What was Tenancy Tribunal case 4929854 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4929854?

Cleaning: $530.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $11,775.00 awarded to landlord; Rubbish Removal: $300.00 awarded to landlord; Water Rates: $179.57 awarded to landlord

What type of tenancy dispute was case 4929854?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4929854?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10864959-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4929854 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4929854?

Cleaning: $530.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $11,775.00 awarded to landlord; Rubbish Removal: $300.00 awarded to landlord; Water Rates: $179.57 awarded to landlord

What type of tenancy dispute was case 4929854?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4929854?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10864959-Tribunal_Order_Redacted.pdf.

1 Lynngate Place, Hillcrest, Auckland 0627 Tenancy Tribunal Case 4929854 — Rent arrears

Claims and awards in Tenancy Tribunal application 4929854 — net $12,811.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 20 August 2024	$11,775.00	Rent arrears to 20 August 2024
Rubbish removal	$300.00	Rubbish removal
Cleaning of swimming pool	$530.00	Cleaning of swimming pool
Filing fee reimbursement	$27.00	Filing fee reimbursement
Water rates	$179.57	Water rates
Net award	$12,811.57
Total payable by Tenant to Landlord	$12,811.57

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
Kaiaarahi Smith and Katie Yates must pay [The landlord/s] $12,811.57 immediately, calculated as shown in the table below:

Reasons

The landlord attended the hearing which took place on 30 August 2024. Mr Smith, one of the tenants, attended the hearing and confirmed that he had authority to represent the other tenant, Ms Yates.
The landlord’s initial application was for termination of the tenancy, rent arrears and water rates. However, the tenancy had terminated by the time of the hearing and the claim for termination of the tenancy was withdrawn.
At the hearing, the landlord made additional claims for cleaning the swimming pool, rubbish removal and lawn and garden work. The tenant consented to those claims being heard. Unfortunately, the parties did not have the necessary information to support those claims, including the tenancy agreement, and directions were issued for relevant documents to be sent to the Tribunal copying the other party.
The landlord also sought refund of the bond. However, from the limited information available to the Tribunal from the Bond Centre, the bond has already been refunded. If the parties have any queries regarding the bond, they should direct them to the Bond Centre.

How much is owed for water rates?

The tenancy ended on 20 August 2024. The landlord is claiming $179.57 in unpaid water rates. At the hearing, the tenant agreed that this amount is owing. This claim is proved and $179.57 is awarded for water rates.

How much is owed for rent?

The tenancy was a fixed-term tenancy commencing for a period of one year on 23 May 2023. On the expiry date, the tenancy became a periodic tenancy until it ended on 20 August 2024.
The landlord provided rent records in the form of a rent ledger showing that the arrears when the tenancy ended were $15,700. The tenant disputed the amount of the arrears for the following reasons: a. The tenant says they were asked to move out in April 2024 and vacated the premises for a period of 5 weeks. The tenant asserts that rent should not be payable during that time; b. The tenant says it had been agreed with the landlord that he would be paid for some work he did on the property. The tenant says he invoiced the landlord but the sum was not paid. The tenant says that amount should be deducted from the sum owing; and c. The tenant says they made additional payments to those set out in the rent ledger including a sum of $2,000 from a third party on their behalf.

Was the tenancy terminated in April 2024?

The tenant says that they were asked to move out of the property by the landlord in April 2024 and that they did so for a period of 5 weeks. The tenant says that he attended the property with the landlord for a final inspection and that was when the landlord asked them to move back in, which they did. The tenant asserts that the rent for this period should be deducted from the sum due.
The landlord denies instructing the tenant to leave the premises. He says the tenant had previously told him that they had his permission to move out and end the tenancy. The landlord says he would not have given the tenant permission to do so because the tenancy was for a fixed term.
In my directions of 30 August 2024, the tenant was asked to provide messages or other communications between the parties to support their claim that they were asked to move out. These documents have not been provided.
I do not accept that in April 2024, the landlord terminated the tenancy or that there was agreement between the parties that the tenancy would end.

Should the amount owing be deducted for work performed by the tenant?

The tenant says in August 2023 he fixed a window at the premises. The tenant says the landlord agreed that he would be paid $50 for this work. The tenant says he sent an invoice to the landlord but did not receive payment and that this amount should be set off against the rent owing.
In my directions of 30 August 2024, I asked the tenant to provide the invoice. This document was not provided.
I find there is insufficient evidence to support this claim.

Did the tenant make additional payments than those stated in the rent ledger?

The tenant says that they made additional payments than those contained in the rent ledger. The landlord says that the tenant had said that Te Puna Hauora o Te Raki Paewhenua Society Incorporated had made a payment of their behalf. The landlord provided a letter from Te Puna Hauora o Te Raki Paewhenua Society Incorporated stating that it did not make such a payment.
I find there is insufficient evidence to support this claim.

Did the landlord take sufficient steps to mitigate its losses?

Section 49 of the Residential Tenancies Act 1986 (RTA) provides:
Mitigation of damage or loss Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The question then becomes, what are the rules of law relating to mitigation of loss or damage following a contract breach? The rules of law are summarised in Halsbury’s Laws of England (4th ed, 1975) vol 12 at [1193]–[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. “The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.”
In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689, Lord Haldane described the rule as to mitigation of loss as follows: That the law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate is a question of fact dependent upon the particular circumstances of each case.
In the case of Huang v Ashworth [2024] NZDC 15726, the District Court confirmed there is a duty to mitigate for rent arrears. The Court confirmed the test of what the landlord ought to do to mitigate its loss is a factual one and depends on: a. Whether the landlord took all reasonable steps to mitigate its loss; and b. More particularly, whether it acted reasonably having regard to all the circumstances of the case.
Accordingly, where the tenant fails to pay rent owing, there is an obligation on the landlord to mitigate the loss. This can be achieved by not allowing the arrears to continue to accrue, instead ending the tenancy and reletting the premises thereby preventing ongoing loss.
I note that the landlord was entitled, at any time from the point when the rent was 21 days or more in arrears (in this case 09 January 2024) to apply to the Tribunal under section 55(1)(a) or s.56 of the RTA to have the tenancy terminated. However, the landlord did not lodge the application until 03 July 2024, almost 6 months after the application could have been made.
The landlord was asked at the hearing what steps were taken to recover the rent arrears. The landlord advised that he sent email messages to the tenant requesting payment. The landlord provided an email sent to the tenant on 22 June 2024 when rent arrears had reached $10,200.
I consider the landlord should have done more to mitigate its losses and that a landlord, acting reasonably, would have taken steps much earlier than 03 July 2024 to terminate the tenancy. I have applied a reduction of 25% to the rent arrears to reflect the landlord’s failure to mitigate its losses.

Did the tenant comply with their obligations at the end of the tenancy?

Section 40(1)(e)(ii)-(v) of the RTA provides that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The landlord has provided photographs showing that the tenant did not remove all rubbish and has provided an invoice for this work. This claim is proved and the amount of $300 (including GST) is awarded for this claim.
The tenancy agreement provides that the tenant was to maintain cleanliness of the swimming pool. The landlord has provided evidence that it cleaned the pool at the start of the tenancy. The landlord provided photographs showing that the swimming pool was left in a poor state. The landlord has provided evidence in the form of email correspondence including a quote for treating the pool and acceptance of that quote. This claim is proved and the amount of $530 (including GST) is awarded for this claim.
The landlord has also claimed for work to the garden. In my directions of 30 August 2024, I requested photographs showing the gardens at the start of the tenancy and at the end of the tenancy. I have been provided with some photographs of the garden, but they are not before and after photographs. It is impossible for me to tell if the tenant failed to leave the garden reasonably clean and tidy compared to the start of the tenancy. This claim is dismissed.
[The applicant/s] has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee and granted the application for suppression.

Claims and awards in Tenancy Tribunal application 4929854 — net $12,811.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 20 August 2024	$11,775.00	Rent arrears to 20 August 2024
Rubbish removal	$300.00	Rubbish removal
Cleaning of swimming pool	$530.00	Cleaning of swimming pool
Filing fee reimbursement	$27.00	Filing fee reimbursement
Water rates	$179.57	Water rates
Net award	$12,811.57
Total payable by Tenant to Landlord	$12,811.57

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
Kaiaarahi Smith and Katie Yates must pay [The landlord/s] $12,811.57 immediately, calculated as shown in the table below:

Reasons

The landlord attended the hearing which took place on 30 August 2024. Mr Smith, one of the tenants, attended the hearing and confirmed that he had authority to represent the other tenant, Ms Yates.
The landlord’s initial application was for termination of the tenancy, rent arrears and water rates. However, the tenancy had terminated by the time of the hearing and the claim for termination of the tenancy was withdrawn.
At the hearing, the landlord made additional claims for cleaning the swimming pool, rubbish removal and lawn and garden work. The tenant consented to those claims being heard. Unfortunately, the parties did not have the necessary information to support those claims, including the tenancy agreement, and directions were issued for relevant documents to be sent to the Tribunal copying the other party.
The landlord also sought refund of the bond. However, from the limited information available to the Tribunal from the Bond Centre, the bond has already been refunded. If the parties have any queries regarding the bond, they should direct them to the Bond Centre.

How much is owed for water rates?

The tenancy ended on 20 August 2024. The landlord is claiming $179.57 in unpaid water rates. At the hearing, the tenant agreed that this amount is owing. This claim is proved and $179.57 is awarded for water rates.

How much is owed for rent?

The tenancy was a fixed-term tenancy commencing for a period of one year on 23 May 2023. On the expiry date, the tenancy became a periodic tenancy until it ended on 20 August 2024.
The landlord provided rent records in the form of a rent ledger showing that the arrears when the tenancy ended were $15,700. The tenant disputed the amount of the arrears for the following reasons: a. The tenant says they were asked to move out in April 2024 and vacated the premises for a period of 5 weeks. The tenant asserts that rent should not be payable during that time; b. The tenant says it had been agreed with the landlord that he would be paid for some work he did on the property. The tenant says he invoiced the landlord but the sum was not paid. The tenant says that amount should be deducted from the sum owing; and c. The tenant says they made additional payments to those set out in the rent ledger including a sum of $2,000 from a third party on their behalf.

Was the tenancy terminated in April 2024?

The tenant says that they were asked to move out of the property by the landlord in April 2024 and that they did so for a period of 5 weeks. The tenant says that he attended the property with the landlord for a final inspection and that was when the landlord asked them to move back in, which they did. The tenant asserts that the rent for this period should be deducted from the sum due.
The landlord denies instructing the tenant to leave the premises. He says the tenant had previously told him that they had his permission to move out and end the tenancy. The landlord says he would not have given the tenant permission to do so because the tenancy was for a fixed term.
In my directions of 30 August 2024, the tenant was asked to provide messages or other communications between the parties to support their claim that they were asked to move out. These documents have not been provided.
I do not accept that in April 2024, the landlord terminated the tenancy or that there was agreement between the parties that the tenancy would end.

Should the amount owing be deducted for work performed by the tenant?

The tenant says in August 2023 he fixed a window at the premises. The tenant says the landlord agreed that he would be paid $50 for this work. The tenant says he sent an invoice to the landlord but did not receive payment and that this amount should be set off against the rent owing.
In my directions of 30 August 2024, I asked the tenant to provide the invoice. This document was not provided.
I find there is insufficient evidence to support this claim.

Did the tenant make additional payments than those stated in the rent ledger?

The tenant says that they made additional payments than those contained in the rent ledger. The landlord says that the tenant had said that Te Puna Hauora o Te Raki Paewhenua Society Incorporated had made a payment of their behalf. The landlord provided a letter from Te Puna Hauora o Te Raki Paewhenua Society Incorporated stating that it did not make such a payment.
I find there is insufficient evidence to support this claim.

Did the landlord take sufficient steps to mitigate its losses?

Section 49 of the Residential Tenancies Act 1986 (RTA) provides:
Mitigation of damage or loss Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The question then becomes, what are the rules of law relating to mitigation of loss or damage following a contract breach? The rules of law are summarised in Halsbury’s Laws of England (4th ed, 1975) vol 12 at [1193]–[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. “The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.”
In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689, Lord Haldane described the rule as to mitigation of loss as follows: That the law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate is a question of fact dependent upon the particular circumstances of each case.
In the case of Huang v Ashworth [2024] NZDC 15726, the District Court confirmed there is a duty to mitigate for rent arrears. The Court confirmed the test of what the landlord ought to do to mitigate its loss is a factual one and depends on: a. Whether the landlord took all reasonable steps to mitigate its loss; and b. More particularly, whether it acted reasonably having regard to all the circumstances of the case.
Accordingly, where the tenant fails to pay rent owing, there is an obligation on the landlord to mitigate the loss. This can be achieved by not allowing the arrears to continue to accrue, instead ending the tenancy and reletting the premises thereby preventing ongoing loss.
I note that the landlord was entitled, at any time from the point when the rent was 21 days or more in arrears (in this case 09 January 2024) to apply to the Tribunal under section 55(1)(a) or s.56 of the RTA to have the tenancy terminated. However, the landlord did not lodge the application until 03 July 2024, almost 6 months after the application could have been made.
The landlord was asked at the hearing what steps were taken to recover the rent arrears. The landlord advised that he sent email messages to the tenant requesting payment. The landlord provided an email sent to the tenant on 22 June 2024 when rent arrears had reached $10,200.
I consider the landlord should have done more to mitigate its losses and that a landlord, acting reasonably, would have taken steps much earlier than 03 July 2024 to terminate the tenancy. I have applied a reduction of 25% to the rent arrears to reflect the landlord’s failure to mitigate its losses.

Did the tenant comply with their obligations at the end of the tenancy?

Section 40(1)(e)(ii)-(v) of the RTA provides that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The landlord has provided photographs showing that the tenant did not remove all rubbish and has provided an invoice for this work. This claim is proved and the amount of $300 (including GST) is awarded for this claim.
The tenancy agreement provides that the tenant was to maintain cleanliness of the swimming pool. The landlord has provided evidence that it cleaned the pool at the start of the tenancy. The landlord provided photographs showing that the swimming pool was left in a poor state. The landlord has provided evidence in the form of email correspondence including a quote for treating the pool and acceptance of that quote. This claim is proved and the amount of $530 (including GST) is awarded for this claim.
The landlord has also claimed for work to the garden. In my directions of 30 August 2024, I requested photographs showing the gardens at the start of the tenancy and at the end of the tenancy. I have been provided with some photographs of the garden, but they are not before and after photographs. It is impossible for me to tell if the tenant failed to leave the garden reasonably clean and tidy compared to the start of the tenancy. This claim is dismissed.
[The applicant/s] has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee and granted the application for suppression.

Tenancy Tribunal case 4929854 — Rent arrears at 1 Lynngate Place, Hillcrest, Auckland 0627

At a glance

Tenancy Tribunal case 4929854 — Rent arrears at 1 Lynngate Place, Hillcrest, Auckland 0627

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for water rates?

How much is owed for rent?

Was the tenancy terminated in April 2024?

Should the amount owing be deducted for work performed by the tenant?

Did the tenant make additional payments than those stated in the rent ledger?

Did the landlord take sufficient steps to mitigate its losses?

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for water rates?

How much is owed for rent?

Was the tenancy terminated in April 2024?

Should the amount owing be deducted for work performed by the tenant?

Did the tenant make additional payments than those stated in the rent ledger?

Did the landlord take sufficient steps to mitigate its losses?

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions