What was Tenancy Tribunal case 5057789 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 5057789?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5057789?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 5057789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11089302-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5057789 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 5057789?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5057789?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 5057789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11089302-Tribunal_Order_Redacted.pdf.

5B Short Street, Claudelands, Hamilton 3214 Tenancy Tribunal Case 5057789 — 14-day notice

Order

An application for suppression has been made in this case and the Tribunal orders suppression of the tenant’s name and identifying details.
The landlord’s application is dismissed.

Reasons

Both parties attended the hearing by telephone.
The landlord’s application is for termination of the tenancy under section 55(1)(c)(iv) Residential Tenancy Act 1986 (“RTA”) on the basis that the tenant has assaulted an elderly, female neighbour of the premises (“the neighbour”). Standard of proof and evidence
In considering the landlord’s claim, the standard of proof is “on the balance of probabilities”. In other words, the landlord must establish with evidence that its claim is more likely than not. I have considered the landlord’s claim bearing in mind the standard of proof required.
I do not need to be completely certain, but I need to be more certain than uncertain. I have considered all the evidence presented, including oral testimony. I have weighed this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
The landlord’s application makes the serious allegation that the tenant assaulted the neighbour. The Tribunal needs to see a level of supporting evidence befitting the significance of such an allegation.
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.”
Section 97(4) RTA provides that: “... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law”.
It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require more robust evidence before finding the claim proved on the balance of probabilities.
While I have not referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, I have referred in this Order only to the most relevant or important evidence which has assisted the Tribunal in coming to its decision.
It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the necessary evidence. It is not the Tribunal’s responsibility to extract evidence.
Section 85(2) RTA requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined this application with this requirement in mind. Adjournment request
The tenant’s lawyer sought adjournment of the Tribunal’s hearing until after the criminal proceedings arising from the same incident were concluded. The Tribunal declined the tenant’s application and it is appropriate to record the reasons.
Firstly, section 55(1)(c) RTA is concerned with the safety and protection of the landlord, its agents and employees, and neighbours. It is important that the Tribunal deals with such applications without delay.
Secondly, the standard of proof required in the Tribunal is on the balance of probabilities, not beyond reasonable doubt as in a criminal court. It is therefore open to the Tribunal to come to a different conclusion on the evidence than the criminal court. The landlord’s claim and evidence
The landlord claims that the tenant assaulted the neighbour and submitted video evidence and confirmation that the police had charged the tenant with common assault.
The fact that the police have charged the tenant with a crime is not evidence of the tenant having committed that crime. The tenant is innocent of the charge unless and until the District Court finds him guilty. Evidence that the tenant has been charged and a Court date has been set are of no probative value in determining whether the tenant assaulted the neighbour.
The video evidence from two of the neighbour’s four cameras directed at the premises show: a. The tenant securing his son in the back seat of his car. b. The tenant reversing his car so that approximately the boot portion appears to enter the driveway of the neighbour. c. The neighbour rushing up to the car with a broom which she presses against the car. d. The tenant lowers his window to speak to the neighbour. e. The neighbour releases the broom and approaches the driver’s window to remonstrate with him. She flourishes the broom around the driver’s window. f. The tenant grabs hold of the broom and, after a tussle, pulls it into the car. g. The neighbour holds onto the broom and is pulled towards the driver’s window. h. The tenant’s hand is extended into the neighbour’s face and pushes her slightly aside before pushing her face so that she is pushed away from the car. i. The neighbour immediately leans forward into the driver’s window and appears to have an arm in the car as the tenant drives forward. j. She follows him as he slowly drives forward and continues to reach into the car with both hands to grapple with the tenant. k. The tenant backs slowly a short distance before driving off. l. The neighbour runs alongside the car for a few steps while holding onto the driver’s door. m. The neighbour examines her forearms and returns to her driveway.
From the neighbour pinning her broom against the tenant’s car to him driving away takes one minute.
The landlord explained that the tenant and the neighbour have been involved in disputes for over a year. Part of that dispute has concerned the tenant backing his car into the neighbour’s driveway. The landlord expressed the opinion that the tenant did this on this occasion to provoke the neighbour.
The landlord advised that the neighbour had suffered bruising but did not supply any photographic or other evidence to support the claim that the neighbour suffered injury. The tenant’s evidence
The tenant submitted carefully prepared evidence. Some of this related to the ongoing issues he has experienced with the neighbour, some related to issues with the fencing which the tenant claimed impacted on his ability to reverse his car without going slightly into the neighbour’s driveway. As noted during the hearing, the evidence surrounding the alleged assault is of primary concern to the Tribunal.
The tenant’s evidence in summary was that: a. There have been ongoing issues with the neighbour for 18 months. b. The neighbour has previously assaulted him six or seven times. c. He was concerned for the safety of himself and his young son. He acted in defence of himself and his son. He viewed the broom as a weapon and claimed that she had hit the car several times with it, causing grazing damage. d. The neighbour knocked his glasses off, tore buttons off his shirt and scratched him badly. He provided video evidence of scratches down his neck and arms that had drawn blood. e. He noted that the neighbour was not injured during the incident. f. The neighbour has been previously served with a criminal harassment warning by the police and has been trespassed from the premises. g. He provided letters from four neighbours attesting to his good character as a neighbour. Discussion and decision
From the video evidence, it is clear that the tenant used his fist to push the neighbour’s face. It is not clear that he punched her.
Assault is defined in section 2(1) of the Crimes Act 1961 (“CA”), as “the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has the present ability to effect his purpose”.
The Tribunal is satisfied on the balance of probabilities and on the evidence before it that the tenant has intentionally applied force to the neighbour and has therefore assaulted the neighbour as defined in section 2(1) CA.
However, the tenant has claimed that he acted in self-defence. Section 48(1) CA provides that “Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.”
On the evidence before the Tribunal, it is satisfied that the tenant was acting in defence of himself and his son and that the force used was reasonable in the circumstances as he believed them to be. There is nothing in the video evidence to indicate that the tenant acted maliciously.
It is reasonable that the tenant interpreted the neighbour pressing her broom against the car and then waving about his open window as threatening to himself and his son.
Given that he was seated in his car, reaching through his window, the tenant’s ability to have put any force into his actions was limited. The physical responses of the neighbour, the movements of her head and body, do not indicate that the tenant used any more than minimal force. The neighbour is an elderly woman and whatever force the tenant used did not deter her from following his car and repeatedly inserting herself into his window to continue the fracas.
The landlord has not therefore persuaded the Tribunal that the tenant has assaulted the neighbour as that offence is provided for in the CA. The Tribunal’s discretion
If the Tribunal is incorrect in that conclusion because it is unable to consider the defence under section 48(1) CA, then it is necessary to consider whether it is appropriate to exercise the discretion available to the Tribunal under section 55(2) RTA.
This section provides that the Tribunal may refuse to make the termination order sought by the landlord if it is satisfied that the breach has been remedied where it is capable of remedy, the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which section 55 RTA applies.
An assault is not a breach capable of remedy, nor is compensation payable to the landlord where it is a neighbour who has been assaulted.
In determining the exercise of the discretion in section 56(1)(c) RTA, the District Court in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, stated at [61]: “Factors which are relevant to whether it would be inequitable to refuse to terminate this tenancy include: • The history of the tenancy. • Whether there has been a persistent failure after repeated warnings. • Whether the history of breaches was such that it was unlikely the tenant would comply with their obligations in the future. • Whether the breach was inadvertent or deliberately committed. • The conduct of the landlord. • The gravity of the breach. • Whether termination is a proportionate response to the breach.”
In this case, the breach has been a single incident in a long-running saga between neighbours. It is not necessary for the Tribunal to determine who was in the right or wrong in each of the many episodes making up that saga. Nor is it necessary or possible to determine who was in the wrong in this one minute- long incident. The encroachment of the tenant’s car into the neighbour’s driveway was minimal and would, but for the neighbour’s intervention, have been fleeting. As noted, there is no indication in the landlord’s evidence that the assault was vicious or malicious: it appears to be no more than an attempt to move the neighbour out of and away from the car.
The tenant and his lawyer provided evidence that he is on bail in relation to the criminal charge. This requires him to live at the premises, not to go to the neighbour’s and not to offer violence to anyone.
The tenant gave evidence that he has no criminal record and has every intention of adhering to his bail conditions as he is aware of the serious consequences of breaching them. He also intends to defend the criminal charge vigorously.
Termination of a tenancy is the Tribunal’s ultimate sanction and it understands the significant impact it has on tenants and their reputation. It is careful only to exercise it as a remedy when absolutely necessary.
In this case, the gravity of the breach – the pushing away of the neighbour from his car with minimal force and no evidence of injury to the neighbour, especially when weighed against the actions of the neighbour in the incident - significantly outweighs the consequences of those actions, being termination of the tenancy for assault.
The landlord’s application is dismissed.

Tenancy Tribunal case 5057789 — 14-day notice at 5B Short Street, Claudelands, Hamilton 3214

At a glance

Tenancy Tribunal case 5057789 — 14-day notice at 5B Short Street, Claudelands, Hamilton 3214

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions