What was Tenancy Tribunal case 5340802 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 5340802?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5340802?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 5340802?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12764930-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5340802 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 5340802?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5340802?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 5340802?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12764930-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5340802 — Exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s and Landlord’s names and identifying details.
The applications are dismissed for lack of jurisdiction.

Reasons

Both parties attended the hearing held remotely and both parties have made applications to the Tribunal.
The tenant (MS) has applied for compensation, exemplary damages and refund of a bond. His view is that this a tenancy which contains illegal terms, that he has suffered detriment from house conditions and that he has been taken advantage of.
The landlord’s (AG) application disputes the tenant’s allegations and says this is a flatting or house-sharing arrangement.
A copy of the written agreement between the parties was provided in evidence. This is headed up “Flat/house sharing agreement” and names AG as “Head Tenant” and MS as “Flatmate”.

Does the Tenancy Tribunal have jurisdiction in this dispute?

The first issue is whether the Tenancy Tribunal has jurisdiction (the legal authority) to decide this dispute.
If the Tribunal does not have jurisdiction, then I must dismiss the applications.
The Residential Tenancies Act 1986 (RTA) applies to “every tenancy for residential purposes except as specifically provided”; section 4 RTA.
The word “tenancy” means the right to occupy residential premises in exchange for rent; see the definitions in section 2 RTA.
Some premises/properties and some situations are specifically excluded from the RTA. These are listed in section 5 RTA.
One of the exclusions is s5(1)(n) which says:- where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family:
A “landlord” is the person who grants the tenancy (or their agent); s2 RTA.
The purpose of section 5(1)(n) RTA is to exclude from the Act the situation where an owner, or a head tenant, of a house rents out a room or part of the house to someone else while the principal use of the house remains as accommodation for the owner or head tenant. 1
Section 10 RTA says that the person who says the RTA does not apply has the task of proving that.

Is this a tenancy between a landlord and a tenant?

AG described himself as the head tenant and says he is not a landlord. He explained that he manages the renting of the house for his brother (DG) who owns the premises.
AG says that he and DG both also live at the premises.
DG may be the legal owner but that does not make him the landlord.
The landlord is the person who granted or gave MS the right to live at the house (see paragraph 11 above).
AG is the person MS communicated with and paid rent to and is also the person named on the flat/house sharing agreement.
It does not matter that AG is called “Head Tenant” on the agreement. AG granted MS the right to live at the house, so AG is MS’s “landlord” using the definition in the RTA. 1 As affirmed by the High Court in Cavanagh v Jackson [2025] NZHC 1491 at 32.
And the arrangement is a “tenancy” because MS paid rent to AG to live at the house (see paragraph 8 above).
The real question is whether this is a tenancy that is excluded by s5(1)(n) RTA because AG or the owner of the premises lives at the same premises as MS and shares the premises with him/them.

What is the evidence about the living arrangements at the premises?

The relevant written evidence is the copy of the Flat/house sharing agreement. It is signed by both AG and MS.
The agreement starts with a bold clause which says: The flatmate and the head tenant agree to share premises on the following terms:
The terms include the start date, weekly rent and a bond, and that the term is for a minimum of 6 months.
The final clause says: In the event of any dispute, the parties agree that the dispute will be determined by the Disputes Tribunal.
The use of the words “flatmate” and “share premises” and the clause that the Disputes Tribunal will decide disputes all suggest the parties intended this to be a flatmate situation where MS lived with AG and shared the house. This would mean s5(1)(n) RTA would apply and this tenancy would be excluded from the Tribunal’s jurisdiction.
The terms of any written agreement between people is important because it is good evidence of what they agreed to and usually written contracts are binding.
However, the District Court has said the exclusions in section 5 RTA must be interpreted strictly and not liberally 2 and the Tribunal must not just accept what is written in an agreement or what the parties call the arrangement. I must look at all the evidence to decide. 3
AG and MS both gave oral evidence but say two very different things.
AG says this is a four-bedroom house with three bathrooms one living area, a main kitchen and a “coffee nook”. He said MS used one bedroom, AG and his brother (who is also the owner of the house) slept in another bedroom, a third person (L) lived in a third bedroom, and a couple lived in the fourth bedroom (with exclusive use of an en-suite bathroom attached).
The landlord says the six occupants of the house shared and all had access to the main kitchen, coffee nook, and living room and used the same entrance to 2 See Martin v Suite Places Limited (DC) Auckland CIV-2009-004-1671 3 Watson v Watson and Roo (Christchurch District Court, CIV-2010-009-2030 the house. He says two other bathrooms were shared equally between all occupants.
The tenant (MS) disputes this. He says that he had the use of only his bedroom, one of the shared bathrooms and a kitchen-type area located in the garage. This seems to be the same area referred to by the landlord as the coffee nook. The tenant says this contained a microwave, fridge, laundry sink used for washing dishes etc, and an oven that did not work.
MS says AG did not live at the premises and that he did not meet him until about two weeks after the tenant moved in. He noted that AG has a wife and child who don’t live at the premises.
MS explained that L showed him around the property before he moved in and pointed out the areas that were for his use which were his room, one of the shared bathrooms, and the kitchen area in the garage. MS agrees that a young couple lived at the property but says they lived in the living room and main kitchen. He described closed sliding doors between the hallway and the living/kitchen area and said he had the very firm impression that this was the exclusive area of the couple. The tenant also says that a few weeks after he moved in, an additional, older couple also came to live at the house, and he believes they lived in the room with en-suite attached.
In response to the tenant’s oral evidence, AG agreed that he has a wife and child and said that they live in Auckland because of family issues. He reiterated that he did indeed live at the tenancy address in this house. He disagrees that anyone told the tenant that he could not access the living area and kitchen and said that he has seen MS using the main kitchen. He commented that if the tenant chose to keep to himself and not cook at home then that was his choice, but it did not mean that he could not access those facilities. The landlord said that the older couple are the parents of the younger couple and did not live at the house but agrees they were there frequently (for part of the time) to assist with the younger couples’ new baby.
Neither of the parties has supplied independent evidence to verify their version of the living arrangements. There were no photographs or texts/messages or emails that assist me.
As the hearing went on, I asked more about AG’s brother who owns the property. AG explained that he manages the living arrangements and that most of the people who live in the house are either family or close family friends. The landlord said that L and the young couple pay rent to live at the address.
I asked the landlord if it was possible for me to speak to his brother and he agreed that it was. I telephoned the number given to me and a person confirmed his name (DG), that he owns this property, and that he lived there with AG.
DG confirmed the landlord’s version of the living arrangements when I asked him. He was not prompted by anyone. Of particular significance is that he said that MS had used the main kitchen at times when he first moved in but had then said that he didn’t like cooking and preferred to order food in.
DG was quite upset about the application made by the tenant saying things like “you lived in my house and now you claim this”, “who said you couldn't use the living area and kitchen?” and “you chose to buy your meals out and so on, why do you make all this trouble for us?”.
Neither party arranged for me to be able to speak to L, and when I asked if he was available, I was told that neither party had his contact number handy. Decision
The Tribunal must make its decisions based on the evidence that it has in front of it.
I have decided that it is more probable than not, that:- a. MS lived in the same premises as AG and DG. b. The house was not physically divided into multiple and separate self- contained areas. There was one entrance and the bathroom and kitchen- area in the garage used by MS were not exclusive to him. Other occupants of the house also used them. c. The spontaneous oral evidence from DG persuades me that MS was not excluded from the main kitchen and living area. MS may have felt excluded or uncomfortable, but he accepted (when I asked him) that no one actually told him he could not use these. d. The written agreement also supports a finding that this was a house- sharing arrangement. It refers to sharing the house, does not define or limit the tenant’s access to any part of the premises, and specifically refers to the Disputes Tribunal as the forum for resolving disputes. e. I find that DG is the owner of the premises and that he lives at the premises. f. I also find it more probable than not that AG lives at the premises.
My decision is that this is a tenancy whereby MS shared the premises with both the owner (DG) and the “landlord” (AG). It is excluded from the RTA by section 5(1)(n) RTA.
It is not a boarding house because there were not six or more “tenants” living there. There were four tenants. The owner and AG are not tenants.
This means the Tenancy Tribunal does not have jurisdiction to make decisions on the applications made by the parties.
I must dismiss both applications.
As agreed by the parties in their written agreement, any dispute must be determined by the Disputes Tribunal.
The parties did discuss some of their issues in the hearing and it seems that the bond amount has been kept by AG at MS’s request because he did not pay rent for the last weeks of the tenancy. The bond did not have to be lodged at the Bond Centre because this tenancy is excluded from the RTA. Suppression of name
The Tribunal does not have jurisdiction so I cannot make an order about the filing fees.
The Residential Tenancies Act 1986 does not apply to this living arrangement so neither party can have breached that Act. For this reason, I consider there to be no public interest in the parties’ identity so suppress both parties’ names from the published order.

Tenancy Tribunal case 5340802 — Exemplary damages

At a glance

Tenancy Tribunal case 5340802 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Does the Tenancy Tribunal have jurisdiction in this dispute?

Is this a tenancy between a landlord and a tenant?

What is the evidence about the living arrangements at the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Does the Tenancy Tribunal have jurisdiction in this dispute?

Is this a tenancy between a landlord and a tenant?

What is the evidence about the living arrangements at the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions