What was Tenancy Tribunal case 5269980 about?

The tribunal order states: The tenant’s claim is upheld and the landlord’s claim is dismissed.

How much money was awarded in case 5269980?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5269980?

The dispute type was not classified.

Where can I read the official tribunal order for case 5269980?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12469797-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5269980 about?

The tribunal order states: The tenant’s claim is upheld and the landlord’s claim is dismissed.

How much money was awarded in case 5269980?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5269980?

The dispute type was not classified.

Where can I read the official tribunal order for case 5269980?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12469797-Tribunal_Order_Redacted.pdf.

[Tenancy address supressed] Tenancy Tribunal Case 5269980 — Tenancy dispute

Order

The tenant’s claim is upheld and the landlord’s claim is dismissed.
Name suppression is ordered in favour of the tenant and his family members who gave evidence at the hearing.
The Bond Centre is to pay the bond [Bond number suppressed] of $3800 to the tenant.

Reasons

The parties had a fixed term tenancy which was to expire on 21 September 2025. The tenant claims that the landlord agree to release him from the fixed term tenancy early, and that in reliance on that agreement, he entered into a further tenancy agreement and moved out on 22 May 2025. The landlord denies having reached any such agreement to bring forward the end date of the tenancy and seeks an order for unpaid rent to be paid from the date the tenant moved out until the end of the fixed term tenancy.
The issue for my determination is whether or not the landlord agreed to release the tenants early or otherwise made any form of representation by words or conduct that the tenant could vacate the premises early. Background
During the hearing, I heard evidence for the landlord on behalf of Mr Cheung, an employee of Barfoot & Thompson Limited, and Mr Damien Dougherty and [Part-Owner 1], who I was informed were part owners the premises. The other owners were described to me as another couple. Companies Office records show that Big Bear Little Fox Limited is owned by Mr Dougherty and a [Part-Owners 2] as to 50% each. Mr Dougherty is described as a director and therefore had the authority of the company to give evidence on its behalf at the hearing.
[The tenant/s] gave evidence, along with his daughter [redacted]. 1
The tenant entered into his initial tenancy agreement with the landlord on 15 August 2023. It was a fixed term tenancy for one year. The landlord is described as Barfoot & Thompson Limited, as agents for and behalf of Big Bear Little Fox Limited.
A renewed fixed term tenancy agreement was entered into approximately one year later on 29 July 2024. It recorded that the tenancy end date was now 21 September 2025. Although the renewal was only for one year, the tenant, who needed to house not only his family but also has an elderly mother living with them, remained interested in exploring the option of a longer period, of say a few years. He raised this with Barfoot’s when the renewal was signed but was told to raise it again the following year.
The tenant dealt mainly with representatives from Barfoots, but he had also had on at least one occasion dealt directly with Mr Dougherty an early 2025 and so had his contact details.
[The tenant/s] decided it would be more effective to talk direct to the owner, [Part-Owner 1], about the possibility of an extension beyond September 2024. There was therefore a text exchange between the parties, which eventually lead to [The tenant/s] directly calling [Part Owner 1] from his car on 21 March.
[The tenant/s]’s daughter, was also present in the car when this conversation took place.
According to [The tenant/s] and his daughter, [The tenant/s] asked whether any decision had been made about extending the term of the tenancy agreement; he said that he wanted stability for his elderly mother. He claims that Mr Dougherty said that things have been tough and that he and 1 In reply, [redacted]had sought to make submissions on behalf of the father but this was objected to by the landlord and so I declined to allow her to do so. the other owner were looking at selling in September, when the fixed term tenancy came to an end.
[The tenant/s] and his daughter said that Mr Dougherty said [The tenant/s] could move out at any time he wanted but that [The tenant/s] replied that he would still give three weeks notice.
Based on what he thought was agreement to allow him to be released from the tenancy agreement, [The tenant/s] started looking for alternative premises. He continued to pursue the option of a potential extension to the tenancy though and to that end sent a further message to Mr Dougherty on 11 April, raising again the possibility of an extension until September 2026. Mr Dougherty replied to that text saying: “house has to be sold as we have no option as I said it’s been a very bad 18 months so we don’t have any other options unfortunately”.
In late April 2025, [The tenant/s] and his family found a suitable property where the landlord was prepared to offer a long-term tenancy for two years, with a two-year right of renewal.
[The tenant/s] next sent a text to Mr Dougherty on 1 May 2025, advising him that: “we’re [sic] have a location. I know you said we didn’t have to give you notice, but we would like to have an exit date of the 22 nd May.... All I ask is “do you have paid for the garage wall” I’d like to tidy it up after we take the TV bracket down. I guess you will touch up the entire house or shall I leave it. Let me know either way. If not can you drop some paint on and we can touch it up ourselves. We will contact Barfoot tomorrow morning with our request.”
Mr Dougherty did not reply to that text message.
On 2 May 2025, [The tenant/s] signed a tenancy agreement for his new tenancy.
On 5 May 2025, [The tenant/s] sent a notice of tenancy end email to [Property Management Company Employee], advising that he had found a new rental property and that the tenancy agreement would end on 22 May 2025.
[Property Management Company Employee] replied to that email the next day advising: “as your current tenancy is a fixed term agreement running until 21 September 2025, it can only be entered early by mutual agreement with the landlord. I need to discuss your request with the landlord.... Please refrain from speaking to the owners directly.”
On 11 May, [The tenant/s] sent a text to Mr Dougherty stating “in our last discussion you said we could move at any time prior to September because you are selling the house. I said, thanks but we would still give you notice regardless. I text you on 1 May giving three weeks out of courtesy. Now we are having Barfoot getting involved. Please advise”.
There was no reply to that message.
On 22 May 2025, [The tenant/s] sent a text to Mr Dougherty, advising amongst other things: “based on our discussion in March I made decisions based on my conversation with you and you encouraging me to find a property due to other family that owned the property wanting to sell”.
According to [The tenant/s], the premises were put on the market not long after he his family vacated them.
For the landlord, [Property Management Company Employee] said the landlord’s position is that any variation to the tenancy agreement must be in writing and that there was no written variation of the agreement, so therefore there was no agreement to vary the tenancy agreement and bring forward the end date. He also explained that [The tenant/s] was expressly told not to contact the owner direct and therefore that Mr Dougherty could not bind the landlord to any variation.
Mr Dougherty said that on 13 March, when [The tenant/s] was attempting to organise a time to discuss with Mr Dougherty he had told him “maybe you should go through the agent I don’t plan my weekends in advance”.
Nevertheless, Mr Dougherty accepted that he did speak with [The tenant/s] on 21 March. He strongly denied telling [The tenant/s] in that conversation that he could move at any time he wanted. He said that all he said was that if he found another premises then the landlord would allow the tenancy to be reduced by few weeks at the other end. He said the property was owned jointly with another couple and they did not know what they would be doing in six months; they had not yet made up their mind about selling.
I asked him why he did not reply to the various text messages that [The tenant/s] later sent and Mr Dougherty said that he was away and did not see the messages.
Mr Dougherty confirmed that the premises were put on the market after [The tenant/s] moved out but that they did not sell. The premises were not re-tenanted until 3 August 2025. The new tenant is paying rent at $950, so $30 per week less than the $980 that [The tenant/s] was paying.
The landlord is claiming $980 per week for the 10 weeks the premises were untenanted plus $30 per week from 3 August 2025 to 21 September 2025 which would have been the end date of the tenancy with [The tenant/s]. Burden of proof
I begin by noting that in regard to the burden of proof, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. They must establish that what they are claiming is more probable than not.
Independent witnesses, corroborating documents, emails and text messages can be an important part of discharging this burden.
Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke, in practical terms this means that: 2 ...[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.

Was the tenancy agreement varied?

I consider that the agreement was varied to bring forward the termination date in the manner alleged by the tenant.
I accept the evidence of [The tenant/s] and his daughter, who I found to be clear and reliable witnesses with a detailed recollection of the telephone conversation. I consider that the subsequent communications that [The tenant/s] sent to then be corroborating evidence that this variation was indeed agreed on the 21 March 2025.
I note that the agreement was placed on the market immediately upon the tenants vacated the premises. This also appears to corroborate the tenant’s version of events which was that Mr Dougherty and his partner wanted to get the property sold and were therefore happy for the tenant to vacate early.
[The tenant/s] and Mr Dougherty had previously liaised with each other in relation to the tenancy and it was not unreasonable for [The tenant/s] to conclude that Mr Dougherty had authority to reach that agreement with him. After all, Mr Dougherty was a joint owner of the property.
The variation did not need to be in writing in order to be enforceable. Tenancy agreements are usually in writing but they do not need to be in writing in order to be enforced by either party. 2 Kaipo v Clarke DC Waitakere TT 233/02, 12 April 2002, at [7].
Even if I am wrong in concluding that the agreement was varied, I consider that the principle of estoppel applies here.
The underlying principle of equitable estoppel is to prevent the exercise of strict legal rights in circumstances where the exercise of them would be unconscionable. The four elements a party must meet to establish estoppel by representations, statements, and conduct in this case are: 3 •A belief or expectation by the tenants has been created or encouraged by words or conduct by the landlord. •To the extent an express representation is relied upon, it is clearly and unequivocally expressed. •The tenant reasonably relied to its detriment on the representation; and •It would be unconscionable to depart from the belief or expectation.
The Tribunal may make any orders that the High Court or District Court may make under any enactment or rule of law relating to contracts (see s 78(1)(h) Residential Tenancies Act 1986). This includes equitable remedies such as estoppel. 4
I consider that there was a belief or expectation by [The tenant/s], encouraged by the words and conduct of the landlord as identified above, that he would be able to give three weeks notice to bring the tenancy to an end. [The tenant/s] has relied on that promise to his detriment because he has then entered into a subsequent tenancy agreement. I consider it was reasonable for him to rely on the statements made in the conversation of 21 March and the subsequent conduct and not refuting [The tenant/s]’s 3 Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407 at [44]. 4 The principle of estoppel is consistent with the way the Tribunal is required to exercise its jurisdiction, namely being that The Tribunal is to ensure the fair and expeditious resolution of disputes between landlords and tenants and to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but it is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities. Stella & Carey v Bay of Islands Realty Limited & Kirkman [2016] NZTT Kaikohe 4051975 and 4053657 and s 85 of the RTA. texts and that it would be unconscionable to depart from the belief or expectation.
It follows that the tenant’s claim is upheld.
The tenant has been successful and I therefore award reimbursement of the sum of $27, being the filing fee. I additionally consider it appropriate to award name suppression in the tenant’s favour.
It therefore also follows that the landlord’s claim is dismissed. The tenant fully paid up until 23 May 2025. No further rent is owing.

Reasons

The parties had a fixed term tenancy which was to expire on 21 September 2025. The tenant claims that the landlord agree to release him from the fixed term tenancy early, and that in reliance on that agreement, he entered into a further tenancy agreement and moved out on 22 May 2025. The landlord denies having reached any such agreement to bring forward the end date of the tenancy and seeks an order for unpaid rent to be paid from the date the tenant moved out until the end of the fixed term tenancy.

The issue for my determination is whether or not the landlord agreed to release the tenants early or otherwise made any form of representation by words or conduct that the tenant could vacate the premises early. Background

During the hearing, I heard evidence for the landlord on behalf of Mr Cheung, an employee of Barfoot & Thompson Limited, and Mr Damien Dougherty and [Part-Owner 1], who I was informed were part owners the premises. The other owners were described to me as another couple. Companies Office records show that Big Bear Little Fox Limited is owned by Mr Dougherty and a [Part-Owners 2] as to 50% each. Mr Dougherty is described as a director and therefore had the authority of the company to give evidence on its behalf at the hearing.

[The tenant/s] gave evidence, along with his daughter [redacted]. 1

The tenant entered into his initial tenancy agreement with the landlord on 15 August 2023. It was a fixed term tenancy for one year. The landlord is described as Barfoot & Thompson Limited, as agents for and behalf of Big Bear Little Fox Limited.

A renewed fixed term tenancy agreement was entered into approximately one year later on 29 July 2024. It recorded that the tenancy end date was now 21 September 2025. Although the renewal was only for one year, the tenant, who needed to house not only his family but also has an elderly mother living with them, remained interested in exploring the option of a longer period, of say a few years. He raised this with Barfoot’s when the renewal was signed but was told to raise it again the following year.

The tenant dealt mainly with representatives from Barfoots, but he had also had on at least one occasion dealt directly with Mr Dougherty an early 2025 and so had his contact details.

[The tenant/s] decided it would be more effective to talk direct to the owner, [Part-Owner 1], about the possibility of an extension beyond September 2024. There was therefore a text exchange between the parties, which eventually lead to [The tenant/s] directly calling [Part Owner 1] from his car on 21 March.

[The tenant/s]’s daughter, was also present in the car when this conversation took place.

According to [The tenant/s] and his daughter, [The tenant/s] asked whether any decision had been made about extending the term of the tenancy agreement; he said that he wanted stability for his elderly mother. He claims that Mr Dougherty said that things have been tough and that he and 1 In reply, [redacted]had sought to make submissions on behalf of the father but this was objected to by the landlord and so I declined to allow her to do so. the other owner were looking at selling in September, when the fixed term tenancy came to an end.

[The tenant/s] and his daughter said that Mr Dougherty said [The tenant/s] could move out at any time he wanted but that [The tenant/s] replied that he would still give three weeks notice.

Based on what he thought was agreement to allow him to be released from the tenancy agreement, [The tenant/s] started looking for alternative premises. He continued to pursue the option of a potential extension to the tenancy though and to that end sent a further message to Mr Dougherty on 11 April, raising again the possibility of an extension until September 2026. Mr Dougherty replied to that text saying: “house has to be sold as we have no option as I said it’s been a very bad 18 months so we don’t have any other options unfortunately”.

In late April 2025, [The tenant/s] and his family found a suitable property where the landlord was prepared to offer a long-term tenancy for two years, with a two-year right of renewal.

[The tenant/s] next sent a text to Mr Dougherty on 1 May 2025, advising him that: “we’re [sic] have a location. I know you said we didn’t have to give you notice, but we would like to have an exit date of the 22 nd May.... All I ask is “do you have paid for the garage wall” I’d like to tidy it up after we take the TV bracket down. I guess you will touch up the entire house or shall I leave it. Let me know either way. If not can you drop some paint on and we can touch it up ourselves. We will contact Barfoot tomorrow morning with our request.”

Mr Dougherty did not reply to that text message.

On 2 May 2025, [The tenant/s] signed a tenancy agreement for his new tenancy.

On 5 May 2025, [The tenant/s] sent a notice of tenancy end email to [Property Management Company Employee], advising that he had found a new rental property and that the tenancy agreement would end on 22 May 2025.

[Property Management Company Employee] replied to that email the next day advising: “as your current tenancy is a fixed term agreement running until 21 September 2025, it can only be entered early by mutual agreement with the landlord. I need to discuss your request with the landlord.... Please refrain from speaking to the owners directly.”

On 11 May, [The tenant/s] sent a text to Mr Dougherty stating “in our last discussion you said we could move at any time prior to September because you are selling the house. I said, thanks but we would still give you notice regardless. I text you on 1 May giving three weeks out of courtesy. Now we are having Barfoot getting involved. Please advise”.

There was no reply to that message.

On 22 May 2025, [The tenant/s] sent a text to Mr Dougherty, advising amongst other things: “based on our discussion in March I made decisions based on my conversation with you and you encouraging me to find a property due to other family that owned the property wanting to sell”.

According to [The tenant/s], the premises were put on the market not long after he his family vacated them.

For the landlord, [Property Management Company Employee] said the landlord’s position is that any variation to the tenancy agreement must be in writing and that there was no written variation of the agreement, so therefore there was no agreement to vary the tenancy agreement and bring forward the end date. He also explained that [The tenant/s] was expressly told not to contact the owner direct and therefore that Mr Dougherty could not bind the landlord to any variation.

Mr Dougherty said that on 13 March, when [The tenant/s] was attempting to organise a time to discuss with Mr Dougherty he had told him “maybe you should go through the agent I don’t plan my weekends in advance”.

Nevertheless, Mr Dougherty accepted that he did speak with [The tenant/s] on 21 March. He strongly denied telling [The tenant/s] in that conversation that he could move at any time he wanted. He said that all he said was that if he found another premises then the landlord would allow the tenancy to be reduced by few weeks at the other end. He said the property was owned jointly with another couple and they did not know what they would be doing in six months; they had not yet made up their mind about selling.

I asked him why he did not reply to the various text messages that [The tenant/s] later sent and Mr Dougherty said that he was away and did not see the messages.

Mr Dougherty confirmed that the premises were put on the market after [The tenant/s] moved out but that they did not sell. The premises were not re-tenanted until 3 August 2025. The new tenant is paying rent at $950, so $30 per week less than the $980 that [The tenant/s] was paying.

The landlord is claiming $980 per week for the 10 weeks the premises were untenanted plus $30 per week from 3 August 2025 to 21 September 2025 which would have been the end date of the tenancy with [The tenant/s]. Burden of proof

I begin by noting that in regard to the burden of proof, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. They must establish that what they are claiming is more probable than not.

Independent witnesses, corroborating documents, emails and text messages can be an important part of discharging this burden.

Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

As noted in Kaipo v Clarke, in practical terms this means that: 2 ...[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.

Was the tenancy agreement varied?

I consider that the agreement was varied to bring forward the termination date in the manner alleged by the tenant.

I accept the evidence of [The tenant/s] and his daughter, who I found to be clear and reliable witnesses with a detailed recollection of the telephone conversation. I consider that the subsequent communications that [The tenant/s] sent to then be corroborating evidence that this variation was indeed agreed on the 21 March 2025.

I note that the agreement was placed on the market immediately upon the tenants vacated the premises. This also appears to corroborate the tenant’s version of events which was that Mr Dougherty and his partner wanted to get the property sold and were therefore happy for the tenant to vacate early.

[The tenant/s] and Mr Dougherty had previously liaised with each other in relation to the tenancy and it was not unreasonable for [The tenant/s] to conclude that Mr Dougherty had authority to reach that agreement with him. After all, Mr Dougherty was a joint owner of the property.

The variation did not need to be in writing in order to be enforceable. Tenancy agreements are usually in writing but they do not need to be in writing in order to be enforced by either party. 2 Kaipo v Clarke DC Waitakere TT 233/02, 12 April 2002, at [7].

Even if I am wrong in concluding that the agreement was varied, I consider that the principle of estoppel applies here.

The underlying principle of equitable estoppel is to prevent the exercise of strict legal rights in circumstances where the exercise of them would be unconscionable. The four elements a party must meet to establish estoppel by representations, statements, and conduct in this case are: 3 •A belief or expectation by the tenants has been created or encouraged by words or conduct by the landlord. •To the extent an express representation is relied upon, it is clearly and unequivocally expressed. •The tenant reasonably relied to its detriment on the representation; and •It would be unconscionable to depart from the belief or expectation.

The Tribunal may make any orders that the High Court or District Court may make under any enactment or rule of law relating to contracts (see s 78(1)(h) Residential Tenancies Act 1986). This includes equitable remedies such as estoppel. 4

I consider that there was a belief or expectation by [The tenant/s], encouraged by the words and conduct of the landlord as identified above, that he would be able to give three weeks notice to bring the tenancy to an end. [The tenant/s] has relied on that promise to his detriment because he has then entered into a subsequent tenancy agreement. I consider it was reasonable for him to rely on the statements made in the conversation of 21 March and the subsequent conduct and not refuting [The tenant/s]’s 3 Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407 at [44]. 4 The principle of estoppel is consistent with the way the Tribunal is required to exercise its jurisdiction, namely being that The Tribunal is to ensure the fair and expeditious resolution of disputes between landlords and tenants and to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but it is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities. Stella & Carey v Bay of Islands Realty Limited & Kirkman [2016] NZTT Kaikohe 4051975 and 4053657 and s 85 of the RTA. texts and that it would be unconscionable to depart from the belief or expectation.

It follows that the tenant’s claim is upheld.

The tenant has been successful and I therefore award reimbursement of the sum of $27, being the filing fee. I additionally consider it appropriate to award name suppression in the tenant’s favour.

It therefore also follows that the landlord’s claim is dismissed. The tenant fully paid up until 23 May 2025. No further rent is owing.

Tenancy Tribunal case 5269980 — Tenancy dispute at [Tenancy address supressed]

At a glance

Claims & awards

Tenancy Tribunal case 5269980 — Tenancy dispute at [Tenancy address supressed]

At a glance

Claims & awards

Order

Reasons

Was the tenancy agreement varied?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Was the tenancy agreement varied?

Topics & place

Residential Tenancies Act sections

Frequently asked questions