What was Tenancy Tribunal case 5151092 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5151092?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5151092?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5151092?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11435018-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5151092 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5151092?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5151092?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5151092?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11435018-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5151092 — 14-day notice

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s name and identifying details.
The tenancy of Dean Haare at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 6.00 pm on Friday 21 February 2025.
Dean Haare must pay [The landlord/s] $27.00 immediately, being reimbursement of the filing fee.

Reasons

The landlord attended the hearing by phone call.
The tenant was telephoned twice on the phone number provided but the phone call went unanswered. I am satisfied the tenant was properly served with notice of the hearing. The landlord confirmed she also provided the tenant with notice of the hearing on 10 February 2025. The hearing proceeded in his absence.
The landlord is a social housing provider. On 29 January 2025 the landlord gave the tenant 7 days’ notice to terminate the tenancy for the following reasons: a. Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and it would not be reasonably practicable for the tenant to live there while the work is being done. The work must begin immediately, or material steps towards it are to be taken. b. Due to Meth contamination to the property, is no longer safe to occupy this unit. Unit will require extensive repairs to comply with Health and Safety regulations.
The tenant has not vacated the premises pursuant to that notice.
The landlord has now applied for termination of the tenancy for breach of the tenant’s obligations. 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 1 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.
The more serious the claims made the greater the evidential burden on the applicant will be. 2 Termination
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. 3
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone. 1 Kaipo v Clarke & McCarthy (DC) TT233/02, 2 Z v Dental Complaints Assessment Committee [2008] NZSC 55. 3 See section 56(1) Residential Tenancies Act 1986.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours. Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent. The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done.
In Vincent Dean Huff v City Central Property Management 4 the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: ...Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). the breach irremediably arises when the specified failure occurs. It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. The same may apply where there has been a persistent series of breaches, for example, where a tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours.
In Clarke v Housing New Zealand, 5 the Court held that a breach of section 40(2)(b), concerning allegations of possession and use of illegal drugs, was a breach that was incapable of remedy, and there was no requirement to issue a breach notice.
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. 6 Possession and use of methamphetamine is unlawful under the Misuse of Drugs Act 1975.
The following methamphetamine testing has been undertaken on the premises: 4 Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, para [46]-[47] 5 Clarke v Housing New Zealand DC Blenheim, CIV 2008-006-33, 19 March 2008 6 See section 40(2)(b) of the RTA. a. The tenancy commenced on 9 December 2020. On 28 November 2020 a 3 sample composite test of the lounge/bedroom, bathroom and kitchen was taken which provided a result of 0.04 ug/100cm². Pre tenancy testing therefore confirmed negligible methamphetamine residue at the property. b. On 22 January 2025 a 3-sample composite test of the lounge, kitchen and bathroom was taken which provided a result of 10.9 ug/100cm², providing a theoretical maximum of 32.6 ug/100cm². The testing confirms that methamphetamine has been used at the property during the tenancy.
The tenant has breached their obligations by using or permitting the premises to be used for an unlawful purpose. 7 The breach is not capable of remedy.

Should the tenancy be terminated?

In Vincent Dean Huff v City Central Property Management the Court needed to consider the extent of section 56(1)(c), which requires consideration of whether the breach ...”is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy”.
The Court set out a range of factors that would be relevant in that case, being: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.
Having regard to these factors I note: a. The tenancy commenced in 2020 and is therefore a long tenancy. b. There has not been a persistent failure by the tenant to comply with their obligations, although the landlord provided oral evidence of some antisocial behaviour. c. The tenant did not attend the hearing. I therefore consider I can infer the breach to be deliberate. Using the premises for an unlawful purpose is a serious and grave breach of the tenants’ obligations. I consider methamphetamine use giving rise to contamination cannot be permitted to continue. d. There is no evidence that the landlord has acted inappropriately. 7 See section 40 (2) (b) of the RTA.
It would be inequitable to refuse to terminate the tenancy for the reasons above.
The tenancy is terminated. Filing fee
Because the landlord has wholly succeeded with the claim, I must reimburse the filing fee. Suppression
At the hearing the landlord sought suppression and as the application is successful, I have made an order accordingly. 8

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s name and identifying details.
The tenancy of Dean Haare at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 6.00 pm on Friday 21 February 2025.
Dean Haare must pay [The landlord/s] $27.00 immediately, being reimbursement of the filing fee.

Reasons

The landlord attended the hearing by phone call.
The tenant was telephoned twice on the phone number provided but the phone call went unanswered. I am satisfied the tenant was properly served with notice of the hearing. The landlord confirmed she also provided the tenant with notice of the hearing on 10 February 2025. The hearing proceeded in his absence.
The landlord is a social housing provider. On 29 January 2025 the landlord gave the tenant 7 days’ notice to terminate the tenancy for the following reasons: a. Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and it would not be reasonably practicable for the tenant to live there while the work is being done. The work must begin immediately, or material steps towards it are to be taken. b. Due to Meth contamination to the property, is no longer safe to occupy this unit. Unit will require extensive repairs to comply with Health and Safety regulations.
The tenant has not vacated the premises pursuant to that notice.
The landlord has now applied for termination of the tenancy for breach of the tenant’s obligations. 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 1 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.
The more serious the claims made the greater the evidential burden on the applicant will be. 2 Termination
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. 3
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone. 1 Kaipo v Clarke & McCarthy (DC) TT233/02, 2 Z v Dental Complaints Assessment Committee [2008] NZSC 55. 3 See section 56(1) Residential Tenancies Act 1986.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours. Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent. The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done.
In Vincent Dean Huff v City Central Property Management 4 the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: ...Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). the breach irremediably arises when the specified failure occurs. It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. The same may apply where there has been a persistent series of breaches, for example, where a tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours.
In Clarke v Housing New Zealand, 5 the Court held that a breach of section 40(2)(b), concerning allegations of possession and use of illegal drugs, was a breach that was incapable of remedy, and there was no requirement to issue a breach notice.
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. 6 Possession and use of methamphetamine is unlawful under the Misuse of Drugs Act 1975.
The following methamphetamine testing has been undertaken on the premises: 4 Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, para [46]-[47] 5 Clarke v Housing New Zealand DC Blenheim, CIV 2008-006-33, 19 March 2008 6 See section 40(2)(b) of the RTA. a. The tenancy commenced on 9 December 2020. On 28 November 2020 a 3 sample composite test of the lounge/bedroom, bathroom and kitchen was taken which provided a result of 0.04 ug/100cm². Pre tenancy testing therefore confirmed negligible methamphetamine residue at the property. b. On 22 January 2025 a 3-sample composite test of the lounge, kitchen and bathroom was taken which provided a result of 10.9 ug/100cm², providing a theoretical maximum of 32.6 ug/100cm². The testing confirms that methamphetamine has been used at the property during the tenancy.
The tenant has breached their obligations by using or permitting the premises to be used for an unlawful purpose. 7 The breach is not capable of remedy.

Should the tenancy be terminated?

In Vincent Dean Huff v City Central Property Management the Court needed to consider the extent of section 56(1)(c), which requires consideration of whether the breach ...”is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy”.
The Court set out a range of factors that would be relevant in that case, being: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.
Having regard to these factors I note: a. The tenancy commenced in 2020 and is therefore a long tenancy. b. There has not been a persistent failure by the tenant to comply with their obligations, although the landlord provided oral evidence of some antisocial behaviour. c. The tenant did not attend the hearing. I therefore consider I can infer the breach to be deliberate. Using the premises for an unlawful purpose is a serious and grave breach of the tenants’ obligations. I consider methamphetamine use giving rise to contamination cannot be permitted to continue. d. There is no evidence that the landlord has acted inappropriately. 7 See section 40 (2) (b) of the RTA.
It would be inequitable to refuse to terminate the tenancy for the reasons above.
The tenancy is terminated. Filing fee
Because the landlord has wholly succeeded with the claim, I must reimburse the filing fee. Suppression
At the hearing the landlord sought suppression and as the application is successful, I have made an order accordingly. 8

Tenancy Tribunal case 5151092 — 14-day notice

At a glance

Claims & awards

Tenancy Tribunal case 5151092 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions