What was Tenancy Tribunal case 4905794 about?

The tribunal order states: The landlord’s application for costs is dismissed.

How much money was awarded in case 4905794?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4905794?

The dispute type was not classified.

Where can I read the official tribunal order for case 4905794?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12249010-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4905794 about?

The tribunal order states: The landlord’s application for costs is dismissed.

How much money was awarded in case 4905794?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4905794?

The dispute type was not classified.

Where can I read the official tribunal order for case 4905794?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12249010-Tribunal_Order.pdf.

6 Suwyn Place, Weymouth, Auckland 2103 Tenancy Tribunal Case 4905794 — Tenancy dispute

Order

The landlord’s application for costs is dismissed.

Reasons

The landlord has applied for costs. The application has been heard on the papers. Tribunal and District Court Proceedings
A summary of the procedural background is as follows: • On 31 May 2024, Ms Kumar applied for various orders in the Family Court. Relationship property proceedings pursuant to section 25 of the Property Relationships Act 1976 (PRA) were filed on 12 June 2024. • On 20 June 2024, the Tribunal granted possession of the premises to Mr Kanhai (Kanhai v Kumar [2024] NZTT 4905794). The Tribunal noted that costs were claimed and requested a costs memorandum by 27 June 2024. • Ms Kumar appealed to the District Court. The Judge granted a stay of proceedings on 3 July 2024 (Kumar v Kanhai [2024] NZDC 15320). • On 21 February 2025 the District Court dismissed Ms Kumar’s applications under the PRA. The applications related to the use and occupation of the premises pursuant to section 26 (orders for benefit of children of de facto relationship) section 26A (postponement of vesting of relationship property) and section 27 (occupation orders). The District Court decided that the orders could not be made for jurisdictional reasons (Kumar v Kanhai [2024] NZFC 11009). • On 13 March 2025, Ms Kumar filed a notice of discontinuance of the appeal from the Tribunal. In an affidavit in support of discontinuance, Ms Kumar said it had been agreed with Mr Kanhai that there was no issue as to costs and each party would deal with their respective costs. She indicated that the parties would agree a date when she would vacate the premises. • Also on 13 March 2025, Ms Kumar filed a memorandum in the Family Court proceedings stating that it had been agreed to end all proceedings and that Mr Kanhai would discontinue his application for costs. • The District Court confirmed the appeal was discontinued on 29 April 2025. Mr Kanhai agreed to the discontinuance. • On 20 May 2025 Mr Kanhai advised the Family Court that he had decided not to seek costs. Application for Costs
On 27 June 2025, Mr Kanhai applied for costs pursuant to section 102(3) of the Residential Tenancies Act 1986 (the Act) in the sum of $4,126.20. This reflected Mr Kanhai’s actual costs.
When granting a stay of proceedings in the appeal on 3 July 2024, the Judge made the following comment, at [5]: ...Whilst I accept the validity of the basis upon which the Tenancy Tribunal ruled (in terms of Sergeant v Nigro), I consider that where there is a question over the bona fides of [Mr Kanhai]’s application to the Tenancy Tribunal for orders in the knowledge of and reaction to an application filed by [Ms Kumar] in the Family Court, perhaps with intent to pre-empt that proceeding, there is or may be an important question involved: namely whether there is an “illegitimate” pathway for spouses to circumvent Property (Relationships) Act 1976 applications by seeking a possession order from the Tenancy Tribunal before the disposition and determination of such Family Court proceedings...
The Tribunal has no power to award costs except where, inter alia, any of the parties was represented by counsel. Where this applies, the Tribunal may order a party to pay the “reasonable costs” of the other party in connection with the proceedings (section 102 of the Act).
Costs are at the discretion of the Tribunal. The general principle for determining costs is that they “follow the event”, namely the party who fails with respect to a proceeding or application should pay costs to the party who succeeds. Further, in the District Court, costs are assessed by applying a daily recovery rate to the reasonable time of each step reasonably required in the proceeding or application. In certain circumstances, costs can be increased, or indemnity costs can be awarded (see generally Part 14 of the District Court Rules).
The main reasons why Mr Kanhai submits he should be awarded costs were summarised at paragraph 2 of Mr Choi’s Memorandum dated 27 June 2025: • Mr Kanhai’s application was “wholly successful”. • Ms Kumar could have avoided the application by vacating the premises as requested. • Mr Kanhai required legal counsel to advance his application under section 65 of the Act. • The issue was of significance to the parties. Mr Kanhai had been kept out of his home and belongings and Ms Kumar had refused to vacate even when trespassed and no right of occupation remained.
Ms Kumar’s legal counsel, Mr Kumar, filed a memorandum dated 8 August 2025 in opposition to the claim for costs. A reply memorandum was filed by Mr Choi dated 9 August 2025. It is evident from these memoranda that there is a dispute between the parties about whether Ms Kumar vacated the premises on 6 August 2025. Analysis
The Tribunal has jurisdiction to award costs in this case because both parties were represented by counsel. I accept that there was some complexity to the matter especially given the extant Family Court proceedings. The Tribunal was grateful to receive assistance from counsel.
Mr Kanhai succeeded in his application before the Tribunal. The principle that costs follow the event applies in his favour.
However, in my view, the proper exercise of my discretion does not end there. The Judge’s comments on 3 July 2024 were apposite. The Tribunal was also troubled by the interplay between the Family Court and Tribunal proceedings (see the order at [14]-[16]) but felt compelled to follow Sergeant v Nigro. The Tribunal’s order had the potential to interfere with the Family Court’s processes or to provide an unfair collateral advantage.
On the other hand, Ms Kumar’s application to the Family Court for various orders was unsuccessful. Whether the premises constituted relationship property was not decided prior to discontinuance (as I understand it). If the Court had gone on to identify and divide the relationship property, the Family Court might have revisited the matters raised by Ms Kumar’s applications under the PRA, although that is speculation.
I am also mindful of the fact that the District Court appeal and Family Court proceedings were discontinued with no order as to costs (although Mr Kanhai submits that he retains the right to apply for the costs of the appeal). Ms Kumar might reasonably have supposed that the Tribunal proceedings were also resolved on that basis. On the other hand, it is not clear that any agreement about costs included the Tribunal application.
There is concern and uncertainty about whether Ms Kumar has now vacated the premises. Some evidence has been presented to show that she has purchased a property for herself and her daughter with a settlement date of 31 July 2025. If Ms Kumar has not vacated, then a further application pursuant to section 65 might be warranted. However, the Tribunal cannot sensibly determine this factual issue in the context of an application for costs.
After weighing all these factors, which are balanced, I decline to exercise my discretion to award costs to Mr Kanhai. He was successful before the Tribunal and Ms Kumar discontinued the appeal and Family Court proceedings. As it turned out, it seems to me that the Tribunal proceeding did not “circumvent” the PRA. At the same time, it could be said that the Tribunal proceedings were an unnecessary corollary to the Family Court proceedings, had the potential to interfere with the Family Court’s jurisdiction, and added to the costs both parties incurred.
I would also note that I cannot identify grounds for indemnity costs, and I am not convinced that actual costs necessarily equate to “reasonable costs” under the Act. Had it been necessary to do so, and utilising the District Court Rules as a quick method to calculate costs, on a Category 1A basis an award closer to $2,250.00 might have been appropriate.

Reasons

The landlord has applied for costs. The application has been heard on the papers. Tribunal and District Court Proceedings

A summary of the procedural background is as follows: • On 31 May 2024, Ms Kumar applied for various orders in the Family Court. Relationship property proceedings pursuant to section 25 of the Property Relationships Act 1976 (PRA) were filed on 12 June 2024. • On 20 June 2024, the Tribunal granted possession of the premises to Mr Kanhai (Kanhai v Kumar [2024] NZTT 4905794). The Tribunal noted that costs were claimed and requested a costs memorandum by 27 June 2024. • Ms Kumar appealed to the District Court. The Judge granted a stay of proceedings on 3 July 2024 (Kumar v Kanhai [2024] NZDC 15320). • On 21 February 2025 the District Court dismissed Ms Kumar’s applications under the PRA. The applications related to the use and occupation of the premises pursuant to section 26 (orders for benefit of children of de facto relationship) section 26A (postponement of vesting of relationship property) and section 27 (occupation orders). The District Court decided that the orders could not be made for jurisdictional reasons (Kumar v Kanhai [2024] NZFC 11009). • On 13 March 2025, Ms Kumar filed a notice of discontinuance of the appeal from the Tribunal. In an affidavit in support of discontinuance, Ms Kumar said it had been agreed with Mr Kanhai that there was no issue as to costs and each party would deal with their respective costs. She indicated that the parties would agree a date when she would vacate the premises. • Also on 13 March 2025, Ms Kumar filed a memorandum in the Family Court proceedings stating that it had been agreed to end all proceedings and that Mr Kanhai would discontinue his application for costs. • The District Court confirmed the appeal was discontinued on 29 April 2025. Mr Kanhai agreed to the discontinuance. • On 20 May 2025 Mr Kanhai advised the Family Court that he had decided not to seek costs. Application for Costs

On 27 June 2025, Mr Kanhai applied for costs pursuant to section 102(3) of the Residential Tenancies Act 1986 (the Act) in the sum of $4,126.20. This reflected Mr Kanhai’s actual costs.

When granting a stay of proceedings in the appeal on 3 July 2024, the Judge made the following comment, at [5]: ...Whilst I accept the validity of the basis upon which the Tenancy Tribunal ruled (in terms of Sergeant v Nigro), I consider that where there is a question over the bona fides of [Mr Kanhai]’s application to the Tenancy Tribunal for orders in the knowledge of and reaction to an application filed by [Ms Kumar] in the Family Court, perhaps with intent to pre-empt that proceeding, there is or may be an important question involved: namely whether there is an “illegitimate” pathway for spouses to circumvent Property (Relationships) Act 1976 applications by seeking a possession order from the Tenancy Tribunal before the disposition and determination of such Family Court proceedings...

The Tribunal has no power to award costs except where, inter alia, any of the parties was represented by counsel. Where this applies, the Tribunal may order a party to pay the “reasonable costs” of the other party in connection with the proceedings (section 102 of the Act).

Costs are at the discretion of the Tribunal. The general principle for determining costs is that they “follow the event”, namely the party who fails with respect to a proceeding or application should pay costs to the party who succeeds. Further, in the District Court, costs are assessed by applying a daily recovery rate to the reasonable time of each step reasonably required in the proceeding or application. In certain circumstances, costs can be increased, or indemnity costs can be awarded (see generally Part 14 of the District Court Rules).

The main reasons why Mr Kanhai submits he should be awarded costs were summarised at paragraph 2 of Mr Choi’s Memorandum dated 27 June 2025: • Mr Kanhai’s application was “wholly successful”. • Ms Kumar could have avoided the application by vacating the premises as requested. • Mr Kanhai required legal counsel to advance his application under section 65 of the Act. • The issue was of significance to the parties. Mr Kanhai had been kept out of his home and belongings and Ms Kumar had refused to vacate even when trespassed and no right of occupation remained.

Ms Kumar’s legal counsel, Mr Kumar, filed a memorandum dated 8 August 2025 in opposition to the claim for costs. A reply memorandum was filed by Mr Choi dated 9 August 2025. It is evident from these memoranda that there is a dispute between the parties about whether Ms Kumar vacated the premises on 6 August 2025. Analysis

The Tribunal has jurisdiction to award costs in this case because both parties were represented by counsel. I accept that there was some complexity to the matter especially given the extant Family Court proceedings. The Tribunal was grateful to receive assistance from counsel.

Mr Kanhai succeeded in his application before the Tribunal. The principle that costs follow the event applies in his favour.

However, in my view, the proper exercise of my discretion does not end there. The Judge’s comments on 3 July 2024 were apposite. The Tribunal was also troubled by the interplay between the Family Court and Tribunal proceedings (see the order at [14]-[16]) but felt compelled to follow Sergeant v Nigro. The Tribunal’s order had the potential to interfere with the Family Court’s processes or to provide an unfair collateral advantage.

On the other hand, Ms Kumar’s application to the Family Court for various orders was unsuccessful. Whether the premises constituted relationship property was not decided prior to discontinuance (as I understand it). If the Court had gone on to identify and divide the relationship property, the Family Court might have revisited the matters raised by Ms Kumar’s applications under the PRA, although that is speculation.

I am also mindful of the fact that the District Court appeal and Family Court proceedings were discontinued with no order as to costs (although Mr Kanhai submits that he retains the right to apply for the costs of the appeal). Ms Kumar might reasonably have supposed that the Tribunal proceedings were also resolved on that basis. On the other hand, it is not clear that any agreement about costs included the Tribunal application.

There is concern and uncertainty about whether Ms Kumar has now vacated the premises. Some evidence has been presented to show that she has purchased a property for herself and her daughter with a settlement date of 31 July 2025. If Ms Kumar has not vacated, then a further application pursuant to section 65 might be warranted. However, the Tribunal cannot sensibly determine this factual issue in the context of an application for costs.

After weighing all these factors, which are balanced, I decline to exercise my discretion to award costs to Mr Kanhai. He was successful before the Tribunal and Ms Kumar discontinued the appeal and Family Court proceedings. As it turned out, it seems to me that the Tribunal proceeding did not “circumvent” the PRA. At the same time, it could be said that the Tribunal proceedings were an unnecessary corollary to the Family Court proceedings, had the potential to interfere with the Family Court’s jurisdiction, and added to the costs both parties incurred.

I would also note that I cannot identify grounds for indemnity costs, and I am not convinced that actual costs necessarily equate to “reasonable costs” under the Act. Had it been necessary to do so, and utilising the District Court Rules as a quick method to calculate costs, on a Category 1A basis an award closer to $2,250.00 might have been appropriate.

Tenancy Tribunal case 4905794 — Tenancy dispute at 6 Suwyn Place, Weymouth, Auckland 2103

At a glance

Claims & awards

Tenancy Tribunal case 4905794 — Tenancy dispute at 6 Suwyn Place, Weymouth, Auckland 2103

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions