What was Tenancy Tribunal case 5370584 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 5370584?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5370584?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 5370584?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12817005-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5370584 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 5370584?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5370584?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 5370584?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12817005-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5370584 — Harassment

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the applicant’s name and identifying details.
[The applicant/s] is granted possession of the premises at [Tenancy address suppressed] immediately.

Reasons

The Tribunal must consider an application filed by [The applicant/s] seeking a possession order in relation to a dwelling in [Town]. Deon John Kelly is in possession of the premises.
The premises belong to [The applicant/s]’s mother [The owner]. Mr Kelly is living in the premises, and [The applicant/s] states he has failed to leave despite being given notice to leave.
[The applicant/s] position is that her mother is in a rest home, suffering dementia, and therefore unable to make her own decisions. [The applicant/s] relies on an enduring power of attorney (EPA), and on the basis of that, has required that Mr Kelly leave the premises.
[The applicant/s] has applied to the Tribunal for a possession order so she can have the premises provided to her.
A telephone hearing was convened on 5 November 2025. At that hearing, Mr Kelly disputed that [The owner] is unable to make her own decisions. Mr Kelly advised me he is living in the premise as kaitiaki, and the intention is for [The owner] to return home. Mr Kelly advised me that he is [The owner]’s guardian.
Mr Kelly advised that he has documentation from [The owner] confirming that can continue living in the premises.
Mr Kelly also advised that he is in the process of involving the Family Court in relation to the dispute over [The owner]’s care, and the premises.
The hearing on 5 November was adjourned, so the parties could file any further evidence they wish.
The hearing was convened again by phone today on 3 December 2025. Both parties were in attendance today.

APPLICANTS CASE

The applicant’s position is that a possession order should be granted, because she and her sister have an EPA, and they do not consider that Mr Kelly is looking after the dwelling.
[The applicant/s] advised that they want to bring [The owner] home, and in order to do that they will need to engage with professional caregivers, but need to have the house returned so that can be achieved. At this time, [The owner] is living in rest home, but once the property has been returned, they will move toward her getting home.

RESPONDENTS CASE

In response, Mr Kelly advised that he was brought in to look after [The owner]. Mr Kelly disputes that he has not looked after the premises, and his view is that he has properly cared for [The owner]. Mr Kelly says that [The owner] has given them full consent to live in the premises.
Mr Kelly says that [The owner] is not aware how [The applicant/s] ended up with an EPA, and because that, there are proceedings in the Family Court to challenge that.
At the hearing, Mr Kelly set out his view of the dispute within his whānau.

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.
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.
It is the applicant that must prove their case. 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.

ANALYSIS

The application from [The applicant/s] would be an application under section 65 of the RTA. Section 65 relates to the eviction of squatters. A squatter is a person in possession of premises when they are not a lawful tenant, or otherwise do not have legal authority to hold possession of the premises.
Section 65 holds:
Eviction of squatters (1) Where, on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person, the Tribunal shall make a possession order granting possession of the premises to the applicant. (2). ... (3). To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
Section 65 was considered by the High Court in Sergeant v Nigro and Tapsell [2019] NZHC 328. The Court held [at 74] that there are three conditions which have to be met before a possession order can be made: (a) The premises which are the subject of the application must be residential premises; and (b) The applicant for possession must be entitled to possession of those premises; and (c) Another person or persons are in possession as squatters, trespassers, or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so.
If the Applicant can prove (a) and (b) then the onus will move to the Respondent to prove on the balance of probabilities that they have a right of occupation granted by any person with lawful authority to grant it and that the right has not been terminated.
It is also relevant to note that the High Court in Sergeant v Nigro, in paragraphs [91], [92], [93] and [94] confirmed that the Tribunal is not entitled to take into account the fact that there may be a claim in another court when considering the possession application. Gordon J states at paragraph 94 of the decision, “It is not open to the Tribunal to consider the fact of a claim or the contents of the claim in another court when deciding if the trustees were entitled to possession”.
I will consider the three part test confirmed by the High Court. Are the premises residential premises
The answer is ‘yes’, the premises are a house, and there is no suggestion it is not residential premises. Therefore, the first test has been met. Is [The applicant/s] entitled to possession of the premises?
I find that [The applicant/s] is entitled to possession of the premises.
There is no dispute that [The owner] is the owner of the premises. That would normally mean that [The owner] would of course be entitled to possession of the premises, but it also means that as the owner, she could lease or licence the premises. A licence simply means that [The owner] has given someone permission to be on the premises. The evidence is that [The owner] gave Mr Kelly a licence (permission) to live in the house.
However, a licence can be revoked. In Paraire v Paraire — Part Mangatawa 10 Block (2015) 105 Waikato Maniapoto MB 67 (105 WMN 67) Judge Clark discussed the revocation of a bare licence as follows: A bare licence is revocable at will. The decision to revoke a bare licence must be communicated to the licensee for effective revocation. This may be by express or implicit notice, or by the licensor doing some act inconsistent with the continuance of the licence, or by threatening proceedings for trespass.
In this case, while [The applicant/s] has not framed her argument legally as I am about to put it, what she is in effect saying is that she has revoked Mr Kelly’s licence to occupy the premises, relying on the power she has as Attorney under the EPA.
[The owner] has executed an Enduring Power of Attorney (EPA) in relation to personal care and welfare, and also a second EPA in relation to property. It is the EPA in relation to property that will be relevant.
The statutory basis for the EPA is the Protection of Personal and Property Rights Act 1988. Section 97 sets out what an EPA in relation to property can do: Enduring power of attorney in relation to property (1) A donor of an enduring power of attorney may authorise the attorney to act generally in relation to the whole or a specified part of the donor’s affairs in relation to his or her property, or to act in relation to specified things on the donor’s behalf, and in either case such authorisation may be given subject to conditions and restrictions. (2) Where a donor of an enduring power of attorney authorises the attorney to act generally in relation to the whole or a specified part of the donor’s affairs in relation to the donor’s property, the attorney shall have authority to do anything on behalf of the donor that the donor can lawfully do by an attorney, but subject to sections 100 and 107 and to any conditions or restrictions contained in the enduring power of attorney.
In that EPA she has appointed [The applicant/s] as her attorney. I have reviewed the EPA, which confirms that [The applicant/s] can act as [The owner]’s attorney “while I am mentally capable, and continues in effect if I become mentally incapable”.
While [The applicant/s] has provided medical evidence supporting that [The owner] is mentally incapable, I accept that the EPA would not require that for her authority to arise under that EPA.
What this means, is that [The applicant/s] as Attorney can do anything in relation to the property, including the house, that [The owner] could do. [The applicant/s] could revoke any licence issued to Mr Kelly by [The owner] – and she has clearly done that.
I find therefore, that [The applicant/s] has lawful authority revoke Mr Kelly’s licence to live on the premises, and the result must be that she is entitled to possession of the premises on behalf of [The owner]. Does Mr Kelly otherwise have a lawful right to occupy the premises
I find that Mr Kelly has not established a legal right to occupy the premises. He is not a tenant, and no other basis for his lawfully remaining in possession of the premises has been identified.
Mr Kelly points to proceedings that he has or is about to file in the Family Court. That may well be the case, but as the High Court has confirmed in Sergeant above, that is not a defence to a claim for a possession order under section 65.
The end result is that I must order that possession return to [The applicant/s] immediately.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case [The applicant/s] applies for name suppression, which is granted, given she has been entirely successful in the application.

Tenancy Tribunal case 5370584 — Harassment

At a glance

Claims & awards

Tenancy Tribunal case 5370584 — Harassment

At a glance

Claims & awards

Order

Reasons

APPLICANTS CASE

RESPONDENTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

APPLICANTS CASE

RESPONDENTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions