Published tribunal order
Tenancy Tribunal case 4920261 — Tenancy dispute at Apartment 10A, 8 Scotia Place, Auckland Central, Auckland
Decided 24 Sept 2024 · Published 24 Sept 2024 · Application 4920261
Party names are redacted in the official published order.
Order
- The tenant’s name and identifying details must not be published.
- Keegan Oliver must pay [The tenant] $3,020.44 immediately, calculated as shown in table below: Repayment of bond $1,200.00 Reimbursement of rent paid in advance $1,800.00 Filing fee reimbursement $20.44 Total award $3,020.44
Reasons
- The hearing was conducted on Microsoft Teams.
- The tenant attended the hearing by telephone.
- The landlord did not attend. The hearing proceeded in his absence after the Tribunal made several unsuccessful attempts to contact him.
- The tenant seeks an order for return of $3,000.00 she paid to the landlord in bond and rent in advance for a tenancy that the landlord cancelled before it began. Background
- The landlord advertised the premises for rent on the Trade Me and NZ Flatmates platforms.
- The tenant answered the advertisement and communicated with Mr Oliver on email and WhatsApp. Mr Oliver WhatsApped the tenant: I'm sure you will be happy to live in the apartment with the interior of the apartment If you can come up with the Bond fee right now. I will secure the apartment for you and also get the keys and the document ship out through FedEx courier service to your present home address and get back to you with the shipping confirmation tracking number and promise to me and my family when you move into the apartment you will have the rent paid Let me know if that's fine by you okay
- The tenant says she accepted the landlord’s offer and paid the landlord $1,200.00 for bond and $1,800.00 in rent.
- However, shortly afterwards, the landlord advised that his wife was unwell, and they had decided to sell the apartment and return the tenant’s money: We have decided to sell out the apartment and give back all the money you paid in advance please try and understand me if I have any means I won't have done this but please try and understand me deeply we really need money to put her back to life and the property is our only hope for now to raise up money for all her medications. Discussion
- The six essential elements for a valid and enforceable contract are offer, acceptance, consideration, intention to create legal relations, and capacity. 1
- I am satisfied on the balance of probabilities that each element existed and that there was a binding tenancy agreement. The landlord offered to rent the apartment. The tenant accepted the offer and provided consideration by way of bond and rent in advance. Both parties had capacity and intended to create legal relations. 1 Ian Bassett Contract Law in New Zealand – Lawyers’ Handbook (Southern Cross Publishing, Auckland, 2007 at 3.
- The agreement was not in writing. However, under s 13C of the Residential Tenancies Act 1986, the agreement is still enforceable: 13C Tenancy agreements not unenforceable on grounds not in writing Notwithstanding anything to the contrary in any other enactment, no tenancy agreement, or variation or renewal of a tenancy agreement, shall be unenforceable on the grounds that it is not in writing. Conclusion
- There was binding tenancy agreement.
- The landlord received $3,000.00 from the tenant for a tenancy at the premises. That tenancy never commenced because the landlord repudiated the contract after receiving the tenant’s money.
- It is obvious the landlord must repay the tenant the money she paid for the tenancy. The landlord advised the tenant he would pay the tenant her money back but is yet to do so.
- An order is made requiring Mr Oliver to repay the tenant her $3,000.00.
- This order can be enforced in the District Court if necessary. Filing fee
- Because the tenant has wholly succeeded with the claim the landlord must reimburse the filing fee. Non-publication
- The tenant has asked for non-publication of her name and identifying details.
- 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.
- The tenant has wholly succeeded in the proceedings. I do not consider that publication is in the public interest or is justified by the tenant’s conduct or any other circumstances.
- It follows, non-publication is ordered.