Tenantcheck Insights
Tenantcheck Insights · Case study
Decided 29 Nov 2024 · Published 29 Nov 2024 · Application 5063128
Key facts from the published tribunal order.
Location
New Plymouth
Tribunal region
Adjudicator
L Ryken
Tenantcheck Insights · Case study
Decided 29 Nov 2024 · Published 29 Nov 2024 · Application 5063128
Key facts from the published tribunal order.
Location
New Plymouth
Tribunal region
Adjudicator
L Ryken
Dispute themes
Gross awards, any bond applied per the order, and the remaining balance payable.
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
| Claim | Landlord | Tenant | Reason |
|---|---|---|---|
| Filing fee reimbursement | $27.00 | Filing fee reimbursement | |
| Net award | $27.00 | ||
| Total payable by Tenant to Landlord | $27.00 |
Claims and awards for application 5063128 — net $27.00 NZD. Verify on MoJ.
Filing fee reimbursement
Net award
Landlord $27.00
Total payable by Tenant to Landlord
Landlord $27.00
Claim types — money lines allowed on this order
1The tenancy of [The tenant/s] at 5 Wrantage Street, Westown, New Plymouth 4310 is terminated, and possession is granted to Kāinga Ora– Homes And Communities immediately. 2[The tenant/s] must pay Kainga Ora Homes And Communities $27.00 immediately calculated as shown in the table below.
1Both parties attended the hearing. 2The landlord has applied for termination of the tenancy for breach of the tenant’s obligations. The landlord relies on section 55(1)(c)(v) to terminate the tenancy.
3In essence, the landlord alleges that on 1 October 2024, a male called Jason Te Raraku was at the tenancy address with the tenant’s permission and assaulted a neighbour. 4As the applicant, the landlord must prove their claim to the civil law standard of proof, on the balance of probabilities. Where an allegation is particularly serious, and in particular involving criminal offending as is the case here, the Tribunal requires evidence of a sufficiently high standard to meet the burden. Landlord’s submissions 5The tenancy began on 5 April 2024. 6The landlord claims that on 1 October 2024, Jason Teraraku was at the tenancy address with the tenant’s permission. The landlord claims that Mr Teraraku was facing criminal charges at the time and had been bailed to the tenancy address with the tenant’s permissions. 7The landlord states that around 10:30pm, the tenant had a visitor who was making a lot of noise on the road revving a motorbike. This noise woke a neighbour who lives across the street and their 8-year-old son. The neighbour went outside of their address and complained about the noise, asking the tenant and their associate to keep it down. The landlord claims the tenant was standing at the gate of the property at the time. At this point, the landlord claims Jason Teraraku exited the tenancy address holding a bat or large piece of timber and approached the neighbour at their address making various threats. The landlord claims Mr Teraraku hit the neighbour twice on the arm before smashing the glass of the neighbour’s door with the bat. The landlord states the tenant did nothing to deescalate the situation. 8The landlord claims Mr Teraraku has been charged by the Police because of the events on 1 October 2024. The landlord states Mr Teraraku was re-bailed back to the tenancy address with the tenant’s permission. The outcome of the Police charges against Mr Teraraku have yet to be determined. 9In support of their claim, the landlord submitted the following evidence: a. Email from the neighbour sent to the landlord on 14 October 2024 outlining their version of events. This email states the following: “One of Roxanne’s visitors was on a bike with a motor attached to it making a lot of noise outside her house at 10:30pm at night which woke my 8-year-old son and myself asleep in the front room. I went outside to tell them to keep it down and that the nose was ridiculous for that time of night. She was standing at her front gate talking with the guy on the motorised bike she started yelling at me and that’s when someone came out of her
house with a bat and started threatening my life, he came out on to the road and that’s when I started recording like you had advised me to do. That’s when he proceeded to come towards me and hit me twice with the bat. Yes she was present during the assault as you can see in the recording that she is standing inside her property leaning on her front gate talking to the guy on the bike. There was no attempt to deescalate the situation at all. This has been very traumatic for both me and my 8-year-old son who now has night terrors because of this. Further to this the attacker has been bailed directly back to the property across the road from the victim one of which is a child. This is a real kick in the guts. This is beyond unacceptable Aron.” b. Police report of the incident. c. Photographs of the injuries sustained to the neighbour and damage to their door. There is a photograph of the neighbour’s forearm, which appears bloodied. There is also a photograph of the neighbour’s door, which shows a smashed windowpane. d. Two videos of the incident taken by the neighbour on his phone. The first video shows a young male standing on the opposite side of the street. The neighbour says, “standing there with a fucking bat?” and the person in the video replies “you want to fucking record now?” multiple times whilst walking across the street towards the neighbour holding what looks like a long plank of wood. The second video does not show anything, but you can hear yelling and the smashing of glass. 10 The landlord did not call the neighbour as a witness. The landlord states the neighbour did not want to be involved in these proceedings as they were fearful for their safety. Tenant’s submissions 11 The tenant gave evidence that the neighbour does not like them and has made a concerted effort to file multiple complaints with the landlord in an attempt to have the tenant evicted. 12 The tenant states they recently suffered a heart attack and struggle to do strenuous activities. As a result, they required the help of a lot of people to move into the property when the tenancy began. The tenant states the
neighbour did not like the presence of lots of people at her address during this time and this set their relationship off to a bad start. 13 The tenant accepts that Mr Teraraku was at the property with her permission on 1 October 2024. She states that Mr Teraraku attends the same course as her son and was staying the night for her son’s birthday. The tenant denies that they have ever offered their address as a bail address for Mr Teraraku. 14 The tenant claims that in the lead up to 1 October 2024, Mr Teraraku would sometimes stay at her address. She states he was homeless at the time and couch-surfing. After 1 October 2024, the tenant claims Mr Teraraku stayed at the property less than one week. The tenant claims she was trying to help Mr Teraraku get back on his feet. At various points in the hearing, the tenant referred to Mr Teraraku as imposing himself on the tenant and her family. She stated that he “basically took over the whole house”, was intimidating and would not leave. 15 The tenant states that on the night of 1 October 2024, around 9:30pm, a person who they do not know parked their motorbike at the end of their driveway. The tenant approached this person to see what was going on. The tenant claims the motorbike was broken and the person was tinkering with it to try to fix it, which included revving the engine. The tenant denies that she knew the person on the motorbike. 16 The tenant claims that the neighbour came out of their house and was yelling and swearing at the tenant. At this point, Mr Teraraku came out of the tenancy address. The tenant states that she told Mr Teraraku to go back inside and he said he would not because the neighbour was disrespecting his mum. The tenant claims that Mr Teraraku sometimes referred to her as “mum.” The tenant states the neighbour was antagonising Mr Teraraku saying “what are you going to do?” and recording on his phone, which Mr Teraraku did not like. The tenant accepts that Mr Teraraku approached the neighbour at their property holding a piece of wood and an altercation ensued. The tenant claims she shouted at Mr Teraraku not to go over and to stop multiple times, but he did not. 17 The tenant did not submit any other evidence to support their version of events. Termination The law 18 The landlord seeks termination under section 55(1)(c)(v) RTA. This section provides for the termination of tenancies for assault. It reads:
Section 55 (1) Subject to subsection (2) of this act, on any application made to it under this section by the landlord, the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that – ... (c) the tenant has caused, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, any of the following persons: ... (v) any neighbour of the premises or of any building of which the premises constitutes a part. ... (2) The Tribunal may refuse to make an order under subsection (1) of this section if, but only if, it s 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 this section applies [(but see also section 78A(3)(b))]. 19 Assault is defined in section 2(1) of the Crimes Act 1961 as: [T]he 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. 20 In the case of Collins v Housing New Zealand, High Court Christchurch, CIV- 2004 – 409 – 717, 2 July 2004, his Honour Judge Keane accepted that an assault, or threat of assault, once made could not be remedied. His Honour however, formed the view that the discretion under section 55(2) RTA remained, regardless of whether the breach was capable of remedy or not. The High Court held that if the breach could not be remedied, then the issue could be set aside and the Tribunal go on to consider the two remaining factors under section 55(2), namely whether the landlord had been compensated for any loss arising from the breach and whether it was unlikely that the tenant would commit any further breach of the same kind.
21 Section 41 RTA states the tenant is responsible for anything done by any person who is at the property with the tenant’s permission if the act would have constituted a breach of the Act or agreement. Analysis 22 Based on the evidence presented by the landlord, I am satisfied on the balance of probabilities that Mr Teraraku assaulted a neighbour of the tenancy address by hitting them on their forearm with a piece of wood. 23 The landlord did not call the neighbour as a witness however, they provided an email from the neighbour outlining what occurred. This email is dated 14 October 2024, which is only two weeks after the date of the incident on 1 October 2024. The neighbour’s memory would have been fresh at the time the email was sent. The email is detailed, and although it is not a formal witness statement, I consider its contents to be supported by the additional evidence of the photographs of the neighbour’s injuries and video footage. 24 The tenant accepts that Mr Teraraku was at the tenancy address with their permission at the time of the incident. Therefore, the tenant is responsible for the actions of Mr Teraraku at the time. 25 The tenant states that they tried to stop Mr Teraraku from approaching the neighbour by yelling at him and asking him to stop. The landlord disputes this and refers to the neighbour’s email which states the tenant did nothing to deescalate the situation. I have listened and watched the video footage many times carefully. I cannot hear anyone yelling at Mr Teraraku to stop as he crosses the street. I am satisfied on the balance of probabilities that the tenant did not try to stop Mr Teraraku from advancing and ultimately assaulting the neighbour. 26 The landlord has proven that the tenant caused or permitted Mr Teraraku to assault a neighbour to the required standard. 27 The next issue I must determine is whether this is an appropriate case to exercise my jurisdiction not to terminate the tenancy under section 55(2) RTA. The breach is not capable of remedy and the landlord is not able to be financially compensated. Therefore, the only remaining factor I must consider is whether it is unlikely that the tenant will commit any further breach of the same kind in the future. Relevant to this assessment is whether I am satisfied on the balance of probabilities that the tenant will prohibit Mr Teraraku from visiting the tenancy address or be able to exit him from the address if he does visit in the future. For the following reasons, I am not: a. The tenant gave evidence that Mr Teraraku knows her son and attends the same course as him. She said that on 1 October 2024, Mr Teraraku was staying the night for her son’s birthday. This implies that Mr Teraraku and
the tenant’s son are friends. I consider this increases the likelihood that Mr Teraraku will visit the tenancy address again in the future. b. The tenant gave evidence that she felt sorry for Mr Teraraku as he was homeless and struggling with a lot of things. She said that he called her “mum”, which implies that he considered the two of them to be close. I consider that the nature of the tenant’s relationship with Mr Teraraku also increases the likelihood that he will visit the address in the future. c. The tenant gave evidence that whilst she initially felt sorry for Me Teraraku being homeless and tried to help him, she felt like he imposed himself upon her family and refused to leave when asked. The inability of the tenant to remove Mr Teraraku from the address in the past leaves me uncertain that she will be able to remove Mr Teraraku from the address in the future if he visits again. 28 The landlord has proven their claim under section 55(1)(c)(v) RTA and I decline to exercise my discretion to not terminate the tenancy under section 55(2). The tenancy is terminated. Although this order states that termination is to occur immediately, it remains open to the landlord to allow the tenant some time to vacate the property if the landlord considers this reasonable and necessary. The tenant remains liable to pay rent up until the date they vacate the property. Filing fee 29 Because Kāinga Ora–Homes And Communities has wholly succeeded with the claim I must reimburse the filing fee.
Topics are dispute themes across the order (not the same as claim-type money lines).
s11, s2(1), s22, s41, s5, s55, s55(1), s55(2), s78A(3)
Common questions about this Tenancy Tribunal case.
The tribunal order states: 1The tenancy of [The tenant/s] at 5 Wrantage Street, Westown,
Filing Fee: $27.00 awarded to landlord
The dispute type was not classified.
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11134275-Tenancy_Tribunal_Order.pdf.
Dispute themes
Gross awards, any bond applied per the order, and the remaining balance payable.
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
| Claim | Landlord | Tenant | Reason |
|---|---|---|---|
| Filing fee reimbursement | $27.00 | Filing fee reimbursement | |
| Net award | $27.00 | ||
| Total payable by Tenant to Landlord | $27.00 |
Claims and awards for application 5063128 — net $27.00 NZD. Verify on MoJ.
Filing fee reimbursement
Net award
Landlord $27.00
Total payable by Tenant to Landlord
Landlord $27.00
Claim types — money lines allowed on this order
1The tenancy of [The tenant/s] at 5 Wrantage Street, Westown, New Plymouth 4310 is terminated, and possession is granted to Kāinga Ora– Homes And Communities immediately. 2[The tenant/s] must pay Kainga Ora Homes And Communities $27.00 immediately calculated as shown in the table below.
1Both parties attended the hearing. 2The landlord has applied for termination of the tenancy for breach of the tenant’s obligations. The landlord relies on section 55(1)(c)(v) to terminate the tenancy.
3In essence, the landlord alleges that on 1 October 2024, a male called Jason Te Raraku was at the tenancy address with the tenant’s permission and assaulted a neighbour. 4As the applicant, the landlord must prove their claim to the civil law standard of proof, on the balance of probabilities. Where an allegation is particularly serious, and in particular involving criminal offending as is the case here, the Tribunal requires evidence of a sufficiently high standard to meet the burden. Landlord’s submissions 5The tenancy began on 5 April 2024. 6The landlord claims that on 1 October 2024, Jason Teraraku was at the tenancy address with the tenant’s permission. The landlord claims that Mr Teraraku was facing criminal charges at the time and had been bailed to the tenancy address with the tenant’s permissions. 7The landlord states that around 10:30pm, the tenant had a visitor who was making a lot of noise on the road revving a motorbike. This noise woke a neighbour who lives across the street and their 8-year-old son. The neighbour went outside of their address and complained about the noise, asking the tenant and their associate to keep it down. The landlord claims the tenant was standing at the gate of the property at the time. At this point, the landlord claims Jason Teraraku exited the tenancy address holding a bat or large piece of timber and approached the neighbour at their address making various threats. The landlord claims Mr Teraraku hit the neighbour twice on the arm before smashing the glass of the neighbour’s door with the bat. The landlord states the tenant did nothing to deescalate the situation. 8The landlord claims Mr Teraraku has been charged by the Police because of the events on 1 October 2024. The landlord states Mr Teraraku was re-bailed back to the tenancy address with the tenant’s permission. The outcome of the Police charges against Mr Teraraku have yet to be determined. 9In support of their claim, the landlord submitted the following evidence: a. Email from the neighbour sent to the landlord on 14 October 2024 outlining their version of events. This email states the following: “One of Roxanne’s visitors was on a bike with a motor attached to it making a lot of noise outside her house at 10:30pm at night which woke my 8-year-old son and myself asleep in the front room. I went outside to tell them to keep it down and that the nose was ridiculous for that time of night. She was standing at her front gate talking with the guy on the motorised bike she started yelling at me and that’s when someone came out of her
house with a bat and started threatening my life, he came out on to the road and that’s when I started recording like you had advised me to do. That’s when he proceeded to come towards me and hit me twice with the bat. Yes she was present during the assault as you can see in the recording that she is standing inside her property leaning on her front gate talking to the guy on the bike. There was no attempt to deescalate the situation at all. This has been very traumatic for both me and my 8-year-old son who now has night terrors because of this. Further to this the attacker has been bailed directly back to the property across the road from the victim one of which is a child. This is a real kick in the guts. This is beyond unacceptable Aron.” b. Police report of the incident. c. Photographs of the injuries sustained to the neighbour and damage to their door. There is a photograph of the neighbour’s forearm, which appears bloodied. There is also a photograph of the neighbour’s door, which shows a smashed windowpane. d. Two videos of the incident taken by the neighbour on his phone. The first video shows a young male standing on the opposite side of the street. The neighbour says, “standing there with a fucking bat?” and the person in the video replies “you want to fucking record now?” multiple times whilst walking across the street towards the neighbour holding what looks like a long plank of wood. The second video does not show anything, but you can hear yelling and the smashing of glass. 10 The landlord did not call the neighbour as a witness. The landlord states the neighbour did not want to be involved in these proceedings as they were fearful for their safety. Tenant’s submissions 11 The tenant gave evidence that the neighbour does not like them and has made a concerted effort to file multiple complaints with the landlord in an attempt to have the tenant evicted. 12 The tenant states they recently suffered a heart attack and struggle to do strenuous activities. As a result, they required the help of a lot of people to move into the property when the tenancy began. The tenant states the
neighbour did not like the presence of lots of people at her address during this time and this set their relationship off to a bad start. 13 The tenant accepts that Mr Teraraku was at the property with her permission on 1 October 2024. She states that Mr Teraraku attends the same course as her son and was staying the night for her son’s birthday. The tenant denies that they have ever offered their address as a bail address for Mr Teraraku. 14 The tenant claims that in the lead up to 1 October 2024, Mr Teraraku would sometimes stay at her address. She states he was homeless at the time and couch-surfing. After 1 October 2024, the tenant claims Mr Teraraku stayed at the property less than one week. The tenant claims she was trying to help Mr Teraraku get back on his feet. At various points in the hearing, the tenant referred to Mr Teraraku as imposing himself on the tenant and her family. She stated that he “basically took over the whole house”, was intimidating and would not leave. 15 The tenant states that on the night of 1 October 2024, around 9:30pm, a person who they do not know parked their motorbike at the end of their driveway. The tenant approached this person to see what was going on. The tenant claims the motorbike was broken and the person was tinkering with it to try to fix it, which included revving the engine. The tenant denies that she knew the person on the motorbike. 16 The tenant claims that the neighbour came out of their house and was yelling and swearing at the tenant. At this point, Mr Teraraku came out of the tenancy address. The tenant states that she told Mr Teraraku to go back inside and he said he would not because the neighbour was disrespecting his mum. The tenant claims that Mr Teraraku sometimes referred to her as “mum.” The tenant states the neighbour was antagonising Mr Teraraku saying “what are you going to do?” and recording on his phone, which Mr Teraraku did not like. The tenant accepts that Mr Teraraku approached the neighbour at their property holding a piece of wood and an altercation ensued. The tenant claims she shouted at Mr Teraraku not to go over and to stop multiple times, but he did not. 17 The tenant did not submit any other evidence to support their version of events. Termination The law 18 The landlord seeks termination under section 55(1)(c)(v) RTA. This section provides for the termination of tenancies for assault. It reads:
Section 55 (1) Subject to subsection (2) of this act, on any application made to it under this section by the landlord, the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that – ... (c) the tenant has caused, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, any of the following persons: ... (v) any neighbour of the premises or of any building of which the premises constitutes a part. ... (2) The Tribunal may refuse to make an order under subsection (1) of this section if, but only if, it s 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 this section applies [(but see also section 78A(3)(b))]. 19 Assault is defined in section 2(1) of the Crimes Act 1961 as: [T]he 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. 20 In the case of Collins v Housing New Zealand, High Court Christchurch, CIV- 2004 – 409 – 717, 2 July 2004, his Honour Judge Keane accepted that an assault, or threat of assault, once made could not be remedied. His Honour however, formed the view that the discretion under section 55(2) RTA remained, regardless of whether the breach was capable of remedy or not. The High Court held that if the breach could not be remedied, then the issue could be set aside and the Tribunal go on to consider the two remaining factors under section 55(2), namely whether the landlord had been compensated for any loss arising from the breach and whether it was unlikely that the tenant would commit any further breach of the same kind.
21 Section 41 RTA states the tenant is responsible for anything done by any person who is at the property with the tenant’s permission if the act would have constituted a breach of the Act or agreement. Analysis 22 Based on the evidence presented by the landlord, I am satisfied on the balance of probabilities that Mr Teraraku assaulted a neighbour of the tenancy address by hitting them on their forearm with a piece of wood. 23 The landlord did not call the neighbour as a witness however, they provided an email from the neighbour outlining what occurred. This email is dated 14 October 2024, which is only two weeks after the date of the incident on 1 October 2024. The neighbour’s memory would have been fresh at the time the email was sent. The email is detailed, and although it is not a formal witness statement, I consider its contents to be supported by the additional evidence of the photographs of the neighbour’s injuries and video footage. 24 The tenant accepts that Mr Teraraku was at the tenancy address with their permission at the time of the incident. Therefore, the tenant is responsible for the actions of Mr Teraraku at the time. 25 The tenant states that they tried to stop Mr Teraraku from approaching the neighbour by yelling at him and asking him to stop. The landlord disputes this and refers to the neighbour’s email which states the tenant did nothing to deescalate the situation. I have listened and watched the video footage many times carefully. I cannot hear anyone yelling at Mr Teraraku to stop as he crosses the street. I am satisfied on the balance of probabilities that the tenant did not try to stop Mr Teraraku from advancing and ultimately assaulting the neighbour. 26 The landlord has proven that the tenant caused or permitted Mr Teraraku to assault a neighbour to the required standard. 27 The next issue I must determine is whether this is an appropriate case to exercise my jurisdiction not to terminate the tenancy under section 55(2) RTA. The breach is not capable of remedy and the landlord is not able to be financially compensated. Therefore, the only remaining factor I must consider is whether it is unlikely that the tenant will commit any further breach of the same kind in the future. Relevant to this assessment is whether I am satisfied on the balance of probabilities that the tenant will prohibit Mr Teraraku from visiting the tenancy address or be able to exit him from the address if he does visit in the future. For the following reasons, I am not: a. The tenant gave evidence that Mr Teraraku knows her son and attends the same course as him. She said that on 1 October 2024, Mr Teraraku was staying the night for her son’s birthday. This implies that Mr Teraraku and
the tenant’s son are friends. I consider this increases the likelihood that Mr Teraraku will visit the tenancy address again in the future. b. The tenant gave evidence that she felt sorry for Mr Teraraku as he was homeless and struggling with a lot of things. She said that he called her “mum”, which implies that he considered the two of them to be close. I consider that the nature of the tenant’s relationship with Mr Teraraku also increases the likelihood that he will visit the address in the future. c. The tenant gave evidence that whilst she initially felt sorry for Me Teraraku being homeless and tried to help him, she felt like he imposed himself upon her family and refused to leave when asked. The inability of the tenant to remove Mr Teraraku from the address in the past leaves me uncertain that she will be able to remove Mr Teraraku from the address in the future if he visits again. 28 The landlord has proven their claim under section 55(1)(c)(v) RTA and I decline to exercise my discretion to not terminate the tenancy under section 55(2). The tenancy is terminated. Although this order states that termination is to occur immediately, it remains open to the landlord to allow the tenant some time to vacate the property if the landlord considers this reasonable and necessary. The tenant remains liable to pay rent up until the date they vacate the property. Filing fee 29 Because Kāinga Ora–Homes And Communities has wholly succeeded with the claim I must reimburse the filing fee.
Topics are dispute themes across the order (not the same as claim-type money lines).
s11, s2(1), s22, s41, s5, s55, s55(1), s55(2), s78A(3)
Common questions about this Tenancy Tribunal case.
The tribunal order states: 1The tenancy of [The tenant/s] at 5 Wrantage Street, Westown,
Filing Fee: $27.00 awarded to landlord
The dispute type was not classified.
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11134275-Tenancy_Tribunal_Order.pdf.
