Published tribunal order
Tenancy Tribunal case 4925753 — Rent arrears at 21 Peel Place, Wainuiomata, Lower Hutt 5014
Decided 13 Aug 2024 · Published 13 Aug 2024 · Application 4925753
- Rent arrears
Order
- [The tenant/s] must pay Oxygen.Co.Nz Limited As Agent For Neil Alan Harvey $6,980.44 immediately, in accordance with the following table:
Reasons
- Both parties attended the hearing. Ms Hole and Ms Seals represented the landlord in this application for rent arrears.
- This tenancy commenced in January 2024. Unfortunately, since that time there have been some rent payments that have not been paid and/or received. Several Mr Tapara agrees with, others he says he has paid. This claim therefore is to clarify the actual amount outstanding in rent arrears.
- Mr Tapara agrees that he owes $2,320 in rent arrears comprised of payments due 20 March and 10 July he has not paid. Therefore, that amount is ordered by consent.
- He also says that on 24 January he made a payment of $3,480 which comprised of the bond payment ($2,320) and two weeks rent ($1,160). This payment was made to the bank account of Full House, the original property manager.
- He also says he paid $1,160 on 12 June directly to Oxygen. The account number has been confirmed.
- Ms Seals says that neither of these payments have been received.
- At the hearing I took the oral evidence from the parties. I then allowed them further time to file all documentary evidence they have available in support of their positions. I specifically requested Mr Tapara attend his bank and obtain a certified copy of the bank statement to verify the funds left his accounts. He has advised the Tribunal he was not able to do that.
- I therefore am tasked with assessing, on the evidence before me, whether the disputed payments were made and received.
- The following documentary evidence has been provided in support of the contention that the payments have not been made: a. Oxygen’s bank statement on 12 June 2024 showing that no payment of $1,160 was made from an account in the name of Mr Tapara on that date. b. Full House’s bank statement between 1/1/24 and 2/5/24 showing that no amounts of $3,480 were received over that period.
- The following documentary evidence has been provided in support of the contention that the payments have been made: a. A letter from TSB dated 31 July 2024 stating that on 24 January 2024 Mr Tapara made a payment of $3,480 to the account confirmed to be Full House’s account. b. A letter from TSB dated 2 August that states that on 12 June Mr Tapara made a payment of $1160 to the account confirmed to be Oxygen’s account. c. His bank statements for the relevant period.
- Ms Seals questions the veracity of the TSB letters as they are not signed and sent on three different dates. She also points out that the statements they go from Mr Tapara allegedly showing the payments have differing fonts for the specific payments. She further notes that when the payments were first questioned they did not receive clear evidence as to why, it was only when the mediation was scheduled that they received the allegedly corroborating documents.
- I note that Mr Tapara told me he had to go into the bank to request a statement with his wife because it is a joint account, however the letters from TSB record his name only as the recipient of the letter and the account name. The law and discussion
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the party bringing the claim (the applicant, that is the landlord in this case), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, 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 likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
- 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.
- The District Court has clearly stated that rent cannot be considered as paid until it is received by the landlord. Where the landlord can establish rent has not been received, it is deemed not paid: Where the evidence establishes that the rent has not been received by the landlord, the Tribunal is in error to find that the rent was paid. It is a fundamental obligation on the tenant to pay the landlord. Where a landlord can establish, as the appellant has, that the rent has not been received, then the tenant is responsible for ensuring that the payment is received. A payment cannot be said to have been made if it has not been received. 1
- Having carefully assessed the evidence provided, I am satisfied that the funds have not reached the landlord’s account. Accordingly, they are not at law considered paid. Mr Tapara therefore remains liable for these amounts. 2 The orders are made as sought.
- As the landlord was successful in their claim, I must reimburse the filing fee. 3