What was Tenancy Tribunal case 5300428 about?

The tribunal order states: The tenancy of [The tenant/s] at 668 Greenvale Road, Crossans Corner, RD

How much money was awarded in case 5300428?

60: $5,057.14 awarded to landlord; Filing Fee: $28.00 awarded to landlord

What type of tenancy dispute was case 5300428?

The dispute type was not classified.

Where can I read the official tribunal order for case 5300428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12311127-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5300428 about?

The tribunal order states: The tenancy of [The tenant/s] at 668 Greenvale Road, Crossans Corner, RD

How much money was awarded in case 5300428?

60: $5,057.14 awarded to landlord; Filing Fee: $28.00 awarded to landlord

What type of tenancy dispute was case 5300428?

The dispute type was not classified.

Where can I read the official tribunal order for case 5300428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12311127-Tenancy_Tribunal_Order.pdf.

668 Greenvale Road, Crossans Corner, RD 5, Gore 9775 Tenancy Tribunal Case 5300428 — Tenancy dispute

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Order

Claims and awards in Tenancy Tribunal application 5300428 — net $5,085.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
60	$5,057.14	60
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$5,085.14
Total payable by Tenant to Landlord	$5,085.14

The tenancy of [The tenant/s] at 668 Greenvale Road, Crossans Corner, RD 5, Gore 9775 is terminated, and possession is granted to BW & LM Falconer Limited, at 2 pm today, Monday 25 August 2025.

[The tenant/s] must pay BW & LM Falconer Limited $5,085.14 immediately, calculated as shown in the table below:

Reasons

The landlord attended the hearing by video conference represented by Mr Blair Falconer.

The tenant did not join the video link for the hearing. The Tribunal also called the tenant for the hearing on the cell phone number provided for her in the application but the calls diverted to voicemail. I am satisfied that the tenant received notice of the hearing and did not attend.

The landlord has applied for termination of the tenancy and rent arrears. Background facts

This was a service tenancy and agreements were signed by the parties granting a tenancy over the premises which existed solely for the purposes of the tenant’s employment as a farmhand. Other relevant terms of the agreements were: a. The tenancy commenced on 3 June 2024 and was to end on the date the tenant’s employment with the landlord ended; b. The employment agreement required the tenant to give four weeks’ notice to end her employment contract; c. The employer/landlord was entitled to give 14 days’ notice to terminate the tenancy provided that the tenancy cannot end before the term of employment ends; d. The tenant was liable to pay rent if the property was not vacated by the date given in any termination notice with any rent owed calculated as the agreed market value of accommodation set out in the service tenancy agreement which was $300 per week.

On or about 3 October 2024, the tenant gave notice to end her employment. By letter dated 22 October 2024, the landlord acknowledged her resignation and confirmed that her last day of work would be 30 October 2024. The landlord also gave notice that as the tenancy coincided with the term of employment she should vacate the house no later than 3 November 2024.

On 23 October, the landlord met with the tenant where it was agreed that she would not work through her notice period. The landlord sent her an email on 4 November confirming this discussion. The letter also recorded the landlord’s previous advice that she vacate the house by 3 November 2024. However, as the house was not then needed for staff, Mr Falconer advised the tenant that she was welcome to continue staying there but rent would be payable. He advised that rent would be $395/week consisting of $200 rent and $195 for the power bill. He attached power bills paid on the house since the tenancy started averaging $850/month. He advised the bank account into which rent should be paid. He also advised that when the power bills came in, he would be happy to reimburse the difference, if any. The landlord also advised the tenant that once the house was required for staff, she would need to vacate immediately.

The tenant has not made any payments towards rent and power since 1 November 2024. The landlord did not provide any evidence of demands for rent payments until a letter dated 8 May 2025 in which he formally requested that she vacate the premises by 30 May 2025 as they are for a new staff member. The notice also reminded her that rent had not been paid since 1 November 2024 and that the outstanding amount at that date was $10,270.

There appears to be some text messages between the parties in January, April and May 2025 in which the tenant indicated she was moving out but this did not happen.

The landlord has not taken any steps to apply for termination of the tenancy until this application filed on 4 July 2025. When asked why he did not act sooner, Mr Falconer explained that he has not dealt with this situation before; he was sympathetic to the tenants personal circumstances and struggles he was aware of, and so he let it slide out of generosity.

Should the tenancy be terminated?

I am satisfied on the evidence that the service tenancy ended on 3 November 2024 but a continuing tenancy was agreed provided the tenant paid rent.

The landlord says the continuing rent was $395 being $200 for rent and $195 for power. However, the terms of the service tenancy provide that rent payable once the service tenancy ends is the agreed value of the accommodation set out in the service tenancy agreement which was $300/week. Therefore, I consider the landlord cannot charge more then $300/week for rent and power.

The landlord provided a rent record showing the arrears accruing from 3 November 2024. However, as the tenant was advised that the final day of the tenancy under the service agreement was 3 November 2024, I have calculated the arrears from 4 November 2024. The amount owed for rent calculated at $300/week from 4 November 2024 to the the hearing date is $12,642.86. However, as discussed at the hearing, I consider that the rent arrears should be reduced because the landlord has not taken steps to end the tenancy sooner and mitigate the amount owed for arrears as explained further below.

However, there is no question, that even if rent is reduced, it is more than 21 days in arrears on the date the application was filed. The tenancy is terminated. See section 55(1)(a) Residential Tenancies Act 1986 (RTA).

How much should be awarded for rent arrears?

Section 49 RTA provides: “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”

The District Court has held that there is a duty to mitigate any loss by ensuring that rent does not get too far in arrears. The District Court in Housing New Zealand v Witika held that what is required by the landlord to mitigate loss is a factual test that requires the court to consider whether the landlord took all reasonable steps to mitigate its loss; and more particularly, whether it acted reasonably having regard to all the circumstances of the case. 1

In Olliver v Vishnu Trust 2 the test in Witika was applied. The Judge found on the balance of probabilities that the landlord did not take all reasonable steps having regard to al the circumstances to mitigate its loss because it did not take any action at the time the breach occurred; it did not make any attempt to contact the tenant regarding the rent owed; and it did not apply to terminate the tenancy.

The test in Witika was also applied by the District Court in Huang v Ashworth. 3 Huang was an appeal from the Tribunal’s decision to allow the landlord to claim three months’ rent arrears only with the landlord arguing he should be awarded the full arrears that accrued over 28 weeks. Judge Sainsbury noted that he did not consider that a landlord who has made a considered and sympathetic decision to allow a tenant to have more time to pay should be prejudiced if payment is not made. He held that the landlord’s attempts to resolve and allow time for payment without resorting to eviction were reasonable especially for a 4-year tenancy in that case. He qualified this by saying it was reasonable only up to a point stating at paragraph [18]: “Where a tenant repeatedly breaches promises to make up arrears and instead additional arrears are incurred there comes a point when it is being naïve or careless to your own interests to persist giving the tenant more time to pay. For that reason, I do not consider that the full arrears can be claimed. In other words I am satisfied on balance of probabilities that here was some failure to mitigate loss but less than that assessed by the Tribunal.”

The Judge went on to conclude that the Tribunal ruling allowing the landlord to claim three months’ rent arrears was unfair and he was entitled to a greater portion. The Court discounted the arrears which amounted to almost 28 weeks in arrears by one third for failure to mitigate loss.

Adopting the same principles in this case, I find that the landlord here has been sympathetic to the tenant’s personal circumstances and allowed time for payment of arrears. That approach might be reasonable to a point. However, to let the arrears accrue for so long over the period of almost 9 months before applying to terminate the tenancy, when no payments were made at all is not 1 Housing New Zealand v Witika [1995] DCR 307 2 Olliver v Vishnu Trust DC Wellington, CIV-2004-085-1462, 19 November 2004 3 Huang v Ashworth [2024] NZDC 15726 reasonable. For that reason, I consider that the full arrears cannot be claimed because there has been a failure by the landlord to mitigate loss.

Having regard to all the circumstances, I consider that the arrears should be reduced. In this case the arrears have been allowed to continue for almost 35 weeks until this application was lodged on 4 July 2025 and in circumstances where the tenant made no effort to make any payments. In those circumstances, I consider a greater reduction than was allowed in Huang is justified. I reduce the rent for failure to mitigate by 60% and award arrears of $5,057.14.

As the landlord has substantially succeeded with the application, they are entitled to reimbursement of the filing fee.

Order

Claims and awards in Tenancy Tribunal application 5300428 — net $5,085.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
60	$5,057.14	60
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$5,085.14
Total payable by Tenant to Landlord	$5,085.14

The tenancy of [The tenant/s] at 668 Greenvale Road, Crossans Corner, RD 5, Gore 9775 is terminated, and possession is granted to BW & LM Falconer Limited, at 2 pm today, Monday 25 August 2025.

[The tenant/s] must pay BW & LM Falconer Limited $5,085.14 immediately, calculated as shown in the table below:

Reasons

The landlord attended the hearing by video conference represented by Mr Blair Falconer.

The landlord has applied for termination of the tenancy and rent arrears. Background facts

There appears to be some text messages between the parties in January, April and May 2025 in which the tenant indicated she was moving out but this did not happen.

Should the tenancy be terminated?

I am satisfied on the evidence that the service tenancy ended on 3 November 2024 but a continuing tenancy was agreed provided the tenant paid rent.

How much should be awarded for rent arrears?

As the landlord has substantially succeeded with the application, they are entitled to reimbursement of the filing fee.

Tenancy Tribunal case 5300428 — Tenancy dispute at 668 Greenvale Road, Crossans Corner, RD 5, Gore 9775

At a glance

Tenancy Tribunal case 5300428 — Tenancy dispute at 668 Greenvale Road, Crossans Corner, RD 5, Gore 9775

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

How much should be awarded for rent arrears?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

How much should be awarded for rent arrears?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions