Published tribunal order
Tenancy Tribunal case 5087708 — Rent arrears
Decided 30 Apr 2025 · Published 30 Apr 2025 · Application 5087708
- Rent arrears
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant and landlord’s names and identifying details.
- The Bond Centre is to pay $1,149.00 of the bond ([Bond number suppressed]) to [The landlord/s] immediately and $1,171.00 of the bond ([Bond number suppressed]) to [The tenant/s] immediately, pursuant to the below table:
Reasons
- Both parties attended the hearing. The tenant attended via video hearing. The landlord attended via phone.
- By decision dated 3 December 2024, the Tribunal made an order in respect of the tenant’s claims for exemplary damages, and the landlord’s claim for compensation for damage to the kitchen benchtop. Those orders are included in this order above.
- The remaining claim for determination is the landlord’s claim for rent arrears in the amount of $1,240.00. Burden and standard of proof
- The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.
- That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
- This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
- 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.
Does the tenant owe rent arrears?
- The landlord says the tenant accrued $140 in arrears between 11 June 2024 and 24 June 2024 when the tenant failed to adjust their weekly payment of rent pursuant to a notice served on 12 April 2024. The notice sated that on 11 June 2024 the rent would increase from $630 per week, to $700 per week. As a result, the tenant under-paid rent by $70 for each of those two weeks.
- The landlord says the tenant accrued a further $1,400 in rent arrears when they failed to pay rent for the two-week period from 25 June 2024 to 8 July 2024.
- The landlord says the tenant was liable for rent up until 23 August 2024 when the tenancy came to an end. The tenant last paid rent on 21 August 2024, paying a full week of $700 when in fact the landlord says the tenant only owed $400 for the four days 20 – 23 August 2024 inclusive.
- Taking into account the overpayment of $300 at the end of the tenancy, the landlord says the tenant owes $1,240 in rent arrears.
- The landlord has provided a rent summary in support of their claim.
- The tenant accepts that the payment of rent was not adjusted to the new amount of $700 from 11 June 2024. They accept they owe $140 in arrears for the period 11 June 2024 to 24 June 2024.
- However, the tenant says the parties agreed to a “rent holiday”, that is a period when the tenant did not have to pay any rent, for the two-week period 25 June 2024 to 8 July 2024. The tenant says this was agreed to as, when the tenant’s sub-tenant moved out on or about 24 June 2024, the tenant raised several matters requiring maintenance.
- The tenant says over several phone calls, the parties agreed the tenants would not pay rent for the period 25 June 2024 to 8 July 2024 while the landlord carried out the following repairs: a. Repairs the leaking shower box; b. Tighten the toilet seats in in main bathroom and ensuite; c. Repair toilet flush button; d. Repair peeling paint above ensuite shower; e. Replace line on washing line; f. Fixed gate on back deck; g. Fix drain grate in driveway which was a trip hazard; h. Trim trees; i. Fix holes and waterblast deck j. Top up ceiling insulation; and k. Repairs gutters and downpipes.
- The tenant says the agreement for rent holiday was made verbally. There was no written communication regarding the agreement. The tenant says he no longer has his phone records from that period so was unable to say on what dates the verbal discussions were held.
- The landlord denies there was any such agreement. The property manager appearing on behalf of the landlord says the property manager would have had to obtain the owner’s consent to a rent holiday and he does not have any record of seeking the owner’s consent. He says there was no agreement to stop paying rent, and therefore, pursuant to the terms of the tenancy agreement, the tenant is liable for rent for the period from 25 June 2024 to 8 July 2024.
- The “rent holiday” claimed by the tenant would be a variation to the terms of the tenancy agreement. As s13B of the RTA states: Every variation of a tenancy agreement, and every renewal of a tenancy agreement, shall be in writing and signed by both the landlord and the tenant.
- While s13C of the states that a variation is not unenforceable on the grounds that it is not in writing, the tenant has not provided evidence to prove a variation was in fact agreed to by the parties. The landlord denies there was ever an agreement to stop charging rent, and the tenant has no record, either in the form of email, text or even phone records, to support the tenant’s position that there was such an agreement.
- I am satisfied the landlord has provided proof that the tenant owed rent arrears of $1240 as at the end of the tenancy.
- I make an order accordingly. Should the tenant reimburse the landlord’s application fee?
- The landlord sought reimbursement of the filing fee for their cross-application. While the landlord has been successful in this claim for rent arrears, the previously determined claim for damages caused to the kitchen benchtop was not successful.
- As the landlord was not substantially successful with all claims the tenant is not required to reimburse the landlord’s filing fee.
Should the parties identifying details be suppressed?
- Both parties applied for suppression of their name and the tenancy address. Both parties were partially successful therefore I make an order suppressing both parties’ names.