What was Tenancy Tribunal case 5107329 about?

The tribunal order states: The Tribunal orders suppression of the Applicant and Respondent’s names

How much money was awarded in case 5107329?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5107329?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5107329?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11812495-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5107329 about?

The tribunal order states: The Tribunal orders suppression of the Applicant and Respondent’s names

How much money was awarded in case 5107329?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5107329?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5107329?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11812495-Tribunal_Order_Redacted.pdf.

98 Paritai Drive, Orakei, Auckland 1071 Tenancy Tribunal Case 5107329 — Rent arrears

Order

The Tribunal orders suppression of the Applicant and Respondent’s names and identifying details.
This application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing which was held by video conference. The respondent was represented by counsel, Mr McNae.
This order ought to be read together with the Tribunal’s previous order dated 26 February 2025. In that order I outlined the issues that the Tribunal needed to determine.
The applicant has made a claim in the Tenancy Tribunal seeking termination of the respondent’s tenancy, rent arrears and reimbursement of the filing fee.
The first issue to be determined is whether this Tribunal has the jurisdiction to hear the claim.
The question here is whether the applicant and respondent have a landlord/tenant relationship as described by the Residential Tenancies Act 1986. If the Tribunal finds that this is not a landlord/tenant relationship, then the Tenancy Tribunal has no jurisdiction to hear the claim.

Is the relationship between the parties that of a landlord and tenant?

The background to this claim is that the applicant and the respondent have what could be described as an enmeshed financial relationship. Included in that relationship was activity undertaken by both parties (and the entities with which they are associated), the broad aim of which was to develop properties in Auckland.
The applicant’s claim is that the property at Paritai Drive is owned by him and rented to the Williamson Family Trust, of which the respondent is the single trustee. The applicant claims that he is therefore the landlord and the Williamson Family Trust is the tenant and that the provisions of the Residential Tenancies Act 1986 therefore apply. Accordingly, the Tenancy Tribunal has the jurisdiction to hear his claim against the respondent.
To support his claim that this is a landlord/tenant relationship, the applicant points to a Residential Tenancies Agreement signed by both parties on 13 September 2020, which provides that the tenancy is to commence on 9 October 2020 and to finish on 8 October 2021. The rent per week is set at $4,700.00.
The applicant states that this tenancy arose out of the fact that he was unable to sell the Paritai Drive house and so the next step was to rent it out. He says that he rented to the respondent and rent was paid fortnightly, on time for the first 12 months. He says these rent payments are also evidence that this was a standard landlord/tenant arrangement.
The applicant also states while the rent was often not paid over the ensuing months, there were catch up payments, in particular $56,000.00 paid on 1 and 2 November 2022.
Acknowledging that there were significant arrears during the tenancy, the applicant stated that he understood that the respondent was sometimes unable to pay rent and so he deferred payment until the respondent was more solvent.
Any money he, or an entity of which he was a director, gave to the respondent he says was just a loan, rather than evidence that theirs was a rent recycling arrangement, as stated by the respondent.
However, having considered the applicant’s evidence, I am satisfied that the relationship that he has with the respondent in relation to the Paritai house is not that of a landlord/tenant.
Although the agreement between the parties is documented as being a Residential Tenancies Agreement, I consider that this agreement was not, in fact, one between a landlord and a tenant.
I say this for reasons that include: (a) The applicant accepts that the agreement was entered into for the purpose of facilitating the loan processes from the banks; and (b) There is no evidence which would indicate that the motivation for the agreement changed at all during the tenancy; and (c) I accept the respondent’s evidence that rent payments were intended to be ‘recycled’ back to the respondent by way of one of the respondent’s entities, so that in fact rent was not paid; and (d) Reference to recycling rent is made in emails prior to the date of the respondent commencing living at the home on 9 October 2020; and (e) Reference to recycling rent also occurs in an email dated 18 November 2020 when the applicant informs the respondent that he will transfer money to one of the respondent’s entities. While the applicant says this was a loan, there is no evidence of any loan document having been drawn up; and (f) Sporadic rent payments were made after the first year of residence and there is no evidence of any request for rent payments, or any indication from the applicant that the respondent was in arrears; and (g) A further email from the applicant to the respondent on 15 November 2023 says that ‘effectively there is only rental from Apirana’, which I am accepting, taken with the rest of the email, means that there is no rent coming from Paritai because it was getting ‘recycled’ back to the respondent. Again, there is no demand for rent payment, or mention of rent arrears. Rather, the applicant refers to raising money by selling the cars or using the cars as security for a loan. He does not refer to raising money by receiving rent from the respondent; and (h) An email from a Mr Fox to the parties dated 27 November 2023 asks the applicant for a payment of $20,000.00 which he says he will then deposit into another of the respondent’s entities. This again indicates that the ‘rent’ was intended to be recycled back to the respondent. While the applicant stated at the hearing that he did not understand the email and ignored it, I note that on 30 November 2023 the applicant emailed Mr Fox to say that no funds were currently available; and (i) I accept that from that time no rent payments were made because the applicant was technically insolvent. This indicates that once the applicant’s funds dried up, the rent was no longer able to be recycled.
In summary, I find that the intention of the parties when entering into the Residential Tenancy agreement was not in fact to create a legal relationship of landlord and tenant. The motivation for the agreement, as accepted by the applicant, was to facilitate loan applications to the bank. There was no common intention that the respondent was in fact to pay rent. Rather, the rent payments to the applicant were intended to be recycled back to the respondent, as indeed they were.
This means that the Residential Tenancy agreement signed by both parties was a sham.
It is settled law that sham contracts have no legal effect which means that there is no landlord/tenant relationship created in this agreement.
The Tenancy Tribunal therefore does not have the jurisdiction to hear this claim.

Who is the correct respondent?

I note that during the hearing the applicant suggested that the respondent was named as a Trust, and not the individual who attended the hearing. The applicant seemed to be suggesting that the individual’s evidence ought not to be taken into account.
A trust is not a legal entity in and of itself which can sue or be sued. To sue a trust all trustees need to be named. It is the trustees who may sue or be sued.
The individual who attended the hearing was the single trustee of the Trust that was named as the respondent and therefore was the correct entity at the hearing. Suppression of names
Section 95A of the Residential Tenancies Act 1986 provides that: (1) The Tribunal may, on the application of any party to the proceedings or on its own initiative, having regard to the interests of the parties and to the public interest order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (2) An order may be subject to any conditions that the Tribunal considers appropriate. (3) If a party that has wholly or substantially succeeded in the proceedings applies for an order that their name or identifying particulars not be published, the Tribunal must make the order unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
On my own initiative pursuant to s95A(1) I have suppressed both parties’ names. I do so largely because given that the Tenancy Tribunal has no jurisdiction to hear the claim, I see very little public interest in having the parties’ names published. C ter Haar 06 May 2025

Order

The Tribunal orders suppression of the Applicant and Respondent’s names and identifying details.
This application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing which was held by video conference. The respondent was represented by counsel, Mr McNae.
This order ought to be read together with the Tribunal’s previous order dated 26 February 2025. In that order I outlined the issues that the Tribunal needed to determine.
The applicant has made a claim in the Tenancy Tribunal seeking termination of the respondent’s tenancy, rent arrears and reimbursement of the filing fee.
The first issue to be determined is whether this Tribunal has the jurisdiction to hear the claim.
The question here is whether the applicant and respondent have a landlord/tenant relationship as described by the Residential Tenancies Act 1986. If the Tribunal finds that this is not a landlord/tenant relationship, then the Tenancy Tribunal has no jurisdiction to hear the claim.

Is the relationship between the parties that of a landlord and tenant?

The background to this claim is that the applicant and the respondent have what could be described as an enmeshed financial relationship. Included in that relationship was activity undertaken by both parties (and the entities with which they are associated), the broad aim of which was to develop properties in Auckland.
The applicant’s claim is that the property at Paritai Drive is owned by him and rented to the Williamson Family Trust, of which the respondent is the single trustee. The applicant claims that he is therefore the landlord and the Williamson Family Trust is the tenant and that the provisions of the Residential Tenancies Act 1986 therefore apply. Accordingly, the Tenancy Tribunal has the jurisdiction to hear his claim against the respondent.
To support his claim that this is a landlord/tenant relationship, the applicant points to a Residential Tenancies Agreement signed by both parties on 13 September 2020, which provides that the tenancy is to commence on 9 October 2020 and to finish on 8 October 2021. The rent per week is set at $4,700.00.
The applicant states that this tenancy arose out of the fact that he was unable to sell the Paritai Drive house and so the next step was to rent it out. He says that he rented to the respondent and rent was paid fortnightly, on time for the first 12 months. He says these rent payments are also evidence that this was a standard landlord/tenant arrangement.
The applicant also states while the rent was often not paid over the ensuing months, there were catch up payments, in particular $56,000.00 paid on 1 and 2 November 2022.
Acknowledging that there were significant arrears during the tenancy, the applicant stated that he understood that the respondent was sometimes unable to pay rent and so he deferred payment until the respondent was more solvent.
Any money he, or an entity of which he was a director, gave to the respondent he says was just a loan, rather than evidence that theirs was a rent recycling arrangement, as stated by the respondent.
However, having considered the applicant’s evidence, I am satisfied that the relationship that he has with the respondent in relation to the Paritai house is not that of a landlord/tenant.
Although the agreement between the parties is documented as being a Residential Tenancies Agreement, I consider that this agreement was not, in fact, one between a landlord and a tenant.
I say this for reasons that include: (a) The applicant accepts that the agreement was entered into for the purpose of facilitating the loan processes from the banks; and (b) There is no evidence which would indicate that the motivation for the agreement changed at all during the tenancy; and (c) I accept the respondent’s evidence that rent payments were intended to be ‘recycled’ back to the respondent by way of one of the respondent’s entities, so that in fact rent was not paid; and (d) Reference to recycling rent is made in emails prior to the date of the respondent commencing living at the home on 9 October 2020; and (e) Reference to recycling rent also occurs in an email dated 18 November 2020 when the applicant informs the respondent that he will transfer money to one of the respondent’s entities. While the applicant says this was a loan, there is no evidence of any loan document having been drawn up; and (f) Sporadic rent payments were made after the first year of residence and there is no evidence of any request for rent payments, or any indication from the applicant that the respondent was in arrears; and (g) A further email from the applicant to the respondent on 15 November 2023 says that ‘effectively there is only rental from Apirana’, which I am accepting, taken with the rest of the email, means that there is no rent coming from Paritai because it was getting ‘recycled’ back to the respondent. Again, there is no demand for rent payment, or mention of rent arrears. Rather, the applicant refers to raising money by selling the cars or using the cars as security for a loan. He does not refer to raising money by receiving rent from the respondent; and (h) An email from a Mr Fox to the parties dated 27 November 2023 asks the applicant for a payment of $20,000.00 which he says he will then deposit into another of the respondent’s entities. This again indicates that the ‘rent’ was intended to be recycled back to the respondent. While the applicant stated at the hearing that he did not understand the email and ignored it, I note that on 30 November 2023 the applicant emailed Mr Fox to say that no funds were currently available; and (i) I accept that from that time no rent payments were made because the applicant was technically insolvent. This indicates that once the applicant’s funds dried up, the rent was no longer able to be recycled.
In summary, I find that the intention of the parties when entering into the Residential Tenancy agreement was not in fact to create a legal relationship of landlord and tenant. The motivation for the agreement, as accepted by the applicant, was to facilitate loan applications to the bank. There was no common intention that the respondent was in fact to pay rent. Rather, the rent payments to the applicant were intended to be recycled back to the respondent, as indeed they were.
This means that the Residential Tenancy agreement signed by both parties was a sham.
It is settled law that sham contracts have no legal effect which means that there is no landlord/tenant relationship created in this agreement.
The Tenancy Tribunal therefore does not have the jurisdiction to hear this claim.

Who is the correct respondent?

I note that during the hearing the applicant suggested that the respondent was named as a Trust, and not the individual who attended the hearing. The applicant seemed to be suggesting that the individual’s evidence ought not to be taken into account.
A trust is not a legal entity in and of itself which can sue or be sued. To sue a trust all trustees need to be named. It is the trustees who may sue or be sued.
The individual who attended the hearing was the single trustee of the Trust that was named as the respondent and therefore was the correct entity at the hearing. Suppression of names
Section 95A of the Residential Tenancies Act 1986 provides that: (1) The Tribunal may, on the application of any party to the proceedings or on its own initiative, having regard to the interests of the parties and to the public interest order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (2) An order may be subject to any conditions that the Tribunal considers appropriate. (3) If a party that has wholly or substantially succeeded in the proceedings applies for an order that their name or identifying particulars not be published, the Tribunal must make the order unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
On my own initiative pursuant to s95A(1) I have suppressed both parties’ names. I do so largely because given that the Tenancy Tribunal has no jurisdiction to hear the claim, I see very little public interest in having the parties’ names published. C ter Haar 06 May 2025

Tenancy Tribunal case 5107329 — Rent arrears at 98 Paritai Drive, Orakei, Auckland 1071

At a glance

Claims & awards

Tenancy Tribunal case 5107329 — Rent arrears at 98 Paritai Drive, Orakei, Auckland 1071

At a glance

Claims & awards

Order

Reasons

Is the relationship between the parties that of a landlord and tenant?

Who is the correct respondent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Is the relationship between the parties that of a landlord and tenant?

Who is the correct respondent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions