What was Tenancy Tribunal case 5166642 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 5166642?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $4,964.29 awarded to landlord

What type of tenancy dispute was case 5166642?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5166642?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11692788-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5166642 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 5166642?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $4,964.29 awarded to landlord

What type of tenancy dispute was case 5166642?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5166642?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11692788-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5166642 — Rent arrears

Claims and awards in Tenancy Tribunal application 5166642 — net $4,691.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 9 April 2025	$4,964.29	Rent arrears to 9 April 2025
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$4,691.29
Total payable by Tenant to Landlord	$4,691.29

Claims and awards in Tenancy Tribunal application 5166642 — net $4,691.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 9 April 2025	$4,964.29	Rent arrears to 9 April 2025
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$4,691.29
Total payable by Tenant to Landlord	$4,691.29

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 Christophe John Fawkner Egli at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 11.59pm on Wednesday 9 April 2025.
Christophe John Fawkner Egli must pay [The landlord/s] $4,691.29 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $300.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Only the landlord attended the hearing. Three of the four trustees attended (the lawyer trustee did not attend).
I am satisfied the tenant has been served and so the hearing proceeded in his absence.

BACKGROUND

The circumstances surrounding this tenancy initially appear unusual. The landlord entered into two separate arrangements with two individuals as tenants on two separate standard Tenancy Services template tenancy agreements. One of the individuals is the tenant named in this application. The other (who is no longer a tenant) I will call F.
The two agreements both had the tenancy at the premises start on the same day on 16 January 2023. Both agreements said each person was to pay $150 per week and a bond of $300 each.
The landlord provided evidence that the tenant told the landlord that he wanted to end the ability of F to live at the premises. A message was sent to the landlord on 2 May 2023 setting this out. As part of the exchange the landlord says that if F is to move out because the tenant wants this, then the tenant will be liable to pay the full rent of $300 going forward. The tenant replies agreeing to this and says he does not want to move out. The landlord says that F moved out on 28 May 2023 and they found this out from F.
The landlord says that the tenant did not pay his rent at the start of the tenancy at all between January and March 2023. He made his first payment of rent of $150 on 7 March 2023. The landlord’s say that they were not worried about him not paying at the time because they were helping the tenant into the home. He is a family member who they were helping get on their feet. They did not expect to recover this.
The tenant made his first rent payment of the increased $300 on 6 June 2023 and then paid this sum frequently each week in 2023. Payments became more erratic in 2024. The landlord’s say that payments then stopped after a notice to end the tenancy was issued in February 2025.
The Bond Centre has a record that although $600 was held as a bond at one point $300 now remains at the Bond Centre. The landlord says this would be the tenant’s bond and that the $300 that has been paid out of the Bond Centre would relate to F.

SHOULD THE TENANCY BE TERMINATED?

I accept that the tenant wanted F to move out and made an agreement at that stage with the landlord that he would be liable for the weekly rent of $300. I accept the landlord’s evidence that F moved out on 28 May 2023 as I have no reason to doubt this. The tenant’s rent payment the following week increased to $300 in line with this.
I am satisfied from the rent records provided that the rent was at least 21 days in arrears on the date the application was filed. The tenancy is terminated. See section 55(1)(a) Residential Tenancies Act 1986 (RTA).

HOW MUCH SHOULD BE PAID IN RENT ARREARS?

I must now consider the claim for arrears in more detail.
The landlord’s rent summary was not prepared correctly but time was given at the hearing for the landlord to clarify the position.
I am satisfied that the rent summary provided details all payments made by the tenant during the course of the tenancy. I am satisfied that the following summary represents the sums due and paid during this tenancy to the date of the hearing: a. 16 January 2023 to 29 May 2023 (19 weeks and 1 day) @ $150 per week = $2871.43 owed (arguably the landlord is due increased rent from 29 May rather than 30 May but the landlord was satisfied to leave it like this as per the note they had prepared to allow the hearing to proceed expediently) b. 30 May 2023 to 8 April 2025 (97 weeks and 1 day) @ $300 = $29,142.86 ($2871.43 + $29,142.86 = $32,014.29) c. Sum paid by tenant for whole of tenancy $25,100 d. Difference = $6,914.29 (landlord note refers to $6,914.27 not $6,914.29 due to rounding)
The rent arrears at the time the application was filed were significant taking into account that the weekly rent is $300.
As well as the period at the start of the tenancy, in which there were 7 weeks of unpaid rent, several weeks were missed at various intervals during the course of the tenancy prior to December 2024. Matters however became more erratic from December 2024 with payments becoming sporadic. The application to terminate was made on 16 February 2025.
As explained in the hearing there is an obligation under the RTA that the landlord mitigate loss. That requirement is found in section 49 which holds:
Mitigation of damage or loss 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.
What are the rules of law relating to mitigation of loss or damage following a contract breach? The rules of law are summarised in Halsbury’s Laws of England (4th ed, 1975) vol 12 at [1193]–[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. “The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.”
In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689, Lord Haldane described the rule as to mitigation of loss as follows: That the law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate is a question of fact dependent upon the particular circumstances of each case.
The learned authors of Law Of Contract in New Zealand 5th ed, p.842 state: The burden which lies on the defendant of proving that the plaintiff has failed in his or her duty of mitigation is by no means a light one, for this is a case where a party already in breach of contract demands positive action from one who is often innocent of blame.
It is open to the Tribunal to reduce the level of rent ordered to be paid, following a finding that the landlord failed to mitigate their loss. It is worth noting for example, the District Court decision of Dunn and Dunn v Beedie and Beedie CIV-2014-088-000349. In that case the Tribunal (Adjudicator Blake) determined that: In this instance the Beedies breached the agreement by falling into rent arrears. Mr & Mrs Dunn took some steps but failed to take the ultimate step, which was to terminate the tenancy. In recognition of this failure to properly mitigate the loss I have reduced the amount of rent arrears owed by 10%.
The Dunns’ appealed the Tribunal’s decision to the District Court. What happened then was somewhat unusual because the Beedies requested that the appeal be found in the landlords favour thereby requiring that they pay the full arrears to the landlord, but the Court commented that: I note in passing that the adjudicator could not be faulted for rightly pointing to s 49 of the Act and there have been cases where that clause has worked to reduce rent arrears where failure to mitigate exists.
The issue has recently been considered in the District Court in Huang v Ashworth [2024] NZDC 15726. In this case the District Court confirmed there is a duty to mitigate for rent arrears.
In this case, for the reasons set out below, I am not persuaded that the landlord has acted reasonably when pursuing the rent debt. The landlord has failed to mitigate their loss. This is because where rent arrears are accumulating, ordinarily, the Tribunal would expect to see an application being brought within around 6-8 weeks, 10 at the most. There is then usually a short period before the hearing can take place.
In Semmens v Wadman Adjudicator Woodhouse succinctly set out what would normally be seen when a landlord has a tenant who is not paying rent. He observed: What would normally be seen, is that is that a landlord when faced with increasing arrears, would file an application with the Tribunal to have the rent arrears paid, or the tenancy terminated.
I agree with Adjudicator Woodhouse that this is what is usually seen in respect of arrears. This was also explored in Huang v Ashworth where it was held that: If either the landlord or the tenant breaches the provisions of the tenancy agreement or the Act, the other party must take reasonable steps to minimise any loss arising from that breach. Accordingly, where the tenant fails to pay rent owning, there is an obligation on that landlord to mitigate the loss. This can be achieved by not allowing the arrears to continue to accrue, instead ending the tenancy and reletting the premises thereby preventing ongoing loss.
When this was discussed with the landlord at the hearing, the landlord was candid and open to the fact they did not expect to recover the missed arrears from the start of the tenancy because they were at the time content to let this pass.
I therefore decline to award these arrears from the start of the tenancy. It would be unfair to award these as the landlord did not seek to recover these initially as part of the Tribunal process (they were ignored in the initial application) and the landlord has only added them to their rent summary today when asked by me why their rent summary did not start from the beginning of the tenancy. If I did award these arrears then sum awarded to the landlord would be reduced overall in any event to take into account mitigation principles and the fact that that this application to terminate could have been bought far, far earlier had the landlord relied upon and expected to recover these arrears.
Therefore, disregarding those earlier arrears I find that the tenant started to fall significantly into arrears in the latter part of 2024. However, even at this time he was still sometimes paying the full weekly rent and sometimes paying a contribution (if not the full amount). Weeks were however repeatedly missed in December 2024 leading into the start of January. I consider that it is at this point that the landlord should have lodged an application to the Tribunal but instead, the landlord waited until mid-February. I therefore consider that the rent arrears should be deduced by three weeks rent to take into account this period of inaction.
I note that the landlord says that they sent the tenant messages via instant messenger about rent but as they have now been blocked by the tenant they cannot access those messages. They also referred to a letter but no details about this was provided and a copy not made available. There is therefore no detail about any effort made to chase up rent arrears.
I therefore award rent arrears as follows: a. From start of tenancy 16 January 2023 to 7 March 2023 (7 weeks 2 days) – Sum awarded nil b. Total that is payable from 8 March 2023 (being the date on line 1 of the landlord’s rent summary) to the date of hearing on 8 April 2025 totalling $30,921.43 being: i. From 8 March 2023 to 29 May 2023 at $150 per week sum payable (11 weeks, 6 days) – $1,778.57 payable ii. From 30 May 2023 to 8 April 2024 at $300 per week (97 weeks and 1 day) $29,142.86 payable c. Less the $25,100 paid during the course of the tenancy (takes the running arrears total to $5,821.43) d. Less a deduction of 3 weeks rent ($900) to take into account the landlord’s failure to mitigate loss between the start of January 2025 and the middle of February 2025. e. Total rent arrears payable to date of hearing on 8 April (taking into account reduction for failure to mitigate): $4,921.43 f. I award an extra day’s rent to take into account the fact the tenancy does not terminate until tomorrow – plus $42.86 g. Total arrears award to 9 April 2025 - $4,964.29

EXCLUDED TENANCY

For the sake of completeness, I note that while this tenancy includes family members as the tenant and the landlord, the landlord considers that the RTA applies because they wanted the RTA to apply to the tenancy and provided reasons why that was the case. They say they wanted the protection of the Act.
Despite that an exclusion can apply where there is a tenancy involving family (see section 5(1)(n) RTA) I am satisfied that the exclusion does not apply here and that the parties have contracted back into the RTA.
This is because there is a signed tenancy agreement on a standard Tenancy Services template and the bond has been collected and lodged with the Bond Centre (see Fetherston v Barfoot and Thompson Limited [2015] NZDC 12810).

FILING FEE AND NAME SUPPRESSION

I have awarded the landlord the filing fee and name suppression as they have been substantially successful (see section 95A RTA).

Tenancy Tribunal case 5166642 — Rent arrears

At a glance

Tenancy Tribunal case 5166642 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

SHOULD THE TENANCY BE TERMINATED?

HOW MUCH SHOULD BE PAID IN RENT ARREARS?

EXCLUDED TENANCY

FILING FEE AND NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

SHOULD THE TENANCY BE TERMINATED?

HOW MUCH SHOULD BE PAID IN RENT ARREARS?

EXCLUDED TENANCY

FILING FEE AND NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions