these reasons, the Tribunal is regrettably unable to be satisfied that there will not be a breach in which the tenant either assaults, or threatens to assault, their neighbour.
The tenancy is terminated, and possession granted to the landlord at midnight on Monday 22 July 2024,
During the hearing, the landlord advised that despite seeking to terminate the tenancy, they wished to support the tenant find alternate, more suitable accommodation. Both M and the tenant are vulnerable people. I hope the landlord is able to fulfil their commitment to the tenant, as they have the resources and experience to do so. Name suppression
The landlord seeks name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
The landlord has been wholly successful and is granted name suppression.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.
While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the tenant. Upon careful consideration, I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion and order suppression of the tenant’s name.

Tenancy Tribunal case 4773118 — 14-day notice

At a glance

Tenancy Tribunal case 4773118 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions