What was Tenancy Tribunal case 5313959 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5313959?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5313959?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5313959?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12437768-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5313959 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5313959?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5313959?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5313959?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12437768-Tenancy_Tribunal_Order.pdf.

Unit/Flat Flat 4, 32 Bidwill Street, Seaview, Timaru 7910 Tenancy Tribunal Case 5313959 — 14-day notice

Order

The application is dismissed.

Reasons

Both parties attended the hearing
The landlord was represented by a property manager. For ease of reference, I will refer to the property manager as the landlord.
The tenant was supported by a family member.
The tenancy commenced on 18 March 2025. The tenancy is for a fixed-term with a contractual end date of 17 March 2026.
The landlord has applied for termination for a breach of the tenancy agreement that is incapable of remedy.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA). With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations: a. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. b. 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. c. 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.” d. The more serious the claims made the greater the evidential burden on the applicant will be. 1 TERMINATION UNDER SECTION 56
The Tribunal can order termination of a tenancy, but the circumstances were a termination can be ordered are limited in the RTA. Given the allegations from the landlord here, the Tribunal could order a termination of the tenancy under section 56, which is a general termination provision. Section 56 is as follows: 56 Termination for non-payment of rent and other breaches (1)On an application made to it under this section by the landlord or the tenant, the Tribunal may make an order terminating the tenancy if the Tribunal is satisfied that— (a)the other party has committed a breach of any of the provisions of the tenancy agreement (including provisions relating to the payment of rent) or of this Act; and (b)in the case of a breach capable of remedy,— (i)the applicant gave to the other party a notice specifying the nature of the breach complained of and requiring the 1 Z v Dental Complaints Assessment Committee [2008] NZSC 55. other party to remedy the breach within a reasonable period, being not less than 14 days commencing with the day on which the notice was given; and (ii)and the other party failed to remedy the default within the required period; and (c)that the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.
What this means is the Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. 2
Where the breach is capable of remedy the landlord is required to serve a 14- day notice to remedy the breach on the tenant and prove that the tenant has not remedied the breach.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants: a. Positive covenants are things the tenant is required to do, such as paying rent. b. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours. c. Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent. d. The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. e. In Vincent Dean Huff v City Central Property Management 3 , the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: 2 See section 56(1) of the RTA. 3 Vincent Dean Huff v City Central Property Management [2020] NZDC 19229 at [46]-[47] ...Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). the breach irremediably arises when the specified failure occurs. It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days. f. It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. The same may apply where there has been a persistent series of breaches, for example, where a tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours.
In Vincent Dean Huff v City Central Property Management 4 the Court also needed to consider the extent of section 56(1)(c), which requires consideration of whether the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy. The Court set out a range of factors that would be relevant, being: a) The history of the tenancy. b) Whether there had been a persistent failure after repeated warnings. c) Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future. d) Whether the breach was inadvertent or deliberately committed. e) The conduct of the landlord. f) The gravity of the breach. g) Whether termination is a proportionate response to the breach.
The issues I need to consider therefore are: a. Has the tenant breached any obligation to the landlord; 5 and b. If the breach is capable of remedy, the landlord issued a 14-day notice 4 Vincent Dean Huff v City Central Property Management [2020] NZDC 19229 at [61]., 5 See section 56(1)(a) of the RTA. to remedy which the tenant has not complied with; 6 and c. That the breach was of such significance, that it would be inequitable (unfair) not to terminate the tenancy. 7

HAS THE TENANT BREACHED ANY OBLIGATION TO THE LANDLORD?

The landlord says the tenant is in breach of the agreement and RTA by causing excessive noise & disturbance to other residents and having additional residents residing in the property, over the maximum stated on the tenancy agreement. Obligations in RTA
Section 40(2)(c) of the RTA says the tenant shall not: cause or permit any interference with the reasonable, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.
Section 40(3) of the RTA says: Where the tenancy agreement specifies a maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant shall ensure that no more than that number ordinarily reside in the premises at any time during the tenancy. Terms of tenancy agreement
The tenancy agreement records that the maximum number of residents and tenants (combined) to reside at the property must not exceed 4 (Four).
Clause 58 of the tenancy agreement says: Further Tenants - The Tenants agree that only occupants named on the tenancy agreement are to reside at the Property. If any persons want to reside at the Property they must submit applications and go through the full vetting process. It is only with the consent of the Landlord that any new applicant will be added to the tenancy agreement as a Tenant and be allowed to reside at the Property.
Clause 17 of the tenancy agreement says: Excessive Noise - The Tenant agrees to keep the noise to a reasonable level and be considerate of neighbouring properties, their occupants and other Tenants. Alleged breaches: 6 See section 56(1)(b) of the RTA. 7 See section 56(1)(a) of the RTA.
The landlord says there are several ongoing breaches with respect to the obligations noted above. The landlord has provided evidence of the notices sent to the tenant about the alleged breaches.
On 19 May 2025 the landlord sent a letter to the tenant which says: Breach - Noise and General Disturbance... ...We have received complaints from adjoining residents alleging excessive noise & behaviour coming from your property in relation to the vehicle that is frequently at your property (Orange vehicle) This vehicle & its owner is not allowed to be at the property as frequently as it has been as the owner is not a resident of the property and there is no allocated parking space for guests vehicles Your attention is drawn to Section 40 (2) (c)of the Residential Tenancies Act 1986 - Tenant's responsibilities. Which reads: The tenant shall not cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord's other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood
An email also sent that day which says: As discussed with you earlier today, it is alleged that you have had the same person staying very regularly at your property overnight since your tenancy started. I would like to bring to your attention this clause in your Tenancy agreement:
Further Tenants - The Tenants agree that only occupants named on the tenancy agreement are to reside at the Property. If any persons want to reside at the Property they must submit applications and go through the full vetting process. It is only with the consent of the Landlord that any new applicant will be added to the tenancy agreement as a Tenant and be allowed to reside at the Property. By having this person stay as often as they have been, you are in breach of your tenancy agreement and failure to stop this happening could result in your tenancy being terminated. Please ensure that this residing ceases & it is only those named on the tenancy residing at the property. Should you wish to have them as a named tenant, then they must submit an application & I am happy to look at this for you.
At the hearing the landlord said the tenant is causing excessive noise and disturbance to other neighboring tenants and has another tenant living at the property who is not named on the tenancy agreement,
The tenant acknowledged the father of her child stays 1-2 nights a week, but she said he lives elsewhere. She said she relies on him to drive her to do her shopping, and he visits and helps with their child. She said that his car is the one referred to in the breach letter but there are other loud vehicles in the area and it is the vehicle is referred to in the tenancy agreement and she says the vehicle is therefore allowed to be at the premises.
The landlord is relying of hearsay evidence to prove the breaches in respect of noise and disturbance by this tenant and that another adult resides in the premises. The landlord/property manager that attended the hearing had only recently taken over management of the tenancy. The property manager was unable to provide any direct evidence in respect of the alleged breaches by the tenant.
A hearsay statement is an out-of-court statement made by a person who is not a witness, that is, it is evidence that was not directly seen, heard or spoken by the person that is giving the evidence and it is offered in evidence to provide the truth of something. 8
The general rule in a proceeding in New Zealand is that hearsay statements are not admissible, subject to specific exceptions, the most important being that the statement is admissible if the circumstances relating to it, give reasonable assurance as to its reliability. 9
The Tribunal must exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes 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 the Tribunal is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities. 10
The Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually (that is thoroughly) with the matters before it, whether or not the same would be admissible in a court of law. This excludes statements made in mediation. 11
Therefore whilst the Tribunal can accept hearsay evidence it may be given less weight than evidence given by the person who was there, that is because the person who was there can answer questions about what they saw or heard, and the Adjudicator can make an assessment on the witnesses credibility. In 8 Section 4, Evidence Act 2006 9 Section 17-18 Evidence Act 2006. 10 Section 85 of the RTA 11 See section 97(4) of the RTA. determining the weight hearsay evidence is given the Tribunal may consider why the direct evidence is not being provided and the need to resolve the matter fairly and expeditiously.
In this case the landlord is relying of hearsay statements made by neighbours of the tenants. No written statement was provided which raises concerns around the reliability of the evidence. I consider if the landlord seeks termination in circumstances where the alleged concerns are broadly defined, (ie noise and general disturbance) then direct and detailed supporting evidence from witnesses should have been provided.
I consider the landlord has provided insufficient evidence that the tenant is in breach of her obligations under the tenancy agreement and/or the RTA. I also note that the tenant’s acknowledgement that her child’s father stays 1-2 nights a week is not sufficient evidence that another tenant is residing in the premises.
As the landlord has not proven the tenant has breached her obligations the application is dismissed.

FILING FEE

As the landlord has been unsuccessful in the claim, I decline to award the filing fee.

SUPPRESSION

Neither party sought name suppression

Tenancy Tribunal case 5313959 — 14-day notice at Unit/Flat Flat 4, 32 Bidwill Street, Seaview, Timaru 7910

At a glance

Tenancy Tribunal case 5313959 — 14-day notice at Unit/Flat Flat 4, 32 Bidwill Street, Seaview, Timaru 7910

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

HAS THE TENANT BREACHED ANY OBLIGATION TO THE LANDLORD?

FILING FEE

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

HAS THE TENANT BREACHED ANY OBLIGATION TO THE LANDLORD?

FILING FEE

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.