What was Tenancy Tribunal case 4944916 about?

The tribunal order states: The tenancy of Richard Dorset Schofield and Bernadette Johanne Schofield at

How much money was awarded in case 4944916?

Rent Arrears: $9,800.00 awarded to landlord

What type of tenancy dispute was case 4944916?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4944916?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10720317-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4944916 about?

The tribunal order states: The tenancy of Richard Dorset Schofield and Bernadette Johanne Schofield at

How much money was awarded in case 4944916?

Rent Arrears: $9,800.00 awarded to landlord

What type of tenancy dispute was case 4944916?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4944916?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10720317-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4944916 — Rent arrears

Claims and awards in Tenancy Tribunal application 4944916 — net $7,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$9,800.00	Rent arrears
Net award	$7,000.00
Total payable by Tenant to Landlord	$7,000.00

Order

The tenancy of Richard Dorset Schofield and Bernadette Johanne Schofield at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], immediately.
Richard Dorset Schofield and Bernadette Johanne Schofield must pay [The landlord/s] $7,000.00 immediately, being rent arrears to 18 August 2024.
The Bond Centre is to pay the bond of $2,800.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended this video hearing on 18 August 2024.
The landlord has applied for termination of the tenancy for abandonment, rent arrears, exemplary damages and refund of the bond.
The law relating to the issues before the Tribunal is contained in the Residential Tenancies Act 1986.
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.

Should the tenancy be terminated?

The Tribunal may terminate the tenancy where the premises have been abandoned and rent is in arrear at the hearing date. See section 61 RTA. A tenancy is abandoned where the tenant leaves the premises without reasonable excuse, not intending to return or to meet their obligations, and fails to notify the landlord.
This was a fixed term tenancy through until 21 November 2024.
The landlord became aware (or ought to have been aware) that the tenant had abandoned the premises when he received notice from the tenant on 25 March 2024 that the tenant would be terminating the tenancy on 10 May 2024.
The rent was in arrears on 10 May 2024.
The tenant said that he had spoken with the landlord’s agent prior to sending the notice of termination. The tenant said that he was told that they only cost to the tenant in terminating the fixed term tenancy would be the equivalent of one weeks rent to cover the costs incurred in finding a new tenant.
The landlord said that the tenant had signed the fixed term tenancy and that he had expected the tenant to remain for that term and to pay the rent.
The landlord agreed that the tenant had been told that he would have to pay for those costs by his agent, but refuted any suggestion that the tenant’s liability for rent would end then. That liability would last until a new tenant had been found or the end of the fixed term whichever occurred first.
The standard of proof in this matter is the balance of probabilities. What is more likely than not.
The tenant was contractually bound to a fixed term contract. There was no benefit to the landlord in releasing a tenant in a fixed term contract, without first having obtained a replacement tenant. That premise is well known to owners and property managers. It is an issue that comes before the Tribunal frequently.
In this matter, I prefer the evidence of the landlord. I consider that it is more likely than not that upon asking for a release from the fixed term, that the tenant was told that he would remain liable for the costs of obtaining a new tenant and the rent until such time as a new tenant was found.
As the premises have been abandoned, and rent is in arrear, the tenancy is terminated immediately.
It is clear from s.61(3)(b) RTA that the tenant will remain liable for the rent on the premises until the date of the expiry of the fixed term or the commencement of a new tenancy of the premises, whichever is the earlier.

How much does the tenant owe?

The landlord provided rent records which prove the amount owing as of the date of this hearing is $9,800.00. Exemplary Damages
The landlord has applied for exemplary damages for the tenant having abandoned the tenancy whilst rent was in arrears.
Abandoning a tenancy whilst rent is in arrears is an unlawful act (see s.61(5) RTA)
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA. In that regard, I note that it is the act itself that needs to be intentional, not an intention to act unlawfully.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of
In considering an award of exemplary damages s.109 RTA provides that the Tribunal must have regard to: • The intention of the person who committed the unlawful act; and • The effect of the unlawful act; and • The interests of the person against whom the act was committed; and • The public interest.
Where a decision is made to award exemplary damages, the Tribunal’s usual approach to exemplary damages is to award one third of the maximum unless there are aggravating or mitigating factors in play (see Wellington Property Management Limited v Hardie (2022) NZTT 4399281, 4374781).
I accept in this case that the tenant mistakenly thought that he was entitled to terminate the fixed term tenancy. I do not consider that the tenant has intentionally breached his obligations and accordingly the application for exemplary damages is dismissed.
The landlord has applied for name suppression. The landlord has been substantially successful in this matter and suppression of the landlord name and details is ordered.

Claims and awards in Tenancy Tribunal application 4944916 — net $7,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$9,800.00	Rent arrears
Net award	$7,000.00
Total payable by Tenant to Landlord	$7,000.00

Order

The tenancy of Richard Dorset Schofield and Bernadette Johanne Schofield at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], immediately.
Richard Dorset Schofield and Bernadette Johanne Schofield must pay [The landlord/s] $7,000.00 immediately, being rent arrears to 18 August 2024.
The Bond Centre is to pay the bond of $2,800.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended this video hearing on 18 August 2024.
The landlord has applied for termination of the tenancy for abandonment, rent arrears, exemplary damages and refund of the bond.
The law relating to the issues before the Tribunal is contained in the Residential Tenancies Act 1986.
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.

Should the tenancy be terminated?

The Tribunal may terminate the tenancy where the premises have been abandoned and rent is in arrear at the hearing date. See section 61 RTA. A tenancy is abandoned where the tenant leaves the premises without reasonable excuse, not intending to return or to meet their obligations, and fails to notify the landlord.
This was a fixed term tenancy through until 21 November 2024.
The landlord became aware (or ought to have been aware) that the tenant had abandoned the premises when he received notice from the tenant on 25 March 2024 that the tenant would be terminating the tenancy on 10 May 2024.
The rent was in arrears on 10 May 2024.
The tenant said that he had spoken with the landlord’s agent prior to sending the notice of termination. The tenant said that he was told that they only cost to the tenant in terminating the fixed term tenancy would be the equivalent of one weeks rent to cover the costs incurred in finding a new tenant.
The landlord said that the tenant had signed the fixed term tenancy and that he had expected the tenant to remain for that term and to pay the rent.
The landlord agreed that the tenant had been told that he would have to pay for those costs by his agent, but refuted any suggestion that the tenant’s liability for rent would end then. That liability would last until a new tenant had been found or the end of the fixed term whichever occurred first.
The standard of proof in this matter is the balance of probabilities. What is more likely than not.
The tenant was contractually bound to a fixed term contract. There was no benefit to the landlord in releasing a tenant in a fixed term contract, without first having obtained a replacement tenant. That premise is well known to owners and property managers. It is an issue that comes before the Tribunal frequently.
In this matter, I prefer the evidence of the landlord. I consider that it is more likely than not that upon asking for a release from the fixed term, that the tenant was told that he would remain liable for the costs of obtaining a new tenant and the rent until such time as a new tenant was found.
As the premises have been abandoned, and rent is in arrear, the tenancy is terminated immediately.
It is clear from s.61(3)(b) RTA that the tenant will remain liable for the rent on the premises until the date of the expiry of the fixed term or the commencement of a new tenancy of the premises, whichever is the earlier.

How much does the tenant owe?

The landlord provided rent records which prove the amount owing as of the date of this hearing is $9,800.00. Exemplary Damages
The landlord has applied for exemplary damages for the tenant having abandoned the tenancy whilst rent was in arrears.
Abandoning a tenancy whilst rent is in arrears is an unlawful act (see s.61(5) RTA)
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA. In that regard, I note that it is the act itself that needs to be intentional, not an intention to act unlawfully.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of
In considering an award of exemplary damages s.109 RTA provides that the Tribunal must have regard to: • The intention of the person who committed the unlawful act; and • The effect of the unlawful act; and • The interests of the person against whom the act was committed; and • The public interest.
Where a decision is made to award exemplary damages, the Tribunal’s usual approach to exemplary damages is to award one third of the maximum unless there are aggravating or mitigating factors in play (see Wellington Property Management Limited v Hardie (2022) NZTT 4399281, 4374781).
I accept in this case that the tenant mistakenly thought that he was entitled to terminate the fixed term tenancy. I do not consider that the tenant has intentionally breached his obligations and accordingly the application for exemplary damages is dismissed.
The landlord has applied for name suppression. The landlord has been substantially successful in this matter and suppression of the landlord name and details is ordered.

Tenancy Tribunal case 4944916 — Rent arrears

At a glance

Tenancy Tribunal case 4944916 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

How much does the tenant owe?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

How much does the tenant owe?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions