What was Tenancy Tribunal case 5247873 about?

The tribunal order states: The application is dismissed for want of jurisdiction.

How much money was awarded in case 5247873?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5247873?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5247873?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12216962-Tribunal_Order.pdf.

What was Tenancy Tribunal case 5247873 about?

The tribunal order states: The application is dismissed for want of jurisdiction.

How much money was awarded in case 5247873?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5247873?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5247873?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12216962-Tribunal_Order.pdf.

64 O'Neills Road, Swanson, Auckland 0614 Tenancy Tribunal Case 5247873 — Property damage

Order

The application is dismissed for want of jurisdiction.

Reasons

Both parties attended the hearing which was held remotely by teleconference on 5 August 2025.
Mr and Mrs Prasad appeared in their capacity as Trustees of the Prabha Family Trust, which owns the property. Ms Hu appeared as the legal representative of the Trust.
Mr [The party] appeared in his capacity as sole director of Shorcom Ltd.
The applicant seeks compensation, exemplary damages and reimbursement of the filing fee. However, the respondent challenged whether the jurisdiction was correct given the commercial nature of the tenancy.
Given the issue of jurisdiction has been raised by the landlord, I must determine that at the outset. The purpose of today’s hearing was to hear oral evidence from both parties regarding the nature of the tenancy and the jurisdiction of the Tribunal. Evidence was not heard on the tenant’s substantive claims. Those claims will only be heard where the Tribunal finds it has jurisdiction over this tenancy. Evidential burden
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 (DC) TT233/02, 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.
In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed.
I note that whilst I may not have referred to all of the expansive evidence presented in writing prior to the hearing and orally at the hearing, the parties can be assured that it has all been considered. Facts
The parties described 64 O’Neills Road in Swanson as being a 6.9697 hectare or 17.222 acre lifestyle block that has a 230 square metre four bedroom house, with an ensuite bathroom and a separate bathroom, a double garage that the tenant converted into a master bedroom, a separate lounge, a dinning/kitchen and a 200 square metre commercial shed for the storage of farm equipment. In the unitary plan, the property is classified as “Zone 68”, being “Rural” and the “Waitakere Foothills Zone”.
The parties agree the property in question was advertised as commercial premises for lease under a commercial lease and both parties intended this to be a commercial lease when they entered into it. The commercial “agreement to lease” (“Agreement”)signed by the parties on 20 November 2019 contains terms and conditions common to commercial leases and that would never be found in residential tenancy agreements. For example: a. The lease is for 5 years, at a standard monthly rental of $91,000 plus GST per month, with two further rights of renewal for 3 years each (Refer clauses 1 and 4); b. Clause 6 of the Agreement refers to the “Outgoings Clause 3 of the standard commercial lease (Law Society 6 th Edition)”; c. The applicant is responsible to ensure that the intended activity from the premise is permitted under the Resource Management Act (Refer clause 9); d. The special conditions set out in clauses 9 to 11 that hold the applicant responsible for the costs of maintaining/upgrading the commercial shed and the property, including the replacement of the carpet, in exchange for one month’s free rent from settlement and possession date; and e. The requirement for the applicant to pay a deposit of $15,1666.66 plus GST as a holding deposit for the property which was to be credited as 3 months lease payment upon settlement and possession, taking into account the rent-free period(Refer clause 12) .
Mr Corin, one of the applicant’s signatory directors, confirms that both directors were fully aware they were committing the applicant business to a commercial lease when they signed the lease. Further, Mr Corin confirmed he had entered into both commercial and residential tenancy leases before and was aware of the difference. He also stated he chose to enter into a commercial lease through Shorcom Ltd as the landlord was clear when it advertised the property it wanted a commercial lease, Shorcom Ltd needed somewhere to run its office from and to store some of its construction equipment, tools and materials, and that the business and Mr Corin benefitted from the commercial lease as the rental costs and GST charged were deductible from the business’s gross earnings and its GST payable.
Mr Corin’s evidence was that for much of the initial five-year lease he has been happy with the commercial lease arrangement. However, the relationship between Mr Corin and the Trustees of the Prabha Family Trust began to deteriorate, initially when the applicant company outgrew the premise as it needed to engage more staff, so it leased an office at Level 1, 199 Lincoln Rd Henderson on 17 August 2021. At this time, Mr Corin asked the landlord to release the applicant from its lease obligations early, but the landlord confirmed it intended to hold the applicant to the initial 5-year lease term.
Mr Corin states that in November 2024 the relationship soured considerably when, without any agreement or negotiation, the landlord sought to increase the rent by thirty percent for the next three-year period and required the applicant to pay $11,000 of additional outgoings. In addition, there were concerns raised about some earthworks the applicant had done at the premise that remain contentious.
It is the applicant’s evidence that the landlord knew from the initial negotiations that Mr Corin had separated from his partner in 2019 and needed a place to live where he could also house his three flatmates, all of whom worked for the applicant entity or one of Mr Corin’s other business ventures, and have space for a home based office. Mr Corin also stated that he let locals graze their animals on the land rent free and also allowed a beekeeper to keep his bee hives on the property in exchange for a few pots of honey every now and again.
The landlord stated that Mr Corin and Mr McIntyre were clear that Shorcom Ltd wanted to lease the property under a commercial lease for their construction and project management business, that the house would be used as an office and the commercial shed would be used to store tools, equipment and materials and it says that there was no mention of anyone intending to live on the premise full time.
The applicant claims the landlord was well aware that Mr Corin and his three flatmates intended to live in the majority of the house and to use a portion of the lounge for an office. Mr Corin states the landlord came to view the property after the renovations and that it was obvious the garage had been converted to a master bedroom and that there were three other persons living in the other bedrooms and that the only part of the premise being used for business purposes was part of the lounge and part of the commercial shed. Further, the applicant states he and the flatmates used some of the commercial shed space to store their personal belongings and that at time some of the flatmates stored items that related to their specific trades.
The landlord denies inspecting the house after the renovations and claims it did no more than peer through the door into the lounge area and didn’t enter the premise.
In addition, the landlord directed me to a significant amount of written communications between the parties prior to the tenancy commencing. All of these communications strongly support the landlord’s claim that the intention of the parties when the lease was entered into was that it was a commercial lease of a lifestyle block with specific characteristics that suited the needs of the applicant’s construction business operation. In other words, Shorcom Ltd rented the property to operate its construction business from and more latterly to also run its construction project management services from. Jurisdiction
For claims to be within the Tribunal’s jurisdiction, the relevant premises must be residential premises, refer to s4 of the RTA. The RTA does not apply to commercial premises, meaning premises that are related to trade or commerce and not residential premises , refer to s 5(1)(a) RTA.
Section 2(3) of the RTA provides: “For the purposes of this Act, where any premises that are subject to a legal or an equitable lease are used for both commercial and residential purposes, the premises shall be deemed to be residential premises unless it is proved that the premises were let principally for purposes other than residential purposes.”
It is clear from the facts set out above that the premise has been used for both commercial and residential purposes. Therefore, I must look at whether the premises were let principally for commercial purposes rather than residential premises.
The onus of proof on the issue of jurisdiction rests with the party that contends that the RTA does not apply in respect of the tenancy, see section 10 RTA. In this case that is the landlord. Landlord’s submissions
The heart of the landlord’s oral submissions is: a. The landlord advertised the premise as a lifestyle block with an office/workshop in the light commercial area of Swanson to be let under a commercial lease arrangement. It did not want to let the property for residential purposes as the property offered far more than the four-bedroom house, which could be used as an office instead of as a residential premise. The property also consisted of a considerable amount of rural land, a large commercial shed and a double garage that could be used for commercial purposes; b. Mr Corin and Mr McIntyre, as Shorcom Ltd’s directors were clear that the applicant company wanted to lease the property for its construction business and they entered into the commercial lease agreement for an initial period of five years with two rights of renewal for two further lease periods of three years; c. There was never any intention conveyed to it of Mr Corin renting the property for residential tenancy purposes only or primarily; d. There is email evidence that proves Mr Corin conducted his own research to ensure Shorcom Ltd’s intended activity from the premise is permitted under the Resource Management Act, as Shorcome ltd had an express obligation to do so in accordance with Clause 9 of the Agreement; e. Mr Corin never raised any concerns about the nature of the Agreement until the parties relationship soured in November 2024 and has only sought to have the Agreement recognised as a residential tenancy after the parties failed to reach an agreement on the rent increase for the first renewal term, the applicant ceased paying rent and the landlord issued proceedings in the High Court to end the tenancy; f. Mr Corin informed the Inland Revenue, during a recent audit of the landlord’s business, that Shorcom Ltd leased the property primarily for commercial purposes and only a farm manager resided at the premise for security purposes; and g. In Main v Main [2007] NZCA 306, the Court of Appeal makes it clear that in dual use cases the determinative factor is why the premises were let and not the subsequent use by the tenant. Tenant’s submissions
The heart of the applicant’s submissions are: a. The landlord knew from the negotiation stage that Mr Corin wanted to rent the premise primarily to live in and to house some of his employees and one employee’s wife and intentionally ensured that nothing was ever put in writing to acknowledge that it knew the property was being rented primarily for residential tenancy purposes to evade its obligations under the RTA and to get the applicant to fully refurbish an unliveable premise mostly at the applicant’s cost; b. The landlord refused to allow Mr Corin to rent the property for residential tenancy purposes, and stated it would only lease the property to Shorcom Ltd under a commercial lease arrangement and not to Mr Corin personally; c. Mr Corin wanted the property as it was perfect for his and Shorcom Ltd’s needs, he had leased premises under a commercial lease before and it was to his advantage to lease the property under a commercial lease through Shorcom Ltd, as he would gain monetary advantages personally from this arrangement and there were tax advantages for Shorcom Ltd; d. The landlord visited the premise on several occasions and was well aware that Mr Corin and his three flatmates were living full time at the premise and using a small part of the lounge for a home office with two or three workstations; e. After the November 2024 issues that arose between Mr Corin and the landlord, he undertook some research and has found the landlord is not allowed to lease this property under a commercial lease without resource consent if it is not zoned for commercial use, the commercial lease is unlawful and therefore invalid. It should be set aside and the RTA must therefore apply; f. The applicant produced a number of witness statements from past and current flatmates that all confirm they have lived at the property for lengthy periods of time and that the property address has been used as their residential address for things like their bank accounts, doctors records and the like; g. Mr Corin has lived full time at the property and is the only residential address he has given for any purpose where a residential address is required; h. No GST incurring practices were carried out at the premise.
I note that the Companies Office register records Mr Corin’s residential address, as a company director, as being: a. 50 Lillington Road, Remuera from 4 February 2019 to 23 October 2019; b. 120 Wiseley Road, Hobsonsville from 24 October 2019 to 24 February 2020; c. 50 Lillington Road, Remuera from 25 February 2020 to 19 July 2020; d. 120 Wiseley Road, Hobsonsville from 20 July 2020 to 9 July 2025; and e. 6 Foote Street, Hillsborough from 10 July 2025 to current.
At no time has Mr Corin listed 64 O’Neills Road, Swanson as his residential address in the Companies office records. He claims this was an oversight and that when his mother passed away, in March 2020, he had to change his residential address from Lillington Road as the premise was sold. His explanation for the use of the other addresses as his residential addresses were confusing and not compelling, especially the use of the Wiseley Road address from July 2020 to July 2025 that he moved out of in January 2020. The law and analysis
The RTA is considered to be consumer protection legislation and the Tribunal has applied the RTA, where there is doubt about jurisdiction, to protect landlords and tenants.
However, precedent is likewise clear that the exclusions in section 5 of the RTA should be applied strictly. The District Court has stated that in order to give effect to the RTA’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally. See Adams v Massey University Palmerston North TT 43/94, 10 October 1994.
The Court of Appeal in Main v Main [2007] NZCA 306 sets an important precedent in circumstances of dual use of a premise. The Court of Appeal held that the determinative factor is why the premises were let, and not the subsequent use by the tenant. In this case the Court of Appeal found that the premise, which comprised a land area of 6,235 square metres located within an industrial area on which there was a two-storey building that occupied a relatively small portion of the properties large land area. Part of the ground floor of the building was occupied by the tenant with the remainder being sublet to two other businesses. The tenant was the sole occupant of the smaller first floor of the building. The tenant said he used the first floor as a flat and part of the ground floor for residential purposes. 1 After the tenant’s business was de-registered, he continued to use the remise to operate the storage and second hand dealers business from the premise. Residential occupation was advantageous to those activities. The Court held that the premises were let principally for commercial purposes and the tenant’s residential use was incidental to that principle purpose. Additionally, the Court held in the overall context of the land and buildings, the part occupied by the tenant for residential purposes was very small. 2
That applicant’s lease was for commercial use only of the lifestyle block, the house, the garage and the large commercial shed. It’s director and some of its employees subsequently used part of the premises for living in and part for running the applicant’s business, including storing its tools, equipment and materials and operating its office function and project management services from. and the Court of Appeal inferred that residential occupation would be advantageous to the conduct of the business. The Court of Appeal was of the view that the premises were let principally for commercial purposes and the tenants residential use was incidental to that principle purpose.
The Courts have also held that an objective rather than a subjective test should be applied, see Dexter v Mead (District Court Waitakere, TT 372/03, 27 March 2003, Judge Mathers). In that case, the Court said that “principally” meant “in the chief place, mainly, above all; for the most part, in most cases”, a definition similar to that given in Rodionov v Nicolaou (District Court Lower Hutt, TT 979/00, 8 February 2001, Judge Carruthers), which added “primarily, fundamentally”. The Court there said that the living area was only a small proportion of the overall commercial area, and this meant the premises were principally used for non- residential purposes. It was irrelevant that, from the tenant’s perspective, living there might be as important subjectively as the commercial activities. Further, the lack of proper bathroom and laundry facilities persuaded the Court that the premises were let principally for commercial and not residential purposes: “There are simply not the facilities that one would associate with proper residential purposes”. 1 Main v Main [2007] NZCA 306 at [11] to [12]. 2 Main v Main [2007] NZCA 306 at [13].
Given the above and the wording of s2(3) of the RTA, the intention of the parties when the premises were let is significant and determinative. Having considered both parties evidence, I am satisfied that it is more likely than not that the property was intended by both parties to be principally let for commercial use and the applicant’s residential use was incidental to that principle purpose. Additionally, in the overall context of the land, the house, the garage and the large commercial shed, the part occupied by Mr Corin and his employee/flatmates for residential purposes was very small. The land was sublet for grazing and beekeeping, the applicant ran its business from the lounge in the house, its employees and Director used the bathrooms and kitchen while they were working at the premise. It stored its tools, equipment and materials on the property, and in the large commercial shed and stored its office equipment and supplies in the house. All these items were kept secure due to the residence of Mr Corin and his flatmates/employees.
In applying the Main v Main precedent stated above I am also satisfied that the percentage of the property used for residential purposes is significantly smaller to that used commercially for: a. Subletting the large amount of land for animal grazing and beekeeping; b. Housing employees as they required it to enable them to work more readily for the applicant because they could live at the office at a lower cost than market rental and have their contribution to their accommodation deducted from their wages; c. Using the commercial shed for storage of the applicant’s construction equipment, tools and materials and for its employees work related tools, equipment and materials; d. Using a portion of the lounge, bathroom and kitchen facilities for the construction and project management operation; and e. Using some of the land for storage of the applicant’s construction equipment.
It was the applicant’s director’s responsibility to ensure the applicant abided by the laws of New Zealand and refrained from conducting any illegal business and/or activity at the premise and ensuring the intended activity from the premise was permitted under the Resource Management Act. This includes ensuring the premise is zoned for the applicant’s intended use by the Council.
Also, as in the above-noted cases, it can be safely inferred that residential occupation of part of the premises would be advantageous to the conduct of the applicant’s business and the subletting entities use of the land. Expensive tools/equipment and materials and work-related documents are housed there, animals are grazing there, and bees kept there and were all secure due to the residence of Mr Corin and his flatmates.
Having considered all the evidence, I am satisfied that the premises were let principally for commercial purposes and Mr Corin’s residential use was incidental and subsequent to that primary purpose. Accordingly, the Tribunal does not have jurisdiction and as such all applications, including those for suppression, must be dismissed.

Tenancy Tribunal case 5247873 — Property damage at 64 O'Neills Road, Swanson, Auckland 0614

At a glance

Tenancy Tribunal case 5247873 — Property damage at 64 O'Neills Road, Swanson, Auckland 0614

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions