What was the outcome of Tenancy Tribunal case 5137568?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5137568?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5137568?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5137568?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11413407-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5137568?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5137568?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5137568?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5137568?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11413407-Tenancy_Tribunal_Order.pdf.

17 Trimaran Drive, Gulf Harbour, Whangaparaoa 0930 Tenancy Tribunal Case 5137568 — Exemplary damages

Order

The tenant’s application is dismissed.

Reasons

The Tribunal must consider an application filed by the tenant, seeking to have a termination notice set aside. The termination from the landlord was on the basis that the owner wished to move into the premises. The tenant claims the notice was not valid, submitting that the owner was overseas, and the real reasons were a continuing dispute over the premises.
I convene the hearing today in the North Shore District Courthouse. In attendance was Ms Koning attending by telephone (at her request), and Ms Ping Hu, one of the co-landlords, represented by a property manager, Ms Cai.

BACKGROUND

The background in this case is now reasonably involved.
The tenancy commenced on 13 December 2016. The landlord at that time was “LJ Hooker Metro City Branch”. The sole tenant is Renate Koning.
As I will discuss below, at some point in time the landlord changed. At the hearing today, both parties advised me the landlord was Ms Hu and Mr Zhang.
Various disputes have arisen over recent times at least, as demonstrated in earlier disputes to come before the Tribunal.
The Tribunal issued a decision on 3 April 2023, ordering that the landlord pay compensation and exemplary damages to the tenant in relation to defects with the premises. One of the issues in that application was whether the landlord had given a valid notice to terminate the tenancy. That aspect of the claim was adjourned so that the owner could provide evidence in relation to the termination matter.
On 12 December 2023 the Tribunal issued an updated order, in relation to rent being $500 until the garage was fixed.
On 12 February 2024 the Tribunal issued the final order on that claim, recording that the tenants’ remaining claims were withdrawn. The Adjudicator records: Reasons:
The tenant attended the hearing, the landlord did not attend. The Tribunal rang the landlord on the mobile number provided in the application, but it went unanswered. The landlord did not appear at the hearing on 3 April 2023.
This was a part heard matter from April 2023. The tenant has been successful with her applicant relating to compensation for electrical work, rent rebate and for the landlord breaching his obligation under the Residential Tenancies Act 1986, to maintain the property.
In the original application the tenant also sought the cancellation of a Notice to Terminate issued by the Landlord, but not served on the tenant appropriately, nor pursued by the landlord.
There had been an issue with a Notice to Terminate the tenancy. That was adjourned to today’s date for proof of service of that Notice. Despite the Notice to Terminate the tenant remains in the property. The tenant wishes to stay in the property and does not want to move.
In addition, the tenant sought moving costs and a work order to fix the garage.
Those matters were adjourned to today’s hearing. However, the tenant does not wish to pursue any further claims and is happy to carry on paying her reduced rent and staying in the property.
All matters raised in the application and not dealt with in the last hearing in April 2023 are withdrawn.
While I have not been provided with a copy of the notice, both parties agree that in or around December 2024, the landlord gave the tenant a notice terminating the tenancy on the grounds that the landlord was to move into the premises. I am told the final date of the tenancy would be 13 March 2025.
The tenant filed this new application with the Tribunal, seeking to have the new termination notice set aside.

TENANTS CASE

The tenants position is that the December 2024 termination notice is not valid, and should be set aside.
In particular, the tenant submits that the landlord lives in China, and had no intention of moving into the tenancy premises.
The tenant refers to the previous dispute that went through the Tribunal, and submits that the reason the landlord wanted her out, was a continuation of the grievance that has gone on over the past few years.
The tenant states that the landlord has not done the required work to the garage, and given her disability, she has been unable to leave the premises for some two years. The tenant also states that the landlord has not paid the money that was owed to her from the earlier Tribunal order.
The tenant seeks an order setting aside the termination notice.
I asked the tenant who her current landlords were. The tenant states it was Ms Hu and Mr Zhang.

LANDLORDS CASE

Ms Cai is the property manager and provided submissions for the landlord.
Ms Cai states that in December the owners advised her that they were to move back to New Zealand, and wanted to move into the premises. Therefore instructions were given to end Ms Koning’s tenancy.
A termination notice was then issued, providing 63 days notice, with the tenancy ending on 13 March 2025.
I record that Ms Ping Hu was also at the the hearing, and she confirmed that she wanted to move herself and children into the premises.

RELEVANT LEGAL CONSIDERATIONS

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 and expectations.
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 fractionally 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.

ANALYSIS

I begin by noting that that one of the grounds a landlord can terminate a tenancy is if the landlord or a member of their family wants to move into the premises. That is confirmed in section 51(1)(a) of the RTA, which holds: 51 Termination by notice (1) landlord may terminate a periodic tenancy by giving at least 63 days’ notice if— (a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family; or
As noted above, the onus to establish the claim sits with the person bringing it, the tenant in this case. The tenant must provide at least prima facie evidence to show that the termination notice was not valid, and I find she has not done so.
The primary reason the tenant considered the notice was not valid, was because she believed the landlord was living in China. The tenant states in her application (in part): I have been given notice of 63 days to vacate my home because the owners want to move in. This is the second time that I have been given notice. I believe this is the untruth as the owner lives in China.
In fact Ms Hu was at the hearing today in person, and she explained that she wanted to move into the tenancy with her children. I have no reason not to believe that is the case.
Ms Koning further states that the notice was motivated on the basis of the dispute that has been simmering over the years, and the fact the landlord has not complied with the tribunal's earlier orders. While that is possible, Ms Koning has not convinced me that situation is more likely than not.
I note here that the claims were last in the Tribunal one year ago, and while the tenant had some success, the tenant withdrew the final claims. Accordingly there is not a close link in time between that proceeding and the termination notice.
But even if the landlord had not paid the money required or done necessary work, that does not of itself prove an unlawful motivation on the landlord’s part. If the tenant did not consider that the landlord had complied with the earlier orders, her remedy was to have those orders enforced. In fact that is just what Ms Northwood, the earlier adjudicator, had said to the tenant. In the 12 December 2023 order, Ms Northwood wrote:
On 3 April 2023, the Tribunal ordered that the landlord pay the tenant $3525.14 for compensation, filing fee, rent rebate and exemplary damages. To date the landlord has not paid the tenant any money towards the debt.
The order of 3 April 2023 stands, and the tenant can seek enforcement of this order through the District Court collection team on 0800 233 222.
Based on the evidence currently before the Tribunal, the Tribunal finds that the termination notice was valid, so the tenant’s application to have that set aside is dismissed.
That means the tenancy will come to an end on the landlords notified termination date.
I conclude by noting that the landlord considers there are claims the tenant needs to respond to, including rent and water arrears. As I noted today, because the only claim before me is from the tenant, I could not consider those further claims.
If either party has further claims against the other, then that will need to be the subject of a new application with the Tribunal, and the Tribunal could consider those claims another day.

Tenancy Tribunal case 5137568 — Exemplary damages at 17 Trimaran Drive, Gulf Harbour, Whangaparaoa 0930

At a glance

Tenancy Tribunal case 5137568 — Exemplary damages at 17 Trimaran Drive, Gulf Harbour, Whangaparaoa 0930

At a glance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions