What was Tenancy Tribunal case 4826168 about?

The tribunal order states: [The tenant/s] section 60AA application for compensation and exemplary

How much money was awarded in case 4826168?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4826168?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4826168?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10576036-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4826168 about?

The tribunal order states: [The tenant/s] section 60AA application for compensation and exemplary

How much money was awarded in case 4826168?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4826168?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4826168?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10576036-Tribunal_Order_Redacted.pdf.

Unit/Flat 1, 5 Balfour Road, Parnell, Auckland 1052 Tenancy Tribunal Case 4826168 — Exemplary damages

Order

[The tenant/s] section 60AA application for compensation and exemplary damage is dismissed.

Reasons

The hearing was held on 11 July 2024.
Both parties attended the hearing.
[The tenant/s], the tenant, attended the hearing with a support person, [The tenant/s support person].
Mr Alexander attended the hearing on behalf of the landlord, Mr Middleton.
[The tenant/s] complained that Mr Middleton issued a section 51(1)(a) termination notice under the Residential Tenancies Act 1986 ("RTA"), which required her to vacate the premises without grounds within 63 days. In other words, [The tenant/s] alleged that Mr Middleton did not intend to make the property his principal place of residence for at least 90 days when the section 51(1)(a) termination notice was given to her.
[The tenant/s] stated in the hearing that if Mr Middleton had utilised section 51(2) of the RTA that he intended to put the property on the market within 90 days after the termination date, she would not have complained because she would have had 90 days to handle her affairs and attend her medical appointments without feeling stressed during the most vulnerable time of her life. Burden of proof
The applicant must prove all elements of the claim on the balance of probabilities; i.e., more probable than not.
In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.
This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: [102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.
Section 97(4) Residential Tenancies Act 1986 provides that: ... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law.
It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities. [The tenant/s] submissions Notice Period and Hardship
[The tenant/s] emphasised that being given only 63 days to vacate instead of 90 days caused her severe hardship.
[The tenant/s] said she had just undergone a double mastectomy surgery four weeks before the vacate date and was unable to pack and move properly.
The additional 27 days would have allowed more recovery time before moving.
It caused significant stress/difficulties having to move so soon after surgery while also undergoing chemotherapy treatment.
She had to store all her belongings, couch surf with friends and family, and live out of a suitcase.
It disrupted her cancer treatment, causing her to defer radiation therapy by three weeks. Doubts About Landlord's Intent
[The tenant/s] doubts Mr Middleton ever truly intended to live in the property for at least 90 days as required under section 51(1)(a) RTA.
She points to the fact the property was valued for sale in August 2023, just weeks before the termination notice.
An email from Mr Middleton on 8 January 2024 mentions preparing the flat for sale photography while occupying it.
She argued that the small 2-bedroom unit seemed unsuitable for Mr Middleton's family of 4 with young twins.
She further argued that furniture/setup looked like "staging" for sale rather than actual living accommodations.
She submitted that no evidence was provided of Mr Middleton shipping belongings from the UK or selling his UK home as expected for relocation. Changing Reasons/Backstory
[The tenant/s] felt the reasons and backstory provided by Mr Middleton kept changing conveniently.
[The tenant/s] submitted that the initial reason was for Mr Middleton's mother and stepfather to live at the property while their home was rebuilt.
Then it shifted to Mr Middleton and his family living there temporarily to help his ill mother.
After Mr Middleton’s stepfather passed away shortly after arriving in NZ, he then decided to sell the property. Lack of Assistance/Accommodation
[The tenant/s] submitted the property manager responded dismissively when advised that the vacate date would be difficult just weeks after surgery.
No offer was made to extend the notice period or provide any accommodation given her medical situation. In summary
[The tenant/s] submits that Mr Middleton never actually intended to live on the property for at least 90 days as required under section 51(1)(a) RTA.
She pointed to the fact that the property was valued for sale in August 2023, just a few weeks before she was given the 63-day termination notice in September 2023. This suggests the landlord was already planning to sell.
She further submitted that the property itself - a small 2-bedroom unit - was unsuitable for the landlord's family of 4 including two young toddlers, given issues like an unsecured veranda drop.
She pointed me to an email from Mr Middleton on 8 January 2024, stating he was currently staying in the flat to prepare it for sale photography, contradicting claims he was moving in long-term.
She believes the furniture and setup were just for "staging" to help sell the property, not for actual living. Basic utilities would need to be connected regardless for a short stay.
She argued that there was no evidence that Mr Middleton was actually shipping belongings, freight forwarding from the UK, or selling his UK home—things one would expect if he were genuinely relocating.
The reasons and backstory from Mr Middleton kept changing and sounded like "convenient" justifications after the fact.
[The tenant/s] argued that providing only 63 days' notice instead of the required 90 days caused her severe hardship, as she had just undergone cancer surgery and had to move quickly. Mr Alexander’s submissions
Mr Alexander provided documentation and evidence to substantiate that Mr Middleton and his family intended to live on the property when the termination notice was given.
Mr Alexander submitted emails/communication showing they arranged to have the property furnished with their belongings shipped from the UK before arriving in New Zealand.
Mr Alexander submitted that Mr Middleton set up utilities like power, broadband internet accounts in preparation for moving in.
Mr Alexander further submitted a statement from a neighbour who confirmed that the Middleton family moved into and occupied the property when they arrived on 17 December 2023.
Mr Alexander acknowledged that the Middleton family did not end up staying the full 90 days as intended due to the death of Mr Middleton's stepfather soon after arriving. This led to a change in circumstances, and Mr Middleton's mother needed to go into care instead of them all living together.
As a result of this change in circumstances, Mr Alexander submitted that in early January 2024, the decision was made to list the property for sale instead. He maintained the original intent when issuing the termination notice was for the family to live there long-term.
Mr Alexander provided documentation showing Mr Middleton had moved out and stored his belongings in the UK, suggesting plans for an extended relocation to NZ.
Mr. Alexander stated there was no reason to mislead [The tenant/s], as a good tenant, with a shorter notice period if they did not genuinely intend to live there initially. The Law
[The tenant/s] claims that Mr Middleton committed an unlawful act because he and his family knew he and his family did not intend to make the property their principal place of residence for at least 90 days when the section 51(1)(a) termination notice was given to her.
Under Section 60AA RTA, a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986. Has [The tenant/s] discharged her burden of proof? Intent at Time of Notice
My questions to the parties during the hearing focused on whether Mr Middleton had the genuine intent to occupy the premises for at least 90 days at the time the termination notice was issued under section 51(1)(a) RTA. While I acknowledge [The tenant/s] complaint, the evidence before me did not persuade me to accept that Mr Middleton did not intend to make the property his principal place of residence for at least 90 days. Change in Circumstances
While I acknowledge Mr Middleton did not end up occupying for the full 90 days, I accept Mr Alexander's submission that this was due to the unforeseen change in circumstances, including the stepfather's death after arriving in NZ. The original intent was still present when issuing the termination notice. Lack of Misleading Intent
In my view, the key issue under section 51(1)(a) was whether there was any misleading of the tenant when issuing the termination notice, not necessarily whether the 90 days was ultimately satisfied. Based on the evidence before me, I am satisfied there was no intent to mislead [The tenant/s].
I am sympathetic to the hardship the shorter 63-day notice caused [The tenant/s]. However, this was a separate issue from whether the termination itself was unlawful under section 51(1)(a).
Accordingly, the landlord did not commit an unlawful act. [The tenant/s] application is dismissed. Name suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
Although [The tenant/s] was unsuccessful in her application, Mr. Alexander acknowledged that she was a good tenant. [The tenant/s] took good care of the property and always paid her rent on time. If it weren't for this unfortunate series of events, Mr Alexander would have had no issue with [The tenant/s] continuing her tenancy.
In my view, there is no public interest in this case, and the public does not need to know about [The tenant/s] personal medical issues.
Therefore, I order the suppression of [The tenant/s] name and any identifying details. General comment
While [The tenant/s] was unsuccessful in her application, I urge Mr. Middleton to consider the ordeal she went through after the termination notice was issued. I will leave this issue to Mr. Middleton to consider.

Tenancy Tribunal case 4826168 — Exemplary damages at Unit/Flat 1, 5 Balfour Road, Parnell, Auckland 1052

At a glance

Tenancy Tribunal case 4826168 — Exemplary damages at Unit/Flat 1, 5 Balfour Road, Parnell, Auckland 1052

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