Tenantcheck Insights · Case study
Tenancy Tribunal case 5241072 — Boarding House at 103 Whitney Street, New Windsor, Auckland 0600
Decided 10 June 2026 · Published 10 June 2026 · Application 5241072
Dismissed
- Boarding House
At a glance
Key facts from the published tribunal order.
Outcome
Dismissed
From published order
Location
Auckland
Tribunal region
Adjudicator
M Pollak
Dispute themes
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
| Claim | Category | Amount | Awarded to | Reason |
|---|
Order
- The applicant’s application has been dismissed for want of jurisdiction.
Reasons
- The respondent attended the hearing. The applicant did not. She notified the Tribunal on 8 June 2026 she was on leave and would not return to New Zealand until 23 June 2026. Her April 2026 application for an adjournment had not been granted, as she had not provided sufficient evidence to support her application for adjournment.
- I am satisfied that the applicant had received proper notice of the hearing time, date and place, had not had her adjournment request granted and chose to go on holiday rather than to attend the hearing.
- The applicant applied for a declaration as to jurisdiction and for compensation/damages and reimbursement of the filing fee. Jurisdiction
- There was a flatmate agreement provided to the applicant with clear terms and conditions consistent with being a flatmate rather than a tenant It is unclear in the applicant’s application and filed evidence why she was under the belief she was a tenant covered by the Residential Tenancies Act 1986 (RTA).
- The premise is a five-bedroom home with two bathrooms, one kitchen and dining room and one lounge.
- The respondent confirmed the premise is owned by Mr Haider Loan, who rented it to Mr Abdul Qadoos. Neither of these persons lived in the premise. Mr Qadoos sublet the premise to Mr Irfan Abdul Rauf who took on flatmates to help him to pay the rent. Ms Dileesha Sheroni Bandara and her partner were two such flatmates.
- The respondent confirmed that he lived in one of the bedrooms on the first floor and Ms Bandara and her partner lived in another one of the bedrooms on the first floor. They all shared the two bathrooms (located one on the first floor and one on the ground floor) and they shared the lounge, kitchen, dining and laundry facilities. Further, the respondent stated that he had other flatmates come and go for shorter periods of time and that these flatmates also shared the bathroom, kitchen, dining, lounge and laundry facilities. One flatmate lived there from January 2024 to March 2024 and a different flatmate from August 2024 to March 2025.
Is this a boarding house tenancy?
- Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
- The respondent confirmed that there were never 6 or more persons living in the premise at any one time and it was never intended that there would ever be 6 or more occupants. Therefore, I am satisfied that the respondent never envisaged setting up a boarding house and that s66B of the RTA does not apply to the relationship between the head tenant and the flatmate. The law and whether the section 5(1)(n) exception in the RTA applies
- Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 103 Whitney Street, New Windsor, Auckland (the premise) was used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
- “Tenancy” is defined in section 2 of the RTA as follows: “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 ....”.
- Section 5 of the RTA contains the exceptions to the RTA. Relevantly, s5(1)(n) of the RTA provides: “...where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.”
- The sub-tenant confirmed that for the duration of the tenancy, he lived in the house and shared bathroom, kitchen, dining, lounge and laundry facilities with the other 2 to 3 flatmates. He also confirmed that the house was one single dwelling, and the sub-tenant and flatmate areas of the house were not separate to that of the head tenant. The flatmates all rented a bedroom and use of the shared facilities. The tenant and owner never lived at the premise at any time during the period the applicant’s occupation of a bedroom and use of the shared facilities.
- Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
- In reality, the landlord granted the right to the head tenant and the head tenant granted that right to the subtenant who took on no more than 3 flatmates at any one time to occupy the additional bedrooms and to share the other household facilities with him.
- Section 8 of the RTA states: “(1) Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree. (2) Without limiting subsection (1), any such agreement may confer upon the Tribunal, in respect of the tenancy, all or any of the jurisdiction conferred on the Tribunal by this Act in respect of tenancies to which this Act applies”.
- The nature of the relationship between the sub- tenant and the flatmate was recorded in a flat sharing agreement.
- Section 10 of the Act states: “Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.”
- The sub-tenant has proven, that the exception set out in s 5(1)(n) of the RTA does not apply, the flatmate’s relationship with him was one of sub-tenant and flatmate and not landlord and tenant, that s66B of the RTA does not apply and the parties have not contracted into the RTA.
- Therefore, the applicant’s claim that she was a tenant that is covered by the provisions of the Act must fail. Conclusion
- The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
- The Applicant has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied. Name suppression
- The applicant applies for non-publication of her name and identifying details.
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- The applicant has not succeeded in her proceedings.
- I consider publication is in the public interest or justified because of the applicant’s conduct in making this claim and her failing to attend the hearing while putting the respondent to the time and expense of attending the hearing when with reasonable diligence she could have obtained information from the sub-tenant about the number of tenants in the premise and could have accessed the information on the Tenancy Services website or helpline that the Tenancy Tribunal had no jurisdiction over the matter.
- The applicant’s claim for name suppression is dismissed and publication of her name and identifying details ordered
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s10, s2, s4, s5, s5(1), s66, s66B, s8
Key findings
- Dispute theme: boarding house
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5241072?
The tribunal order states: The applicant’s application has been dismissed for want of jurisdiction.
How much money was awarded in case 5241072?
Verified claim lines are listed on this page.
What type of tenancy dispute was case 5241072?
The primary dispute was Boarding House.
Where can I read the official tribunal order for case 5241072?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13725817-Tribunal_Order.pdf.