What was Tenancy Tribunal case 4968734 about?

The tribunal order states: The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated,

How much money was awarded in case 4968734?

Rent Arrears: $5,700.00 awarded to landlord

What type of tenancy dispute was case 4968734?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4968734?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10861713-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4968734 about?

The tribunal order states: The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated,

How much money was awarded in case 4968734?

Rent Arrears: $5,700.00 awarded to landlord

What type of tenancy dispute was case 4968734?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4968734?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10861713-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4968734 — Rent arrears

Claims and awards in Tenancy Tribunal application 4968734 — net $5,700.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$5,700.00	Rent arrears
Net award	$5,700.00
Total payable by Tenant to Landlord	$5,700.00

Order

The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated, and possession is granted to Homesec Business Finance Limited, at 11.59 am on Thursday 17 October 2024.
[The tenant/s] must pay Homesec Business Finance Limited $5,700.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended this video hearing on 18 September 2024.
The tenanted premises are at [Tenancy address suppressed] (“the premises”).
Homesec Business Finance Limited (“the applicant”) was represented at the hearing by Ms Mirchandani.
The applicant holds a second mortgage secured over the title to the premises.
The owner of the premises, as recorded in the record of title, is Melissa Cheryl Fraser, also known in these proceedings as Melissa Panapa-Fraser (“the owner”).
The tenants of the premises are [The tenant/s] (“the tenants”). For reasons that will become apparent in this decision, I took the somewhat unusual step as the commencement of the proceedings of allowing the owner to represent the tenants, the tenants having made a request to the Tribunal for this to occur.
The tenancy of the premises commenced in 2020 and is current at the time of the hearing.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
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 applicant 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.
In this case, both parties have submitted documentary evidence including emails and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
It will be helpful to include a brief background to this matter, before moving to consider the application of the law to the facts.
The applicant advanced $126,600.00 to Wellington Engineering Proud Limited (“the borrower”) in 2023. That advance was secured in part, by a personal guarantee from the owner and a second mortgage to be secured over the title to the premises.
The borrower fell into arrears in repayment of the advance.
A notice pursuant to s.119 of the Property Law Act 2007 (“PLA”) was issued by the applicant and served on the owner. The notice records the security provided by the owner and the default made in repaying the advance by the borrower. The notice makes demand for payment as a result of the default.
The notice further records the consequences in the event that the default is not remedied. In particular, the notice records that the applicant may exercise the mortgagee’s power to enter into possession of the mortgaged land and to sell the mortgaged land. For the purposes of certainty, the “mortgaged land” and the premises are one and the same.
Service of the notice on the owner was conducted pursuant to a substituted service order of the High Court dated 14 March 2024.
The s.119 PLA notice has not been complied with by the owner and the applicant now seeks to enforce their rights under their second mortgage.
Section 137 PLA provides: 137 Exercise of power to enter into possession. (1) If a mortgagee becomes entitled under a mortgage, after compliance with subpart 5, to exercise a power to enter into possession of mortgaged land or goods, the mortgagee may exercise that power by-... (b) asserting management or control over the land or goods by requiring a lessee or occupier of the land, or a lessee or bailee of the goods, as the case may be, to pay to the mortgagee any rent or profits that would otherwise be payable to the current mortgagor; or......
The applicant has complied with subpart 5 of the PLA by serving the notice under s.119 PLA on the owner.
The owner has not complied with the s.119 PLA notice and accordingly, the applicant has become entitled to exercise a power to enter into possession of the secured land by asserting management or control over the land by requiring the lessee or occupier of the land to pay any rent that would otherwise be payable to the owner to the applicant.
Section 58 RTA provides that where a mortgage becomes entitled to possession as against a landlord, the mortgagee shall have the same rights as the landlord under the tenancy agreement or the RTA to give notice terminating the tenancy, as the landlord would have had if the tenancy had been a periodic tenancy.
On or about 27 May 2024, the applicant served a notice on the tenants. The notice required the tenants to pay rent owing by the tenants to the owner, directly to the applicant. The notice included a copy of the record of title to the premises, a copy of the relevant mortgage and a copy of s.137 PLA.
At this point it is appropriate to record that whilst the tenant attended the hearing, they had no direct knowledge of the background and that is the reason that the owner was invited to represent the tenant at the hearing.
Despite having received the notice to pay the rent to the applicant, the tenant has not done so. The evidence presented suggests that the tenant has continued to pay the rent directly to the owner. I wish to record that the tenant has been stuck in the middle of the dispute between the owner and the applicant and is essentially an innocent party. Analysis.
For the reasons given above, I consider that the applicant is entitled to possession of the premises.
Section 58(1)(c) RTA provides that where a mortgagee, becomes entitled to possession, it is deemed to have acquired the landlord’s interest in the land. The mortgagee will then have the same rights as the landlord under a tenancy to give notice terminating the tenancy, or to apply to the Tribunal for an order terminating the tenancy or an order for possession.
The applicant has applied to the Tribunal for orders terminating the tenancy and for rent arrears.
Rent was at least 21 days in arrears on the date the application was filed. See section 55(1)(a) RTA. Counsel for the applicant indicated that they would not oppose an extended notice period being provided to the tenant in these difficult circumstances. The tenancy is terminated at 11.59 am on Thursday 17 October 2024.
The applicant provided rent records which prove the amount owing at the end of the tenancy will be $5,700.00 if no further rent payments are received. For the avoidance of doubt, the tenant should in the interim period pay rent directly to the applicant. This will result in the amount owing to the applicant being less at the end of the tenancy.
The tenant applied for name suppression. Usually name suppression is only granted where a party has been wholly or substantially successful. The tenant has not been wholly or substantially successful. The Tribunal retains a residual discretion to grant name suppression where there is no public interest in the publication of the name. I do not consider that that any public interest would be served in publishing the tenants’ names. The tenants’ names, details and the address of the premises are suppressed.

Claims and awards in Tenancy Tribunal application 4968734 — net $5,700.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$5,700.00	Rent arrears
Net award	$5,700.00
Total payable by Tenant to Landlord	$5,700.00

Order

The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated, and possession is granted to Homesec Business Finance Limited, at 11.59 am on Thursday 17 October 2024.
[The tenant/s] must pay Homesec Business Finance Limited $5,700.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended this video hearing on 18 September 2024.
The tenanted premises are at [Tenancy address suppressed] (“the premises”).
Homesec Business Finance Limited (“the applicant”) was represented at the hearing by Ms Mirchandani.
The applicant holds a second mortgage secured over the title to the premises.
The owner of the premises, as recorded in the record of title, is Melissa Cheryl Fraser, also known in these proceedings as Melissa Panapa-Fraser (“the owner”).
The tenants of the premises are [The tenant/s] (“the tenants”). For reasons that will become apparent in this decision, I took the somewhat unusual step as the commencement of the proceedings of allowing the owner to represent the tenants, the tenants having made a request to the Tribunal for this to occur.
The tenancy of the premises commenced in 2020 and is current at the time of the hearing.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
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 applicant 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.
In this case, both parties have submitted documentary evidence including emails and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
It will be helpful to include a brief background to this matter, before moving to consider the application of the law to the facts.
The applicant advanced $126,600.00 to Wellington Engineering Proud Limited (“the borrower”) in 2023. That advance was secured in part, by a personal guarantee from the owner and a second mortgage to be secured over the title to the premises.
The borrower fell into arrears in repayment of the advance.
A notice pursuant to s.119 of the Property Law Act 2007 (“PLA”) was issued by the applicant and served on the owner. The notice records the security provided by the owner and the default made in repaying the advance by the borrower. The notice makes demand for payment as a result of the default.
The notice further records the consequences in the event that the default is not remedied. In particular, the notice records that the applicant may exercise the mortgagee’s power to enter into possession of the mortgaged land and to sell the mortgaged land. For the purposes of certainty, the “mortgaged land” and the premises are one and the same.
Service of the notice on the owner was conducted pursuant to a substituted service order of the High Court dated 14 March 2024.
The s.119 PLA notice has not been complied with by the owner and the applicant now seeks to enforce their rights under their second mortgage.
Section 137 PLA provides: 137 Exercise of power to enter into possession. (1) If a mortgagee becomes entitled under a mortgage, after compliance with subpart 5, to exercise a power to enter into possession of mortgaged land or goods, the mortgagee may exercise that power by-... (b) asserting management or control over the land or goods by requiring a lessee or occupier of the land, or a lessee or bailee of the goods, as the case may be, to pay to the mortgagee any rent or profits that would otherwise be payable to the current mortgagor; or......
The applicant has complied with subpart 5 of the PLA by serving the notice under s.119 PLA on the owner.
The owner has not complied with the s.119 PLA notice and accordingly, the applicant has become entitled to exercise a power to enter into possession of the secured land by asserting management or control over the land by requiring the lessee or occupier of the land to pay any rent that would otherwise be payable to the owner to the applicant.
Section 58 RTA provides that where a mortgage becomes entitled to possession as against a landlord, the mortgagee shall have the same rights as the landlord under the tenancy agreement or the RTA to give notice terminating the tenancy, as the landlord would have had if the tenancy had been a periodic tenancy.
On or about 27 May 2024, the applicant served a notice on the tenants. The notice required the tenants to pay rent owing by the tenants to the owner, directly to the applicant. The notice included a copy of the record of title to the premises, a copy of the relevant mortgage and a copy of s.137 PLA.
At this point it is appropriate to record that whilst the tenant attended the hearing, they had no direct knowledge of the background and that is the reason that the owner was invited to represent the tenant at the hearing.
Despite having received the notice to pay the rent to the applicant, the tenant has not done so. The evidence presented suggests that the tenant has continued to pay the rent directly to the owner. I wish to record that the tenant has been stuck in the middle of the dispute between the owner and the applicant and is essentially an innocent party. Analysis.
For the reasons given above, I consider that the applicant is entitled to possession of the premises.
Section 58(1)(c) RTA provides that where a mortgagee, becomes entitled to possession, it is deemed to have acquired the landlord’s interest in the land. The mortgagee will then have the same rights as the landlord under a tenancy to give notice terminating the tenancy, or to apply to the Tribunal for an order terminating the tenancy or an order for possession.
The applicant has applied to the Tribunal for orders terminating the tenancy and for rent arrears.
Rent was at least 21 days in arrears on the date the application was filed. See section 55(1)(a) RTA. Counsel for the applicant indicated that they would not oppose an extended notice period being provided to the tenant in these difficult circumstances. The tenancy is terminated at 11.59 am on Thursday 17 October 2024.
The applicant provided rent records which prove the amount owing at the end of the tenancy will be $5,700.00 if no further rent payments are received. For the avoidance of doubt, the tenant should in the interim period pay rent directly to the applicant. This will result in the amount owing to the applicant being less at the end of the tenancy.
The tenant applied for name suppression. Usually name suppression is only granted where a party has been wholly or substantially successful. The tenant has not been wholly or substantially successful. The Tribunal retains a residual discretion to grant name suppression where there is no public interest in the publication of the name. I do not consider that that any public interest would be served in publishing the tenants’ names. The tenants’ names, details and the address of the premises are suppressed.

Tenancy Tribunal case 4968734 — Rent arrears

At a glance

Tenancy Tribunal case 4968734 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions