Published tribunal order
Tenancy Tribunal case 5163621 — Rent arrears at 52B Hotene Street, Whakatane, Whakatane 3120
Decided 10 Oct 2025 · Published 10 Oct 2025 · Application 5163621
- 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 [Tenant 2]’s name and identifying details.
- The application against [Tenant 2] is dismissed.
- Jack Tamihana must pay Thomas Kuhn, Rachel Kuhn, Cusack Partners Limited Christina Eichler Rent arrears to 1 February 2024 $775.00 Tribunal Application Fee$ 27.00 Total Award $802.00 Less Bond -$780.00 AMOUNT PAYABLE BY TENANT$ 22.00
- The Bond must pay the bond centre to Thomas and Rachel Kuhn, through their agent, Cusack Realty, immediately.
Reasons
- Mr Kuhn and [Tenant 2] attended the hearing. Mr Tamihana did not attend. Mr Kuhn’s property manager, Ms Eichler of Cusack Partner’s also attended.
- The landlord has applied for rent arrears. They are claiming a year’s rent for 2024. The application was initially made against Mr Tamihana but was amended by the landlord to include [Tenant 2].
- At the hearing, Mr Kuhn said that he was seeking an order against “whoever is the legal tenant”. An applicant has the onus of proving its claim. It is for Mr Kuhn to establish, on the balance of probabilities who (if anyone) is liable for the rent claimed.
- Mr Tamihana’s tenancy started in 2015. Mr Tamihana was the sole tenant; the bond is held in his name (and has been since 2015). Mr Kuhn purchased the property with the tenancy in place. Cusack Partners managed the tenancy for Mr Kuhn and were his agent.
- The landlord provided the 2015 tenancy agreement (between the owner at the time and Mr Tamihana). The landlord also provided a Variation of Tenancy Agreement signed by the Property Manager and dated 31 August 2022. That document refers to the tenancy commencing on 31 August 2022 and purports to record a rent increase, effective from 19 January 2023. However, both the “current” and “new” rent are recorded as $300. No other changes are recorded on the variation. The document is signed by the Property Manager and, purportedly, initialled by Mr Tamihana and [Tenant 2].
- The landlord also provided a Tenancy Agreement signed by the Property Manager and dated 6 September 2022 (after the “variation”). [Tenant 2] is named as the sole tenant and the tenancy is recorded as starting on 31 August 2022. [Tenant 2] did not sign that agreement. If that document records the parties’ agreement, then Mr Tamihana has not been liable for rent at the premises since 1 September 2022.
- [Tenant 2] says that the 2022 Tenancy Agreement does not record any agreement. She acknowledges that she stayed at the property some times in 2022 and 2023 to support her and Mr Tamihana’s son and Mr Tamihana’s daughter, when Mr Tamihana was in prison for a few months. She said that she advised the Property Manager and went into their office. She recalls signing something but says that it wasn’t a Tenancy Agreement and she never intended or agreed to become liable for the rent.
- [Tenant 2] also claimed that she sent a text to a “Brett” at the Property Manager’s office in or around September 2023, to advise that she was not staying at the property. She also advised that Mr Tamihana returned to prison around that time.
- There was discrepancy between the landlord and his Property Manager as to who the tenant was, and when. Ms Eichler was not involved at the time, and relies on the documentation referred to above, to claim that [Tenant 2] is the tenant. Ms Eichler also referred to a screenshot of receipts sent to [Tenant 2] and Mr Tamihana in 2023, claiming that these were proof of payment from [Tenant 2]. They are not. They are a record of emails apparently sent to [Tenant 2] and Mr Tamihana on the same days and in respect of the same transaction number/receipt. There is no evidence of who the payments were received from. I also note that the receipt dates do not reconcile with the payment dates on the owner’s rent summary.
- I do not agree with Ms Eichler’s assessment of the documents. The landlord has not established that it is more likely than not that [Tenant 2] became a tenant at the premises. The claim against [Tenant 2] is dismissed.
- Mr Kuhn did not appear to know who the tenant was but claimed that the property had been left vacant for a year, for Mr Tamihana, in the hope that MSD would pay the arrears when Mr Tamihana is released from prison.
- The issue I must now consider is whether the landlord has established that Mr Tamihana is liable for rent arrears.
- The landlord claimed arrears of $15,989 for the period ending 21 January 2025.
- The rent summary provided by the landlord does not record consistent rent periods (weeks) and is difficult to follow. It seems to show that rent was in credit throughout 2023, until October. That is around the same time that [Tenant 2] says that she advised the Property Manager that Mr Tamihana had returned to prison and confirmed that she was not at the property.
- The landlord’s rent summary records that payments were made on 13 October, 1 & 14 November and 1 December 2023. Whereas the Property Manager’s evidence from the same period shows receipts for payments on 20 & 30 October, 6, 13, 20 & 27 November 2023.
- The landlord’s rent summary appears to show a lump sum payment of $2,620 being made on 14 December 2023 for the period 19 October to 20 December 2023. Based on that entry, rent must have been in arrears throughout November. A reasonable landlord would have taken steps to either end Mr Tamihana’s tenancy or, at least, properly document the situation at that time.
- According to the landlord’s rent summary, rent went into arrears again on 15 January 2024. At that time, the landlord says that it decided to take no action to end the tenancy or seek payment but kept the property available for Mr Tamihana in the hope that MSD would pay any rent arrears when he was released from prison. The landlord says it made this decision on advice from the Property Manager.
- At some point, it became clear that Mr Tamihana may be incarcerated for longer than the landlord was prepared to wait. It seems that the Property Manager then sent a text to [Tenant 2] telling her to empty the property. The evidence is vague, and there was no evidence of the tenancy being properly terminated by either the landlord (directly or through the Property Manager) or Mr Tamihana. That is, there is no evidence to establish when Mr Tamihana’s tenancy ended.
- Further, the landlord has failed to mitigate any loss which has arisen. I am satisfied that the landlord (whether directly or through its agent, the Property Manager), was aware in or around October 2023 that Mr Tamihana was incarcerated and was not living at the property. It is also clear, that the landlord chose not to end the tenancy, despite significant arrears accruing in the hope that MSD might pay those arrears on Mr Tamihana’s behalf.
- The District Court has confirmed there is a duty to mitigate for rent arrears. What that means is that where a tenant fails to pay rent owing, there is an obligation on the landlord to mitigate the loss. That can be achieved by not allowing the rent to continue to accrue, by ending the tenancy. See s49 Residential Tenancies Act and Huang v Ashworth [2024] NZDC 15726.
- The test of what is required of the landlord to mitigate its loss is a factual one. I am required to consider whether the landlord took all reasonable steps to mitigate is loss and whether it acted reasonably having regard to the circumstances of the case.
- This was not a situation where the landlord has engaged in discussions with the tenant and tried to find a way through escalating arrears. Rather, this is a case where the landlord “sat on its hands” hoping for a payment at some point in the future. There was no evidence of any correspondence with Mr Tamihana advising that his arrears would be paid on release, nor is there any communication from an MSD case worker (or similar), which may have explained the landlord’s actions (or its Property Manager’s advice) in some way.
- I find that the landlord should have taken steps to end the tenancy by the end of January 2024, at the latest. The amount owing for rent to 1 February 2024 was $775.00 (according to the landlord’s rent summary). I award that amount to the landlord. Any loss which has accrued from that date to the (unspecified) end of the tenancy, is because of the landlord’s failure to mitigate.
- As the landlord was partially successful, I have awarded reimbursement of the Tribunal application fee.
- As [Tenant 2] was completely successful, I have suppressed her name and identifying details.