What was Tenancy Tribunal case 4979381 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 4979381?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4979381?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4979381?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11263346-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4979381 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 4979381?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4979381?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4979381?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11263346-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4979381 — Healthy homes

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Applicant and Respondent’s names and identifying details.
[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] at 11:59pm, Monday, 13 January 2025.
The respondent’s claim is dismissed.

Reasons

Both parties attended the hearing.
The applicant was represented by legal counsel. The Tribunal gave permission for the landlord to have legal representation on 3 September 2024 given the nature and complexity of the issue involved. See section 93(3)(a) Residential Tenancies Act 1986 (RTA).
[The respondent] appeared for the respondent. They requested permission for Ray Wihapi and Frances McKay to represent them at the hearing. Mr Wihapi is the general manager of a local iwi and Ms Mckay works at Poutiri Wellness Centre as a Housing Navigator and Advocate. Mr Wihapi and Ms McKay have been assisting the respondent to provide wrap around support. The applicant opposed the respondent being represented by Mr Wihapi and Ms McKay. I granted the respondent permission be represented due to the nature and complexity of the issue involved. I also considered it fair to ensure equality of arms, as the applicant has legal counsel.
The applicant seeks an order for immediate possession.
The respondent has filed a cross-application for unlawful termination, compensation and exemplary damages.
Each party must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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.

Should the landlord be granted possession of the tenancy address?

There is a tenancy agreement dated 13 March 2024 between the applicant as landlord and Te Tuinga Whanau Support Services Trust (“the Trust”) as tenant. It is for a fixed-term tenancy expiring on 15 March 2029. The person who signed the agreement is Alazay Noble.
The Trust subsequently sublet the property to the respondent. The tenant advised there is a separate subletting agreement between themselves and the Trust. A copy was not submitted with the tenant’s cross-application.
The applicant claims that the tenancy agreement between themselves and the Trust is null and void because Alazay Noble did not have authority to sign the agreement on behalf of the Trust. In support of this, the applicant submitted an email from the Trust’s lawyer, which states “the person that allegedly executed any such documents neither had actual nor ostensible authority to do so.”
The respondent did not submit any evidence to counter the applicant’s claim that Alazay Noble did not have authority to sign the tenancy agreement on behalf of the Trust. The respondent said that if they had known about the email from the Trust’s lawyer and had more time, they would have investigated this issue. The Notice of Hearing and accompanying documents filed by the applicant, including the email from the Trust’s lawyer, were posted to the respondent at the tenancy address on 2 September 2024. This matter previously came before the Tribunal on 30 October 2024. An order granting the applicant possession was made on this date. The order referenced the email from the Trust’s lawyer and its contents. I am satisfied that the respondent has had appropriate notice of the email from the Trust’s lawyer and sufficient time to prepare a response.
On the balance of probabilities, I am satisfied that Alazay Noble did not have apparent or ostensible authority to represent the Trust for the purpose of signing the tenancy agreement between the Trust and the applicant. Therefore, I am setting aside this agreement under section 78(1)(g) Residential Tenancies Act 1986 (RTA) on the basis that it was induced by fraud or misrepresentation.
As a result of my finding that Alazay Noble did not have permission to sign the agreement with the applicant on behalf of the Trust and decision to set aside this agreement, it follows that neither Alazay Noble nor the Trust had authority to sublet the property to the respondent. Therefore, any agreement purporting to sublet the property to the respondent is of no effect and the respondent has no rights of occupation. In these circumstances, I make an order granting possession of the property to the applicant under section 65 RTA.
The applicant requested that possession be granted to them immediately. I declined to do this. I have sympathy for the respondent’s position. They were not to know that Alazay Noble did not have the relevant authority to bind the Trust. It is almost Christmas time and finding a new tenancy at this time of year is likely to be difficult. The landlord did not claim that the respondent was damaging the property and the photographs of the property taken during a healthy homes inspection show that that is clearly not the case. In all the circumstances, I consider it reasonable to set the date for possession after the court closure period for Christmas and New Year. The possession order will take effect at 11:59pm, Monday, 13 January 2025.
As a result of my decision that the respondent has no rights of occupation at the tenancy address, it follows that their claim for unlawful termination must fail. Suppression
The applicant has been substantially successful in their claim and therefore, I order that their name and identifying details be suppressed. See section 95A(1) RTA.
The respondent has applied for suppression. They have not been wholly or substantially successful in their claim however, I make an order suppressing their name and identifying details under section 95A(4) RTA. The respondent claims that publication would make it difficult for them to find a new tenancy. I consider that people might mistakenly associate the actions of Alazay Noble with the respondent, which could reflect poorly on the respondent and make it difficult to find a new tenancy. There is no allegation that the respondent has behaved poorly during the time they have been living at the property. I consider their interests outweigh the public’s interest in disclosing their name. Filing fee
The applicant has not been wholly successful in their claim as I have declined to grant them immediate possession as requested. Therefore, I have a discretion to order that the respondent reimburse them the filing fee. See section 102(4) RTA. The only reason the respondent is before the Tribunal is because of the negative actions of a third party. I do not consider that this is an appropriate case to order that the respondent to reimburse the applicant the filing fee and I decline to do so.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Applicant and Respondent’s names and identifying details.
[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] at 11:59pm, Monday, 13 January 2025.
The respondent’s claim is dismissed.

Reasons

Both parties attended the hearing.
The applicant was represented by legal counsel. The Tribunal gave permission for the landlord to have legal representation on 3 September 2024 given the nature and complexity of the issue involved. See section 93(3)(a) Residential Tenancies Act 1986 (RTA).
[The respondent] appeared for the respondent. They requested permission for Ray Wihapi and Frances McKay to represent them at the hearing. Mr Wihapi is the general manager of a local iwi and Ms Mckay works at Poutiri Wellness Centre as a Housing Navigator and Advocate. Mr Wihapi and Ms McKay have been assisting the respondent to provide wrap around support. The applicant opposed the respondent being represented by Mr Wihapi and Ms McKay. I granted the respondent permission be represented due to the nature and complexity of the issue involved. I also considered it fair to ensure equality of arms, as the applicant has legal counsel.
The applicant seeks an order for immediate possession.
The respondent has filed a cross-application for unlawful termination, compensation and exemplary damages.
Each party must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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.

Should the landlord be granted possession of the tenancy address?

There is a tenancy agreement dated 13 March 2024 between the applicant as landlord and Te Tuinga Whanau Support Services Trust (“the Trust”) as tenant. It is for a fixed-term tenancy expiring on 15 March 2029. The person who signed the agreement is Alazay Noble.
The Trust subsequently sublet the property to the respondent. The tenant advised there is a separate subletting agreement between themselves and the Trust. A copy was not submitted with the tenant’s cross-application.
The applicant claims that the tenancy agreement between themselves and the Trust is null and void because Alazay Noble did not have authority to sign the agreement on behalf of the Trust. In support of this, the applicant submitted an email from the Trust’s lawyer, which states “the person that allegedly executed any such documents neither had actual nor ostensible authority to do so.”
The respondent did not submit any evidence to counter the applicant’s claim that Alazay Noble did not have authority to sign the tenancy agreement on behalf of the Trust. The respondent said that if they had known about the email from the Trust’s lawyer and had more time, they would have investigated this issue. The Notice of Hearing and accompanying documents filed by the applicant, including the email from the Trust’s lawyer, were posted to the respondent at the tenancy address on 2 September 2024. This matter previously came before the Tribunal on 30 October 2024. An order granting the applicant possession was made on this date. The order referenced the email from the Trust’s lawyer and its contents. I am satisfied that the respondent has had appropriate notice of the email from the Trust’s lawyer and sufficient time to prepare a response.
On the balance of probabilities, I am satisfied that Alazay Noble did not have apparent or ostensible authority to represent the Trust for the purpose of signing the tenancy agreement between the Trust and the applicant. Therefore, I am setting aside this agreement under section 78(1)(g) Residential Tenancies Act 1986 (RTA) on the basis that it was induced by fraud or misrepresentation.
As a result of my finding that Alazay Noble did not have permission to sign the agreement with the applicant on behalf of the Trust and decision to set aside this agreement, it follows that neither Alazay Noble nor the Trust had authority to sublet the property to the respondent. Therefore, any agreement purporting to sublet the property to the respondent is of no effect and the respondent has no rights of occupation. In these circumstances, I make an order granting possession of the property to the applicant under section 65 RTA.
The applicant requested that possession be granted to them immediately. I declined to do this. I have sympathy for the respondent’s position. They were not to know that Alazay Noble did not have the relevant authority to bind the Trust. It is almost Christmas time and finding a new tenancy at this time of year is likely to be difficult. The landlord did not claim that the respondent was damaging the property and the photographs of the property taken during a healthy homes inspection show that that is clearly not the case. In all the circumstances, I consider it reasonable to set the date for possession after the court closure period for Christmas and New Year. The possession order will take effect at 11:59pm, Monday, 13 January 2025.
As a result of my decision that the respondent has no rights of occupation at the tenancy address, it follows that their claim for unlawful termination must fail. Suppression
The applicant has been substantially successful in their claim and therefore, I order that their name and identifying details be suppressed. See section 95A(1) RTA.
The respondent has applied for suppression. They have not been wholly or substantially successful in their claim however, I make an order suppressing their name and identifying details under section 95A(4) RTA. The respondent claims that publication would make it difficult for them to find a new tenancy. I consider that people might mistakenly associate the actions of Alazay Noble with the respondent, which could reflect poorly on the respondent and make it difficult to find a new tenancy. There is no allegation that the respondent has behaved poorly during the time they have been living at the property. I consider their interests outweigh the public’s interest in disclosing their name. Filing fee
The applicant has not been wholly successful in their claim as I have declined to grant them immediate possession as requested. Therefore, I have a discretion to order that the respondent reimburse them the filing fee. See section 102(4) RTA. The only reason the respondent is before the Tribunal is because of the negative actions of a third party. I do not consider that this is an appropriate case to order that the respondent to reimburse the applicant the filing fee and I decline to do so.

Tenancy Tribunal case 4979381 — Healthy homes

At a glance

Tenancy Tribunal case 4979381 — Healthy homes

At a glance

Claims & awards

Order

Reasons

Should the landlord be granted possession of the tenancy address?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the landlord be granted possession of the tenancy address?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions