What was Tenancy Tribunal case 4861324 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4861324?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4861324?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4861324?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10967274-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4861324 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4861324?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4861324?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4861324?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10967274-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4861324 — 14-day notice

Order

The application is dismissed.

Reasons

Both parties attended the hearing on 11 October 2024.
[The tenant’s support person] assisted the tenant. I wish to place on record my thanks for her assistance during the course of this hearing.
A rehearing of this matter was granted by the Tribunal on 5 July 2024. This means that the matter is heard afresh by a different adjudicator and the decision of the Tribunal is heard taking into consideration the documentary evidence filed by the parties and the evidence heard on 11 October 2024.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the landlord must establish that what they are claiming is more likely than not.
The term “balance of probabilities” means more likely than unlikely, 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 more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like 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.” (the emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, both parties have submitted documentary evidence including emails, photos and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found the parties to this hearing to be diligent and honest people. I have absolutely no doubt that all parties came to the hearing with a genuine desire to provide their evidence in a truthful manner and to seek an appropriate outcome.

Should the tenancy be terminated?

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations under s.55(1)(c) and 56(1) of the Residential Tenancies Act 1986 (“RTA”) .
The relevant clause on the tenancy agreement provides that the landlord can apply to the Tribunal to end the tenancy if the tenant assaults or threatens to assault a neighbour.
Section 53 (1)(c) RTA provides in part, that the Tribunal shall terminate a tenancy if it is satisfied that the tenant has assaulted or threatened to assault a neighbour.
The evidence of a threat to assault a neighbour was provided by way of video evidence of the incident. I watched the video carefully three of four times during the hearing. The hearing has been taken on a video camera set up at the tenant’s neighbours house. These neighbours are essentially the complainants in this matter. They live at [redacted].
The video was taken on 12 April 2024.The video shows the tenant standing on a deck outside his house, which appears to be ten meters from where the camera was set up. The tenant’s balcony faces towards the neighbour’s house.
The video is not clear. Rain drops appear on the lens. There is no sound.
In the video, the tenant can be seen standing on the deck to his premises. He is obviously saying or yelling in the direction of the neighbouring property. The tenant has something in his hands and he is from time to time gesturing with the item. The suggestion that he may have been wearing a gang patch at the time is dismissed. The video makes it clear that a patch is not being worn by the tenant.
The proposition put before me by the landlord was that the item being brandished was an axe. The tenant says that it was a hammer. He said that he had just prior to the commencement of the video been hanging pictures in his lounge. That is supported by evidence by way of a statement from Jeremy Wratt who says that he had been with the tenant at the time of the incident and confirmed the tenant’s version of events.
I understand that the police were called to the incident by the neighbour and that after viewing the video they considered the video to be inconclusive and no criminal charges were laid. The criminal standard of proof is beyond reasonable doubt. This is a civil jurisdiction where the standard is the lower balance of probabilities.
Having viewed the video, I consider that the tenant was acting in aggressive manner. It is of course impossible to tell what is being said. He is gesticulating with an item. Whether it was an axe or a hammer is not clear and is not relevant to the landlord application.
I do not consider that the landlord has proven by the video evidence that the tenant has threatened to assault the neighbour and the application is dismissed.
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. See section 56(1) RTA.
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.
The landlord provided evidence of numerous complaints from the tenant’s neighbours at number [Event location suppressed]. They include complaints that the tenant yelled at them and shone lights at their CCTV camera. One issue raised in the landlord’s written submissions was that the tenant yelled racial abuse at the neighbours.
The tenant provided the Tribunal with a photo of a car. The photo has been taken by the tenant on 14 May 2024. The tenant said that the car was owned by his neighbour. The car had been towed to the street and left there by the neighbour. The rear of the car faces towards the tenant’s house. The car had remained there for a period of approximately three months. The words “Filthy Coon” appear in large letters on the rear window of the car. The words would have been clearly visible to anyone and in particular the tenant.
The landlord provided a second video showing the driveway between number [house number redacted] and number [Event location suppressed]. Two cars are shown parked, one behind the other on the “[house number redacted] side of the driveway. [The tenant/s] can be seen entering the driveway in his car. Initially the car goes towards the entrance to his residence at number [redacted]. The car then stops and reverses back onto the road. The car is then manoeuvred so that it stops very close to the rear parked car . The effect of the parking method would be to prevent anyone entering the parked car from the driver’s side.
The intent of the tenant on this occasion was obviously unneighbourly, but the landlord was unable to assist the Tribunal in saying whether the land on which the tenant eventually stopped was on the “[house number redacted]” or the “[house number redacted]” side of the boundary.
The evidence of the landlord certainly points to a relationship between these two neighbours which has totally broken down.
The landlord provided evidence of numerous telephone calls by the tenant to the landlord’s call centre. Three recorded examples of the calls were played for the Tribunal. During the calls, the tenant is abusive and offensive to the staff. The staff taking the calls are to be commended, as they have at all times remained calm and retained a professional demeanour.
The tenant accepted that his behaviour during the telephone calls was inexcusable. He showed a substantial degree of insight and understanding on this issue. He said by way of background, but not by way of excuse, that he had been frustrated. He had attempted to obtain assistance from his landlord on numerous occasions over an extended period of time without success. On a positive note, the tenant explained that he now had a contact within the landlord’s organisation with whom a he had a positive relationship.
In Huff v City Central Property Management [2020] NZDC 19229. The District Court considered s.56(1(c) RTA and set out a range of factors relevant to whether it would be inequitable to refuse to terminate the tenancy. Those factors are; (a) The history of the tenancy. (b) Whether there have been persistent failures after repeated warnings. (c) whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. (d) Whether the breach was inadvertent or deliberately committed. (e) The conduct of the landlord. (f) The gravity of the breach. (g) Whether termination is a proportionate response to the breach.
The history of this tenancy shows an ongoing dispute between two neighbours. It is not clear what caused the issue. The tenant has provided a number of statements that are supportive of him from former or previous [Event location suppressed] residents. A statement was provided from a former neighbour indicating that the source of the disharmony was the tenants at [house number redacted].
The tenant has been given numerous warnings regarding his behaviour by the landlord.
Does the history of breaches mean that it is unlikely that the tenant will comply in the future? The tenant has of recent times, taken on substantial personal growth. That was apparent at the hearing and was supported by [the tenant’s support person]. The tenant displayed an insight into his personal issues that is not commonly experienced in the Tribunal. That growth gives me a degree of confidence that the tenant is likely to comply with his obligations going forward.
The breaches can only be described as deliberate. That the tenant was on the receiving end of provocation from his neighbour also is apparent. I note that the neighbour had indicated to the landlord representative that they were prepared to give evidence by telephone at the hearing. Telephone calls were made to the neighbour during the hearing. Those calls were not answered by the tenant and so no direct evidence of the incidents was provided by the neighbour.
In the circumstances of this case, I consider that the conduct of the neighbour should be considered. The tenant says that he is under substantial provocation from his neighbours. The evidence provided by the tenant would indicate that this is correct. That does not excuse the tenant’s behaviour, but does give some helpful background to it.
The tenant accepted that his behaviour was extremely poor. The role of the landlord’s call centre staff is to provide support. They do not deserve to be spoken to in the manner adopted by the tenant irrespective of any frustration that he may have felt. There can simply be no excuse for the behaviour.
The evidence is clear that the tenant has caused interference with the reasonable peace, comfort of one of the other landlord’s tenants and is in breach of s.40(2)(c) RTA. Would it be inequitable to refuse to make an order terminating the tenancy?
I have taken into account the seriousness of the breaches. I do not underestimate them. I must also take into account the actions of the neighbouring tenant’s in exacerbating the problem by their own actions. I also take into consideration the steps taken by the tenant to address what he accepts are personal issues.
By a very fine margin, I consider that it would not be inequitable to refuse to terminate this tenancy and the application for termination of the tenancy is dismissed. The tenant needs to be aware that any further conduct of the type raised by this application will inevitably see a further application for termination of his tenancy by the landlord. In those circumstances the landlord should provide the Tribunal considering that application with a copy of this order. What happens next is entirely in the tenant’s hands.
I wish to place on record that I consider that the landlord has acted entirely appropriately and responsibly in bringing this application before the Tribunal. The outcome is in no way to be seen as a reflection on the landlord or their staff.
The tenant applied for name suppression. The tenant has been substantially successful in this matter and suppression of the tenant name and details is ordered.

Tenancy Tribunal case 4861324 — 14-day notice

At a glance

Tenancy Tribunal case 4861324 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions