How much money was awarded in case 5175153?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5175153?

The dispute type was not classified.

Where can I read the official tribunal order for case 5175153?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11636654-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 5175153?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5175153?

The dispute type was not classified.

Where can I read the official tribunal order for case 5175153?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11636654-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5175153 — Tenancy dispute

Q: What was Tenancy Tribunal case 5175153 about?

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

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] at 5pm on Friday, 28 March 2025.
James Desmond Wall must pay [The landlord/s] $27.00 being the filing fee on this application.

Reasons

Both parties attended the hearing.
[The landlord/s] has applied for possession of the premises following termination of a tenancy.
Mr Wall opposed the application on the basis that there is no tenancy, he has an interest in the property and this Tribunal does not have jurisdiction to determine the issues. Background
[The landlord/s] is the legal owner of the premises. She purchased the property in 2015 and has been the sole registered owner since then.
Mr Wall says that the property was bought as a joint venture investment between him and [The landlord/s]. He referred me to an unsigned Declaration of Trust Deed which he claims records the parties’ arrangements. He also says that the parties have acted consistent with that unsigned Deed.
Mr Wall also claims to have a beneficial interest in the property because of work (particularly landscaping) carried out at the property.
[The landlord/s] disputes Mr Wall’s characterisation of their relationship. She does not agree that the unsigned Declaration of Trust Deed records their agreement or the beneficial ownership of the premises. She does acknowledge that she and Mr Wall agreed to share any profit made on the property. She says that is because Mr Wall identified it as a sound investment and handled the negotiations. She also said that Mr Wall owed her other money at the time, and the profit-sharing arrangement gave her comfort that she would be repaid.
[The landlord/s] says that Mr Wall has possession of the premises pursuant to a tenancy arrangement. She says that the initial arrangement was that Mr Wall would pay $335.00 per week rent. Mr Wall’s written submission to the Tribunal records that that amount was “market rent” at the time. Mr Wall also claims that the amount was calculated (by [The landlord/s] to reflect his contributions to the outgoings as set out in the unsigned Declaration of Trust. [The landlord/s] disputes that.
[The landlord/s] gave notice of rent increases in 2016 and 2024. In both instances, [The landlord/s] provided 60 days written notice as required by the RTA. Mr Wall acted on those notices of rent increase. [The landlord/s] also sent other notices under the RTA when rent was late.
In 2019 or 2020 the parties entered into a written tenancy agreement. The agreement was backdated to 2015. Curiously it records the rental as $340 per week, even though Mr Wall was paying $500 per week by the time the Tenancy Agreement was signed. Mr Wall says that the Tenancy Agreement does not accurately record the parties’ relationship and the sole purpose for the written agreement was so that he could try to obtain an accommodation benefit from the Ministry of Social Development.
On 22 November 2024 [The landlord/s] issued a Notice to Terminate the Tenancy. She provided 90 days’ notice and said that she intended to sell the property. See s51(2)(a) RTA. The date stated for termination was 22 February 2025.
Mr Wall did not respond to the Notice or numerous follow up messages [The landlord/s] until he sent a text message on 20 February 2025, stating: “We have no intention of moving out of a property I own 50% of.”
[The landlord/s] then applied to the Tribunal for a possession Order. The Law
Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies.
Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement
Section 64 RTA provides that the Tribunal must grant a possession order to any person entitled to possession of the premises following the termination of a tenancy. Except that, a possession order cannot be made more than 90 days after the termination of the tenancy.
Section 65 RTA provides that where the Tribunal is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person, the Tribunal shall make a possession order granting possession of the premises to the applicant. The Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
It is well established that any claim for a resulting trust is for the High Court to consider before it would be relevant for a defence to a possession order in Tribunal. See Willigers v Churchill Fishing International Limited [2020] NZHC 2212 (Paragraph 14).
The Willigers decision has been consistently applied by the Tribunal. See Owner v Occupier [2022] NZTT 4325433 which was an application for a possession order. The Respondent argued that there was a constructive trust claim they could make against the owner. A possession order was granted, because all the defence amounted to was a potential future claim.
Similarly, in Owner v Occupier [2022] NZTT 4317845 The Tribunal confirmed that it does not have jurisdiction to determine merits of matters that would fall within the jurisdiction of another judical body (High Court in this case), so the possession order was granted. Discussion & Findings
Mr Wall submitted that this was not an “arms length” tenancy. The RTA does not draw any such distinction. Mr Wall did not argue that any of the specific exclusions in the RTA applied to this situation, rather his defence was solely that he is a 50% beneficial owner of the premises and as such the Tribunal has no jurisdiction to hear [The landlord/s] application.
On its face, this is a tenancy arrangement. The legal owner, [The landlord/s] granted Mr Wall the right to occupy residential premises in return for rent. A tenancy agreement is not enforceable just because it was not recorded in writing.
The notice of termination dated 22 November 2025 complies with the requirements of s51(2) RTA. The tenancy ended on 22 February 2025, which is less than 90 days ago. The requirements of section 64(1) of the Residential Tenancies Act 1986 are satisfied. I grant a possession order accordingly.
If I am wrong, and there is no tenancy, I grant a possession order under s65 RTA because Mr Wall has possession of the premises otherwise than pursuant to a right of occupation granted by [The landlord/s] (the legal owner of the premises).
Throughout the hearing, I raised with Mr Wall that if there was no tenancy, I would have to grant a possession order because [The landlord/s] (as the legal owner of the premises) has revoked permission for him to have possession of the premises. I provided the parties with a copy of the Willigers decision and granted an adjournment for Mr Wall to consider his position.
Mr Wall said that Willigers is distinguishable because in that case the occupier had not made improvements to the property or made payments to the owner. Those points might be relevant to whether Mr Wall has an interest in the premises but does not address the point that any claim for a resulting trust (or any beneficial interest in the premises) is for the High Court to consider before it would be relevant for a defence to a possession order in Tribunal.
Mr Wall also claimed that he has an ongoing right to occupy the premises by virtue of the unsigned Declaration of Trust Deed. I accept that clause 4 of the Appendix to the document records that Mr Wall will reside in the premises. I am not persuaded that that document gives Mr Wall an irrevocable right to occupy the premises. [The landlord/s] disputes the contents of that document. Further, it is apparent that the parties have not acted consistently with the clauses of that appendix – for example there was no evidence that Mr Wall made payments of $362,500 to the mortgage.
I agree with Mr Wall, that this Tribunal cannot and should not attempt to resolve an underlying dispute regarding the beneficial ownership of the premises.
Mr Wall has not made an application to the High Court for his (claimed) interested in the property to be recognised. I cannot look behind the legal ownership of the premises for the purposes of this application. See Owner v Occupier [2022] NZTT 4317845. Mr Wall does not have consent or permission from the legal owner to occupy or have possession of the premises, so I must grant a possession order.
As [The landlord/s] was the successful party, I also grant reimbursement of the Tribunal application fee.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.

[The landlord/s] is granted possession of the premises at [Tenancy address suppressed] at 5pm on Friday, 28 March 2025.

James Desmond Wall must pay [The landlord/s] $27.00 being the filing fee on this application.

Reasons

Both parties attended the hearing.

[The landlord/s] has applied for possession of the premises following termination of a tenancy.

Mr Wall opposed the application on the basis that there is no tenancy, he has an interest in the property and this Tribunal does not have jurisdiction to determine the issues. Background

[The landlord/s] is the legal owner of the premises. She purchased the property in 2015 and has been the sole registered owner since then.

Mr Wall says that the property was bought as a joint venture investment between him and [The landlord/s]. He referred me to an unsigned Declaration of Trust Deed which he claims records the parties’ arrangements. He also says that the parties have acted consistent with that unsigned Deed.

Mr Wall also claims to have a beneficial interest in the property because of work (particularly landscaping) carried out at the property.

[The landlord/s] disputes Mr Wall’s characterisation of their relationship. She does not agree that the unsigned Declaration of Trust Deed records their agreement or the beneficial ownership of the premises. She does acknowledge that she and Mr Wall agreed to share any profit made on the property. She says that is because Mr Wall identified it as a sound investment and handled the negotiations. She also said that Mr Wall owed her other money at the time, and the profit-sharing arrangement gave her comfort that she would be repaid.

[The landlord/s] says that Mr Wall has possession of the premises pursuant to a tenancy arrangement. She says that the initial arrangement was that Mr Wall would pay $335.00 per week rent. Mr Wall’s written submission to the Tribunal records that that amount was “market rent” at the time. Mr Wall also claims that the amount was calculated (by [The landlord/s] to reflect his contributions to the outgoings as set out in the unsigned Declaration of Trust. [The landlord/s] disputes that.

[The landlord/s] gave notice of rent increases in 2016 and 2024. In both instances, [The landlord/s] provided 60 days written notice as required by the RTA. Mr Wall acted on those notices of rent increase. [The landlord/s] also sent other notices under the RTA when rent was late.

In 2019 or 2020 the parties entered into a written tenancy agreement. The agreement was backdated to 2015. Curiously it records the rental as $340 per week, even though Mr Wall was paying $500 per week by the time the Tenancy Agreement was signed. Mr Wall says that the Tenancy Agreement does not accurately record the parties’ relationship and the sole purpose for the written agreement was so that he could try to obtain an accommodation benefit from the Ministry of Social Development.

On 22 November 2024 [The landlord/s] issued a Notice to Terminate the Tenancy. She provided 90 days’ notice and said that she intended to sell the property. See s51(2)(a) RTA. The date stated for termination was 22 February 2025.

Mr Wall did not respond to the Notice or numerous follow up messages [The landlord/s] until he sent a text message on 20 February 2025, stating: “We have no intention of moving out of a property I own 50% of.”

[The landlord/s] then applied to the Tribunal for a possession Order. The Law

Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies.

Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.

Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement

Section 64 RTA provides that the Tribunal must grant a possession order to any person entitled to possession of the premises following the termination of a tenancy. Except that, a possession order cannot be made more than 90 days after the termination of the tenancy.

Section 65 RTA provides that where the Tribunal is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person, the Tribunal shall make a possession order granting possession of the premises to the applicant. The Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.

It is well established that any claim for a resulting trust is for the High Court to consider before it would be relevant for a defence to a possession order in Tribunal. See Willigers v Churchill Fishing International Limited [2020] NZHC 2212 (Paragraph 14).

The Willigers decision has been consistently applied by the Tribunal. See Owner v Occupier [2022] NZTT 4325433 which was an application for a possession order. The Respondent argued that there was a constructive trust claim they could make against the owner. A possession order was granted, because all the defence amounted to was a potential future claim.

Similarly, in Owner v Occupier [2022] NZTT 4317845 The Tribunal confirmed that it does not have jurisdiction to determine merits of matters that would fall within the jurisdiction of another judical body (High Court in this case), so the possession order was granted. Discussion & Findings

Mr Wall submitted that this was not an “arms length” tenancy. The RTA does not draw any such distinction. Mr Wall did not argue that any of the specific exclusions in the RTA applied to this situation, rather his defence was solely that he is a 50% beneficial owner of the premises and as such the Tribunal has no jurisdiction to hear [The landlord/s] application.

On its face, this is a tenancy arrangement. The legal owner, [The landlord/s] granted Mr Wall the right to occupy residential premises in return for rent. A tenancy agreement is not enforceable just because it was not recorded in writing.

The notice of termination dated 22 November 2025 complies with the requirements of s51(2) RTA. The tenancy ended on 22 February 2025, which is less than 90 days ago. The requirements of section 64(1) of the Residential Tenancies Act 1986 are satisfied. I grant a possession order accordingly.

If I am wrong, and there is no tenancy, I grant a possession order under s65 RTA because Mr Wall has possession of the premises otherwise than pursuant to a right of occupation granted by [The landlord/s] (the legal owner of the premises).

Throughout the hearing, I raised with Mr Wall that if there was no tenancy, I would have to grant a possession order because [The landlord/s] (as the legal owner of the premises) has revoked permission for him to have possession of the premises. I provided the parties with a copy of the Willigers decision and granted an adjournment for Mr Wall to consider his position.

Mr Wall said that Willigers is distinguishable because in that case the occupier had not made improvements to the property or made payments to the owner. Those points might be relevant to whether Mr Wall has an interest in the premises but does not address the point that any claim for a resulting trust (or any beneficial interest in the premises) is for the High Court to consider before it would be relevant for a defence to a possession order in Tribunal.

Mr Wall also claimed that he has an ongoing right to occupy the premises by virtue of the unsigned Declaration of Trust Deed. I accept that clause 4 of the Appendix to the document records that Mr Wall will reside in the premises. I am not persuaded that that document gives Mr Wall an irrevocable right to occupy the premises. [The landlord/s] disputes the contents of that document. Further, it is apparent that the parties have not acted consistently with the clauses of that appendix – for example there was no evidence that Mr Wall made payments of $362,500 to the mortgage.

I agree with Mr Wall, that this Tribunal cannot and should not attempt to resolve an underlying dispute regarding the beneficial ownership of the premises.

Mr Wall has not made an application to the High Court for his (claimed) interested in the property to be recognised. I cannot look behind the legal ownership of the premises for the purposes of this application. See Owner v Occupier [2022] NZTT 4317845. Mr Wall does not have consent or permission from the legal owner to occupy or have possession of the premises, so I must grant a possession order.

As [The landlord/s] was the successful party, I also grant reimbursement of the Tribunal application fee.

Tenancy Tribunal case 5175153 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 5175153 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions