What was Tenancy Tribunal case 5266480 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 5266480?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5266480?

The primary dispute was Rent arrears. Related themes: Unit Titles.

Where can I read the official tribunal order for case 5266480?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12192523-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5266480 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 5266480?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5266480?

The primary dispute was Rent arrears. Related themes: Unit Titles.

Where can I read the official tribunal order for case 5266480?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12192523-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5266480 — Rent arrears

Tenantcheck Insights

New Zealand Tenancy Tribunal Case 5266480 — Rent arrears | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5266480. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Claim types — money lines allowed on this order

Filing Fee

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 landlord’s application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, water rates arrears, compensation and reimbursement of the filing fee.
The tenant has challenged the Tenancy Tribunal’s jurisdiction to hear the landlord’s claims.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). 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.
The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision.

JURISDICTION

Does the Tenancy Tribunal have jurisdiction to hear the landlord’s claims? Background

The tenant confirmed that Darlinghurst Apartments Limited is a legal entity owned by the same owners of the [hotel name suppressed], and that this legal entity exists for the purpose of leasing and managing the privately owned units primarily for short term accommodation to persons seeking serviced and furnished accommodation within the hotel complex. It confirmed that most persons rent the serviced apartments in its portfolio for between 2 days to a month, and that most stays are on average for 2.5 days.
The landlord says that the commercial agreement to lease it signed was prepared by the tenant, was supposed to be a residential tenancy agreement like the one signed in 2015, and that it was always the landlord’s understanding that the tenant was renting the premise for residential tenancy purposes, to provide accommodation to the tenant’s employees that work as property managers for Darlinghurst Apartments Ltd. Further the landlord states that the terms of the commercial agreement to lease, particularly clauses 12 and 17 in the First Schedule and clause 2 in the Third Schedule, prove the tenancy is a residential tenancy for which the Residential Tenancies Act 1986 (“RTA”) applies. Specifically, the landlord claims: a. Clause 12 of the First Schedule makes it clear that the tenant is to use the apartment for “business use for short or long stay accommodation”, and he says that the word “accommodation” means residential tenancy; b. Clause 17 of the First Schedule crosses out all the types of costs the tenant would usually be responsible for except for the “charges for water, gas, electricity, telecommunications, and other utilities or services, including line charges” and “rubbish collection and recycling charges”; and c. Clause 2.1(a) of the Third Schedule states the tenant “operates a property management business and will use the premises for the purposes of such business”.
The tenant confirmed the following: a. The apartment was leased by the tenant for the business purpose of providing temporary short-term accommodation in the [hotel name suppressed] for persons wanting to occupy a 2-bedroom furnished and serviced apartment within the [hotel name suppressed], ordinarily for periods of less than 28 days, but occasionally for periods of up to one month. As such, the commercial lease agreement provides for short- and long-term stays. However, the tenant confirmed that most stays/occupations are for between 2 to 3 days; b. The tenant never intended to use the premise for its property managers to use as residential premises, the commercial lease agreement does not mention it wanting to use the apartment for service tenancies for its employees, and it sometimes does house its employees in the studio apartments but would never house its employees in a 2-bedroom apartment such as apartment 8H. It has no idea what has led the landlord to believe the apartment is being leased for this purpose and denies that assertion; c. It agrees that clause 12 of the First Schedule is clear that the business use the property management company has entered into the commercial lease agreement to lease is to let the apartment out as “short or long stay accommodation”, and that the definition of “accommodation” in this context does not mean residential tenancy but means stay. The Oxford dictionary defines the word “accommodation” as “a room, group of rooms, or building in which someone may live or stay”. In this context people pay the property management company to stay in the apartment, ordinarily for short term stays, and occasionally for slightly longer-term stays, but they are never tenants renting the apartment; d. Clause 17 of the First Schedule crosses out all the types of costs the tenant would usually be responsible for except for the “charges for water, gas, electricity, telecommunications, and other utilities or services, including line charges” and “rubbish collection and recycling charges” because the commercial model under which these type of lease agreements operate in a hotel context can operate in two ways when it comes to costs: i. The first is a gross lease model where the landlord/owner of the apartment pays for all the body corporate related costs and gets full market rent for the apartment, regardless of occupancy rates for the apartment and the tenant absorbs all repair and maintenance costs and only passes on capital investment costs, such as purchasing a new washing machine, gas hob, stove or hot water cylinder; and ii. The second is a net lease model where the landlord pays for all the costs associated with repairing and maintaining the premise and the body corporate costs, such as the utility and service charges and these body corporate costs are deducted from the market rent payable to the landlord; e. Clause 2.1(a) of the Third Schedule is incorporated into the commercial lease agreement for the purpose of clarifying the tenant’s assignment rights and recognises the tenant “operates a property management business and will use the premises for the purposes of such business” and therefore if the ownership of the tenant company changes, it has the “right under this clause to assign the lease and/or transfer its shares to a person or associate or associates of the a person who purchases the business without the need for the landlord’s consent”. This contractual provision recognises the tenant operates a commercial business and the lease has been entered into for the purpose of operating its property management business and therefore its rights under the lease can be assigned to any new owner and/or shareholder of the tenant’s business.
Tenant is unsure why the landlord has brought its claims to the Tenancy Tribunal because; a. The terms of the lease it signed are clear that the purpose for the agreement is to allow a business entity to rent out the apartment as accommodation for short and long terms stays and not for long term residential tenancy purposes; b. No water rates are payable by it to the landlord, pursuant to clause 17 in the First Schedule of the Agreement; c. The invoices it has furnished on the landlord are for capital replacements and not for repairs and maintenance; d. There are no rent arrears outstanding to 30 May 2025; and e. The commercial lease agreement provides for the tenant’s right of renewal on 1 August 2025 and therefore the agreement cannot be terminated if the tenant elects to renew the lease as at no time has it received any proper notice or intention from the landlord about any non-renewal. The law
Section 2 of the RTA defines residential premises to mean: “...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”.
Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.”
Section 5 of the RTA provides for specific exemptions to the jurisdiction of the Tenancy Tribunal.
Section 5(1)(a) of the RTA is one such exemption. It states that the RTA does not apply to “a commercial premise”. Section 2 of the RTA defines a commercial premise as “premises that are not residential premises”.
The evidence provided by the parties proves that the premise has been leased by the tenant to enable it to operate its commercial property management business, which rents out apartments in the [hotel name suppressed] complex to persons wanting short and long term stays in a service apartment on a commercial and usually business to business basis. It is not in the residential tenancy business and does not manage residential tenancies.
The fact the tenant absorbs the repair and maintenance costs and the losses for periods when the apartment is not occupied (including during the lengthy COVID-19 period where short-term stay businesses suffered significant losses), does not require occupants staying in the apartment to sign a residential tenancy agreement or to pay bond or rent in advance and does not pass on property management fees to the landlord or act in anyway as the landlord agent is indicative that the nature of the agreement is commercial and not residential. Occupiers of the apartment pay the tenant for their short term stays at market rates for their occupation of the serviced apartment. There is no expectation of the occupier or the tenant that each occupier is entering into a residential tenancy for the term of their short-term stay.
In addition, section 5(1)(k) of the RTA provides a further exception that arguably applies to this tenancy. This provision states: “This Act shall not apply where the premises— (i)are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and (ii)are subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation that continues to be provided under the agreement”.
The tenant’s evidence it that while it has the contractual right to offer long term stay accommodation to persons wanting to occupy the 2-bedroom apartment for longer than 28 days, it ordinarily only rents out the apartment for stays of 28 days or less. Therefore, in addition to the s5(1)(a) of the RTA exemption, s5(1)(k) of the RTA provides the tenant with a second exception to the coverage by the RTA that the landlord exerts exists.
It is clear from the evidence the apartment being leased to the tenant is being used for commercial use only and that the s5(1)(a) and (k) exemptions apply to the agreement between the landlord and tenant parties.
The tenant has successfully proven the relationship it has with the landlord is in fact a commercial lease to which the RTA does not apply for all the reasons set out above.
The Tenancy Tribunal has no jurisdiction over commercial disputes.
The landlord’s claim is dismissed for want of jurisdiction.

OTHER CLAIMS

Reimbursement of the filing fee

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
As the landlord has not been wholly or substantially successful in his application, his application for reimbursement of the filing fee of is dismissed. Name suppression
The landlord applies for non-publication of his 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 landlord has not wholly or substantially succeeded in its proceedings. However, I do not consider publication is in the public interest or justified because of the landlord’s conduct. Non-publication of the landlord’s name and identifying details is ordered.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5266480. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Claim types — money lines allowed on this order

Filing Fee

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 landlord’s application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, water rates arrears, compensation and reimbursement of the filing fee.
The tenant has challenged the Tenancy Tribunal’s jurisdiction to hear the landlord’s claims.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). 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.
The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision.

JURISDICTION

Does the Tenancy Tribunal have jurisdiction to hear the landlord’s claims? Background

The tenant confirmed that Darlinghurst Apartments Limited is a legal entity owned by the same owners of the [hotel name suppressed], and that this legal entity exists for the purpose of leasing and managing the privately owned units primarily for short term accommodation to persons seeking serviced and furnished accommodation within the hotel complex. It confirmed that most persons rent the serviced apartments in its portfolio for between 2 days to a month, and that most stays are on average for 2.5 days.
The landlord says that the commercial agreement to lease it signed was prepared by the tenant, was supposed to be a residential tenancy agreement like the one signed in 2015, and that it was always the landlord’s understanding that the tenant was renting the premise for residential tenancy purposes, to provide accommodation to the tenant’s employees that work as property managers for Darlinghurst Apartments Ltd. Further the landlord states that the terms of the commercial agreement to lease, particularly clauses 12 and 17 in the First Schedule and clause 2 in the Third Schedule, prove the tenancy is a residential tenancy for which the Residential Tenancies Act 1986 (“RTA”) applies. Specifically, the landlord claims: a. Clause 12 of the First Schedule makes it clear that the tenant is to use the apartment for “business use for short or long stay accommodation”, and he says that the word “accommodation” means residential tenancy; b. Clause 17 of the First Schedule crosses out all the types of costs the tenant would usually be responsible for except for the “charges for water, gas, electricity, telecommunications, and other utilities or services, including line charges” and “rubbish collection and recycling charges”; and c. Clause 2.1(a) of the Third Schedule states the tenant “operates a property management business and will use the premises for the purposes of such business”.
The tenant confirmed the following: a. The apartment was leased by the tenant for the business purpose of providing temporary short-term accommodation in the [hotel name suppressed] for persons wanting to occupy a 2-bedroom furnished and serviced apartment within the [hotel name suppressed], ordinarily for periods of less than 28 days, but occasionally for periods of up to one month. As such, the commercial lease agreement provides for short- and long-term stays. However, the tenant confirmed that most stays/occupations are for between 2 to 3 days; b. The tenant never intended to use the premise for its property managers to use as residential premises, the commercial lease agreement does not mention it wanting to use the apartment for service tenancies for its employees, and it sometimes does house its employees in the studio apartments but would never house its employees in a 2-bedroom apartment such as apartment 8H. It has no idea what has led the landlord to believe the apartment is being leased for this purpose and denies that assertion; c. It agrees that clause 12 of the First Schedule is clear that the business use the property management company has entered into the commercial lease agreement to lease is to let the apartment out as “short or long stay accommodation”, and that the definition of “accommodation” in this context does not mean residential tenancy but means stay. The Oxford dictionary defines the word “accommodation” as “a room, group of rooms, or building in which someone may live or stay”. In this context people pay the property management company to stay in the apartment, ordinarily for short term stays, and occasionally for slightly longer-term stays, but they are never tenants renting the apartment; d. Clause 17 of the First Schedule crosses out all the types of costs the tenant would usually be responsible for except for the “charges for water, gas, electricity, telecommunications, and other utilities or services, including line charges” and “rubbish collection and recycling charges” because the commercial model under which these type of lease agreements operate in a hotel context can operate in two ways when it comes to costs: i. The first is a gross lease model where the landlord/owner of the apartment pays for all the body corporate related costs and gets full market rent for the apartment, regardless of occupancy rates for the apartment and the tenant absorbs all repair and maintenance costs and only passes on capital investment costs, such as purchasing a new washing machine, gas hob, stove or hot water cylinder; and ii. The second is a net lease model where the landlord pays for all the costs associated with repairing and maintaining the premise and the body corporate costs, such as the utility and service charges and these body corporate costs are deducted from the market rent payable to the landlord; e. Clause 2.1(a) of the Third Schedule is incorporated into the commercial lease agreement for the purpose of clarifying the tenant’s assignment rights and recognises the tenant “operates a property management business and will use the premises for the purposes of such business” and therefore if the ownership of the tenant company changes, it has the “right under this clause to assign the lease and/or transfer its shares to a person or associate or associates of the a person who purchases the business without the need for the landlord’s consent”. This contractual provision recognises the tenant operates a commercial business and the lease has been entered into for the purpose of operating its property management business and therefore its rights under the lease can be assigned to any new owner and/or shareholder of the tenant’s business.
Tenant is unsure why the landlord has brought its claims to the Tenancy Tribunal because; a. The terms of the lease it signed are clear that the purpose for the agreement is to allow a business entity to rent out the apartment as accommodation for short and long terms stays and not for long term residential tenancy purposes; b. No water rates are payable by it to the landlord, pursuant to clause 17 in the First Schedule of the Agreement; c. The invoices it has furnished on the landlord are for capital replacements and not for repairs and maintenance; d. There are no rent arrears outstanding to 30 May 2025; and e. The commercial lease agreement provides for the tenant’s right of renewal on 1 August 2025 and therefore the agreement cannot be terminated if the tenant elects to renew the lease as at no time has it received any proper notice or intention from the landlord about any non-renewal. The law
Section 2 of the RTA defines residential premises to mean: “...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”.
Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.”
Section 5 of the RTA provides for specific exemptions to the jurisdiction of the Tenancy Tribunal.
Section 5(1)(a) of the RTA is one such exemption. It states that the RTA does not apply to “a commercial premise”. Section 2 of the RTA defines a commercial premise as “premises that are not residential premises”.
The evidence provided by the parties proves that the premise has been leased by the tenant to enable it to operate its commercial property management business, which rents out apartments in the [hotel name suppressed] complex to persons wanting short and long term stays in a service apartment on a commercial and usually business to business basis. It is not in the residential tenancy business and does not manage residential tenancies.
The fact the tenant absorbs the repair and maintenance costs and the losses for periods when the apartment is not occupied (including during the lengthy COVID-19 period where short-term stay businesses suffered significant losses), does not require occupants staying in the apartment to sign a residential tenancy agreement or to pay bond or rent in advance and does not pass on property management fees to the landlord or act in anyway as the landlord agent is indicative that the nature of the agreement is commercial and not residential. Occupiers of the apartment pay the tenant for their short term stays at market rates for their occupation of the serviced apartment. There is no expectation of the occupier or the tenant that each occupier is entering into a residential tenancy for the term of their short-term stay.
In addition, section 5(1)(k) of the RTA provides a further exception that arguably applies to this tenancy. This provision states: “This Act shall not apply where the premises— (i)are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and (ii)are subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation that continues to be provided under the agreement”.
The tenant’s evidence it that while it has the contractual right to offer long term stay accommodation to persons wanting to occupy the 2-bedroom apartment for longer than 28 days, it ordinarily only rents out the apartment for stays of 28 days or less. Therefore, in addition to the s5(1)(a) of the RTA exemption, s5(1)(k) of the RTA provides the tenant with a second exception to the coverage by the RTA that the landlord exerts exists.
It is clear from the evidence the apartment being leased to the tenant is being used for commercial use only and that the s5(1)(a) and (k) exemptions apply to the agreement between the landlord and tenant parties.
The tenant has successfully proven the relationship it has with the landlord is in fact a commercial lease to which the RTA does not apply for all the reasons set out above.
The Tenancy Tribunal has no jurisdiction over commercial disputes.
The landlord’s claim is dismissed for want of jurisdiction.

OTHER CLAIMS

Reimbursement of the filing fee

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
As the landlord has not been wholly or substantially successful in his application, his application for reimbursement of the filing fee of is dismissed. Name suppression
The landlord applies for non-publication of his 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 landlord has not wholly or substantially succeeded in its proceedings. However, I do not consider publication is in the public interest or justified because of the landlord’s conduct. Non-publication of the landlord’s name and identifying details is ordered.

Tenancy Tribunal case 5266480 — Rent arrears

At a glance

Tenancy Tribunal case 5266480 — Rent arrears

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

JURISDICTION

OTHER CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

JURISDICTION

OTHER CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions