Published tribunal order
Tenancy Tribunal case 5129092 — Rent arrears at 31A Geraldine Place, Kohimarama, Auckland 1071
Decided 8 Apr 2025 · Published 8 Apr 2025 · Application 5129092
- 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 Landlord’s name and identifying details.
- Leister Caldwell must pay [The landlord/s] $17,277.00 immediately, as set out in the table below:
Reasons
- The landlord attended the hearing.
- There is no tenancy agreement. The tenant was served with Notice of the Hearing to an e-mail address given to the landlord by the tenant. Two calls each were made to the tenant at the number specified in the Notice of Hearing and also to a number though which the landlord and the tenant were in contact at the time the tenancy ended on 23 March 2025.
- The landlord has also provided in evidence what appears to be an acknowledgment by the tenant of the landlord’s claims. I am satisfied that the hearing should proceed. How much is owed for rent
- As noted, there is no tenancy agreement. The landlord’s evidence is that the tenancy began on 19 October 2023 and that weekly rent of $900.00 was payable. That evidence is corroborated by the rent record showing the payments made.
- The rent was paid when due during the early part of the tenancy.
- On 23 July 2025, the landlord txt the tenant, “I just completed my accounts for the year and noted that you have about 4 weeks’ rent in arears. Please let me know when you will make the payments.”
- The landlord says that the tenant said he had been unwell and would make the payments up.
- From there, only 2 payments of rent were made during each of the months of August, September, October and November. The last rent payment was made on 30 November 2024.
- The landlord had been on overseas in November and December. On 24 December she e-mailed the tenant, “We have been trying to contact you for the past month. Hope you are OK. Could you please let us know ASAP how you are planning to pay the rent in arrears? Please get back to us within the next 48 hours.”
- The arrears were not paid and this application was brought on 11 January 2025, by which time arrears of $15,700.00 (17 weeks’ rent) were owed.
- An overdue rent notice was sent to the tenant on 19 February 2025, it references earlier notices said to have been given on 23 July 2024 and 24 December 2024 but those were queries about overdue rent, not overdue rent notices for the purposes of s.55(1)(aa) RTA.
- A 14 day breach notice for rent arrears was sent on 23 February 2025.
- The tenant’s husband obtained employment in Auckland and the tenant wanted to return to the premises from Brisbane where they had been living. A notice of termination was sent to the tenant on 6 February 2025, ending the tenancy on 23 March 2025. The tenant moved out on that date by which time there was unpaid rent of $24,814.29
- The landlord would have been entitled to bring an application to bring an application to end the tenancy in July 2024, when the rent was more than 21 days in arrears. The arrears only increased from that point.
- That gives rise to the question of whether the landlord has met her obligation under s.49 RTA which provides that, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”
- In Huang v Ashworh 1 the Tribunal had determined that the landlord should not be entitled to recover more than 3 months’ rent arrears.
- On appeal to the District Court 2 , the Court confirmed that a landlord has an obligation to mitigate rent arrears losses. In circumstances similar to this case, where the landlord had made several attempts to address the rent arears directly with the tenant, the Court said at paragraph [18], “I consider that [the landlord’s] attempts to resolve the issue of rent arrears without resorting to eviction were reasonable, especially for a tenancy that had lasted close to four years. But I qualify that: it is reasonable only up to a point. Where a tenant repeatedly breaches promises to make up arrears and instead additional arrears are incurred there comes a point when it is being naive or careless to your own interests to persist giving the tenant more time to pay. For that reason I do not consider that the full arrears can be claimed. In other words I'm satisfied of balance of probabilities that there was some fairly to mitigate loss but less than that assessed by the Tribunal (3 months).”
- The Tribunal must assess, in the circumstances of each case, whether the steps taken by a party to mitigate claimed losses, were reasonable.
- Here, the landlord did not completely ignore the accumulating losses and tried to make arrangements with the tenant for the arrears to be paid. I accept that the tenant may have given what appeared to be plausible reasons why the rent had not been paid and assurances about their being cleared.
- The landlord is not responsible for delays arising from the time her application to the Tribunal was filed.
- Fundamentally though, from 23 July 2024 when the rent was 21 days in arrears and the landlord was entitled to seek termination of the tenancy, to 11 January 2025 when the application was made, 24 weeks passed, during which time the amount of the arrears steadily increased, more rapidly from 30 November 2024 when the last rent payment was made.
- As was found by the District Court in Huang (above) the tenant’s persistent failure to pay the arrears and to pay the rent when due with the arrears increasing, meant that it would have been reasonable for the landlord to take steps to end the tenancy before she did.
- Three months from the landlord raising the issue of arrears on 23 July 2024, with a continuing increase in the arrears during that time is, in my view, a more than reasonable period for the landlord to have determined whether there was 1 Huang v Ashworth [2023] NZTT 4470826, 4599009 2 Huang v Ashworth [2024] NZDC 15726 any reasonable prospect of the arrears being cleared and the rent being paid when due. Neither of those things happened.
- I accordingly find that it would have been reasonable for the landlord to seek termination of the tenancy no later than 23 October 2024. This application was filed on 11 January 2024 and was heard three months later. Had the application been filed around 23 October 2024 it is fair to assume that it would have been heard by 23 January 2024, in which case the tenancy would have been terminated with arrears of around $17,250.00 owing. It would be unjust to allow the landlord to recover the additional unpaid rent.
- Because [The applicant/s] has succeeded with the claim I must reimburse the filing fee.