What was Tenancy Tribunal case 5378402 about?

The tribunal order states: The Tribunal orders suppression of the Tenant and Landlord’s name and

How much money was awarded in case 5378402?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5378402?

The dispute type was not classified.

Where can I read the official tribunal order for case 5378402?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13137474-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5378402 about?

The tribunal order states: The Tribunal orders suppression of the Tenant and Landlord’s name and

How much money was awarded in case 5378402?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5378402?

The dispute type was not classified.

Where can I read the official tribunal order for case 5378402?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13137474-Tribunal_Order_Redacted.pdf.

4 Cranbrook Grove, Waikanae, Waikanae 5036 Tenancy Tribunal Case 5378402 — Tenancy dispute

Order

The Tribunal orders suppression of the Tenant and Landlord’s name and identifying details.
The application that the fixed term tenancy be reduced is dismissed.
The application for a declaration that the fixed term tenancy between the Landlord and the Tenant can be terminated by a mortgagee as if it was a periodic tenancy, is struck out.

Reasons

Both parties attended the hearing which was held by teleconference. One of the trustees represented both trustees.
This Order ought to be read together with the Order dated 10 December 2025. The hearing on that day was adjourned because there was insufficient time scheduled to hear it in its entirety.
The applicant seeks a reduction of the fixed term tenancy and a declaration that the mortgagee can terminate the fixed term tenancy as if it was a periodic tenancy. Background
The landlord owns a business which instals digital billboards. It had been in existence for two years before BNZ lent the company $250,000.00.
In 2019 the applicant and respondent agreed that the business should be given an injection of cash so that business growth would speed up “exponentially”.
The applicant did not go to BNZ for a further loan, knowing that it would not fit within BNZ’s lending criteria. BNZ also refused to lend the applicant money, with the respondent’s house as security.
The applicant and respondent then agreed that the respondent would sell his house to the applicant in return for the respondent receiving a fixed term tenancy, due to expire in 2039, and with rent being payable at $10.00 per week.
The respondent was then able to use the house as security for a loan from BNZ.
The tenancy agreement was signed on 17 December 2019 and the Trust settled the property on 3 February 2020.
On 26 March 2020 COVID locked down the country. The landlord’s business did not receive government support in the wake of the lockdown.
In August 2020 BDO issued a negative report on the business’s finances and based on this report, the BNZ declined to lend the business any further money.
On 3 September 2021 the respondent instructed his solicitors to register a caveat against the property. On 14 September 2021 the applicant applied for the Caveat to lapse. On 4 October 2021 the respondent applied to the High Court seeking an order that the caveat not lapse. The hearing was held on 9 February 2022 and on 1 March 2022 the High Court upheld the caveat.
In October 2024 CAANZ upheld a conflict of interest complaint relating to the BDO report.
On 26 July 2025 BNZ issued a Property Law Act notice which indicated its intention to foreclose on the debt owed to it by the applicant.
In October 2025 the Tenancy Tribunal struck out a claim made by the applicant against the respondent.
The applicant then submitted the current application to the Tribunal.
Th initial application asked the Tribunal to declare that the respondent’s fixed term tenancy can be terminated by a mortgagee as if it was a periodic tenancy.
The application was later amended to include an application to the Tribunal to reduce the fixed term tenancy.
I shall address each of these claims in turn. Declaration that the fixed term tenancy can be terminated by a mortgagee as if it was a periodic tenancy
The applicant submitted an argument supporting their view that a mortgagee in possession can terminate a fixed term tenancy as if it was a periodic tenancy.
However I am striking out this claim because the mortgagee is not a party to this application. This part of the application concerns the mortgagee and s58 of the Residential Tenancies Act 1986. Section 58 does not apply to a landlord.
As stated in the earlier Tribunal hearing between the same parties, a landlord cannot make an application on behalf of another person or entity when they have no authority to do so.
There is therefore no cause of action here and so this part of the applicant’s claim is struck out. Reduction in fixed term tenancy
The following is an outline of the law relating to this issue. It has been set out in many previous Tenancy Tribunal decisions.
The Tribunal may only reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) RTA.
The jurisdiction in s66 is an extension to the doctrine of frustration found in the general law of contract. Section 66 is used to seek a balance between the competing interests of applicants and respondents.
Given the sanctity of a contract, the threshold is high.
The first issue to consider is whether there has been an unforeseen change in the landlord’s circumstances.
As outlined in the applicant’s submissions, the term “unforeseen” is a legal term defined by reference to the reverse (foreseeability). In cases relating to negligence (in determining whether a duty of care is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage) there is a body of case law which has established that: (a) foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform themselves of the circumstances; (b) an outcome is foreseeable in legal terms if it is “liable to result”, “not unlikely”, “quite likely”, a “real danger”, a “serious possibility” or a “real risk”; (c) The term “unforeseen” has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk”.
The applicant states that there has been an unforeseen change in their circumstances. He says that in 2019, when the deal was struck between the Trust and the respondent, the business was going well. He says that it was the COVID epidemic and a negligent BDO report, both of which were unforeseen, which caused the business to fail.
I note that in the applicant’s submissions a reference was also made to the respondent’s having placed a caveat on the property in September 2021, as being an unforeseen event which prevented the applicant from borrowing to trade out of the financial difficulties.
This issue was not pursued at hearing and the applicant was clear that he was relying on two events (COVID and a negligent BDO report) to support the application for a reduction of the fixed term tenancy.
For the sake of completeness I refer to the caveat below.
Having considered the oral and written evidence, I do not find it established that there has been an unforeseen change in the applicant’s circumstances. I say this for reasons that include: (a) While the circumstances surrounding the business failure (COVID and the negative and inaccurate BDO report) were certainly unexpected, the fact of a business failing is not unforeseen; and (b) Even though the business was reportedly going well prior to COVID, that does not mean that even if COVID and the BDO report did not occur, that it could be unforeseen that the business might fail in the future; and (c) The possibility that the business might fail was heralded by the applicant as early as 2019 when the respondent was intending to use his property as security. At that time the applicant advised him that he could lose his house if the business failed. While this is now a situation where the landlord owns the house and not the respondent, the object of the comment remains the same. In other words, the applicant was aware of the risk of a business failure and in my view it makes no difference that that view was expressed when the respondent was the owner of the property; and (d) In an affidavit dated 29 January 2021, at paragraph 39, the applicant deposed that the business’s trading position was” returning” and “has improved”. He goes on to say that he accepted (as did his father when they were discussing putting forward the property as security for a loan), “that there is a risk in any business and the pandemic has had an impact on the business”; and (e) This indicates that subsequent to the pandemic and the negative BDO report, the business was improving but that the applicant acknowledged again at this time that there was a risk in any business; and (d) There was no evidence put forward that the respondent’s lodging of a caveat was unforeseen. In any event I do not consider this to be an unforeseen change in the applicant’s circumstances. This is because the lodging of a caveat to protect a party’s interest is not an unforeseen response when a business is failing, and the prospect of the business failing was in itself, an unforeseen change in circumstance.
Given my finding that the applicant has not been able to show that there was an unforeseen change in the applicant’s circumstances, there is no need for me to consider the remaining part of the section which deals with hardship. Mortgagee sale
I note that at the hearing on 11 February 2026, the landlord stated that they only sought a reduction of the fixed term if there was a mortgagee sale. Further, if there was a mortgagee sale, then the applicant wanted the fixed term to end on settlement date.
Again, given my earlier finding that the applicant’s claim that there has been an unforeseen change in circumstances has not been proven, there is no need for me to address this issue. The principle in Henderson v Henderson
At the end of the hearing on 11 February 2026, the respondent expressed deep upset that the applicant continued to bring claims against him. While there was no application as such to have this matter struck out as an abuse of process, I set out below the principle of Henderson v Henderson.
This principle of Henderson v Henderson arises from a decision issued long ago, in 1843. That Judgment, Henderson v Henderson (1843) 2 HARE 100, states in part: In trying this question I believe I state the Rule of Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which ought to have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence of even accident omitted part of their case. The plea of res judicata applies, except in some cases, not only to the points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but their every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
In the much more recent High Court decision of Mah v Tey [2013] NZHC 573, the High Court confirmed that: It is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings.
The Court of Appeal in Petersen v Lucas [2015] NZCA 627, the Court of Appeal confirmed an earlier decision that: A party cannot bring a case relating to a certain party, certain consequences of conduct, and a certain time frame and then when it fails bring another case raising similar complaint relating to the same party, the same sequence and the same timeframe. Parties must bring their whole case to the Court so there can be finality of litigation.
The principle brings finality to disputes by requiring that a party bring all claims at the first instance. However, the principle is not an absolute prohibition on bringing claims at a later time involving the same or similar parties, or related facts. Consideration of the application of this principle turns on the facts of each particular case.
I bring this principle to the parties’ attention as a way of responding to the respondent’s upset. It has played no part in my decision and I have considered the applicant’s claims on their merits. Suppression of names
Section 95A of the Residential Tenancies Act 1986 provides that: (1) The Tribunal may, on the application of any party to the proceedings or on its own initiative, having regard to the interests of the parties and to the public interest order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (2) An order may be subject to any conditions that the Tribunal considers appropriate. (3) If a party that has wholly or substantially succeeded in the proceedings applies for an order that their name or identifying particulars not be published, the Tribunal must make the order unless the Tribunal considers that publication is in the public interest, or is justified because of the party’s conduct or any other circumstances of the case.
The applicant has sought a non-publication order because he does not see any public interest in the publication of their names.
On my own initiative I have suppressed both parties’ names. While I see there may be public interest in the decision, (and so the decision will be published) both parties’ names will be suppressed. I see this as a sensitive and difficult issue between family members and so any public interest in publication of their names is outweighed by the personal nature of this dispute. C ter Haar 17 February 2026

Order

The Tribunal orders suppression of the Tenant and Landlord’s name and identifying details.

The application that the fixed term tenancy be reduced is dismissed.

The application for a declaration that the fixed term tenancy between the Landlord and the Tenant can be terminated by a mortgagee as if it was a periodic tenancy, is struck out.

Reasons

Both parties attended the hearing which was held by teleconference. One of the trustees represented both trustees.

This Order ought to be read together with the Order dated 10 December 2025. The hearing on that day was adjourned because there was insufficient time scheduled to hear it in its entirety.

The applicant seeks a reduction of the fixed term tenancy and a declaration that the mortgagee can terminate the fixed term tenancy as if it was a periodic tenancy. Background

The landlord owns a business which instals digital billboards. It had been in existence for two years before BNZ lent the company $250,000.00.

In 2019 the applicant and respondent agreed that the business should be given an injection of cash so that business growth would speed up “exponentially”.

The applicant did not go to BNZ for a further loan, knowing that it would not fit within BNZ’s lending criteria. BNZ also refused to lend the applicant money, with the respondent’s house as security.

The applicant and respondent then agreed that the respondent would sell his house to the applicant in return for the respondent receiving a fixed term tenancy, due to expire in 2039, and with rent being payable at $10.00 per week.

The respondent was then able to use the house as security for a loan from BNZ.

The tenancy agreement was signed on 17 December 2019 and the Trust settled the property on 3 February 2020.

On 26 March 2020 COVID locked down the country. The landlord’s business did not receive government support in the wake of the lockdown.

In August 2020 BDO issued a negative report on the business’s finances and based on this report, the BNZ declined to lend the business any further money.

On 3 September 2021 the respondent instructed his solicitors to register a caveat against the property. On 14 September 2021 the applicant applied for the Caveat to lapse. On 4 October 2021 the respondent applied to the High Court seeking an order that the caveat not lapse. The hearing was held on 9 February 2022 and on 1 March 2022 the High Court upheld the caveat.

In October 2024 CAANZ upheld a conflict of interest complaint relating to the BDO report.

On 26 July 2025 BNZ issued a Property Law Act notice which indicated its intention to foreclose on the debt owed to it by the applicant.

In October 2025 the Tenancy Tribunal struck out a claim made by the applicant against the respondent.

The applicant then submitted the current application to the Tribunal.

Th initial application asked the Tribunal to declare that the respondent’s fixed term tenancy can be terminated by a mortgagee as if it was a periodic tenancy.

The application was later amended to include an application to the Tribunal to reduce the fixed term tenancy.

I shall address each of these claims in turn. Declaration that the fixed term tenancy can be terminated by a mortgagee as if it was a periodic tenancy

The applicant submitted an argument supporting their view that a mortgagee in possession can terminate a fixed term tenancy as if it was a periodic tenancy.

However I am striking out this claim because the mortgagee is not a party to this application. This part of the application concerns the mortgagee and s58 of the Residential Tenancies Act 1986. Section 58 does not apply to a landlord.

As stated in the earlier Tribunal hearing between the same parties, a landlord cannot make an application on behalf of another person or entity when they have no authority to do so.

There is therefore no cause of action here and so this part of the applicant’s claim is struck out. Reduction in fixed term tenancy

The following is an outline of the law relating to this issue. It has been set out in many previous Tenancy Tribunal decisions.

The Tribunal may only reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) RTA.

The jurisdiction in s66 is an extension to the doctrine of frustration found in the general law of contract. Section 66 is used to seek a balance between the competing interests of applicants and respondents.

Given the sanctity of a contract, the threshold is high.

The first issue to consider is whether there has been an unforeseen change in the landlord’s circumstances.

As outlined in the applicant’s submissions, the term “unforeseen” is a legal term defined by reference to the reverse (foreseeability). In cases relating to negligence (in determining whether a duty of care is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage) there is a body of case law which has established that: (a) foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform themselves of the circumstances; (b) an outcome is foreseeable in legal terms if it is “liable to result”, “not unlikely”, “quite likely”, a “real danger”, a “serious possibility” or a “real risk”; (c) The term “unforeseen” has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk”.

The applicant states that there has been an unforeseen change in their circumstances. He says that in 2019, when the deal was struck between the Trust and the respondent, the business was going well. He says that it was the COVID epidemic and a negligent BDO report, both of which were unforeseen, which caused the business to fail.

I note that in the applicant’s submissions a reference was also made to the respondent’s having placed a caveat on the property in September 2021, as being an unforeseen event which prevented the applicant from borrowing to trade out of the financial difficulties.

This issue was not pursued at hearing and the applicant was clear that he was relying on two events (COVID and a negligent BDO report) to support the application for a reduction of the fixed term tenancy.

For the sake of completeness I refer to the caveat below.

Having considered the oral and written evidence, I do not find it established that there has been an unforeseen change in the applicant’s circumstances. I say this for reasons that include: (a) While the circumstances surrounding the business failure (COVID and the negative and inaccurate BDO report) were certainly unexpected, the fact of a business failing is not unforeseen; and (b) Even though the business was reportedly going well prior to COVID, that does not mean that even if COVID and the BDO report did not occur, that it could be unforeseen that the business might fail in the future; and (c) The possibility that the business might fail was heralded by the applicant as early as 2019 when the respondent was intending to use his property as security. At that time the applicant advised him that he could lose his house if the business failed. While this is now a situation where the landlord owns the house and not the respondent, the object of the comment remains the same. In other words, the applicant was aware of the risk of a business failure and in my view it makes no difference that that view was expressed when the respondent was the owner of the property; and (d) In an affidavit dated 29 January 2021, at paragraph 39, the applicant deposed that the business’s trading position was” returning” and “has improved”. He goes on to say that he accepted (as did his father when they were discussing putting forward the property as security for a loan), “that there is a risk in any business and the pandemic has had an impact on the business”; and (e) This indicates that subsequent to the pandemic and the negative BDO report, the business was improving but that the applicant acknowledged again at this time that there was a risk in any business; and (d) There was no evidence put forward that the respondent’s lodging of a caveat was unforeseen. In any event I do not consider this to be an unforeseen change in the applicant’s circumstances. This is because the lodging of a caveat to protect a party’s interest is not an unforeseen response when a business is failing, and the prospect of the business failing was in itself, an unforeseen change in circumstance.

Given my finding that the applicant has not been able to show that there was an unforeseen change in the applicant’s circumstances, there is no need for me to consider the remaining part of the section which deals with hardship. Mortgagee sale

I note that at the hearing on 11 February 2026, the landlord stated that they only sought a reduction of the fixed term if there was a mortgagee sale. Further, if there was a mortgagee sale, then the applicant wanted the fixed term to end on settlement date.

Again, given my earlier finding that the applicant’s claim that there has been an unforeseen change in circumstances has not been proven, there is no need for me to address this issue. The principle in Henderson v Henderson

At the end of the hearing on 11 February 2026, the respondent expressed deep upset that the applicant continued to bring claims against him. While there was no application as such to have this matter struck out as an abuse of process, I set out below the principle of Henderson v Henderson.

This principle of Henderson v Henderson arises from a decision issued long ago, in 1843. That Judgment, Henderson v Henderson (1843) 2 HARE 100, states in part: In trying this question I believe I state the Rule of Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which ought to have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence of even accident omitted part of their case. The plea of res judicata applies, except in some cases, not only to the points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but their every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

In the much more recent High Court decision of Mah v Tey [2013] NZHC 573, the High Court confirmed that: It is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings.

The Court of Appeal in Petersen v Lucas [2015] NZCA 627, the Court of Appeal confirmed an earlier decision that: A party cannot bring a case relating to a certain party, certain consequences of conduct, and a certain time frame and then when it fails bring another case raising similar complaint relating to the same party, the same sequence and the same timeframe. Parties must bring their whole case to the Court so there can be finality of litigation.

The principle brings finality to disputes by requiring that a party bring all claims at the first instance. However, the principle is not an absolute prohibition on bringing claims at a later time involving the same or similar parties, or related facts. Consideration of the application of this principle turns on the facts of each particular case.

I bring this principle to the parties’ attention as a way of responding to the respondent’s upset. It has played no part in my decision and I have considered the applicant’s claims on their merits. Suppression of names

Section 95A of the Residential Tenancies Act 1986 provides that: (1) The Tribunal may, on the application of any party to the proceedings or on its own initiative, having regard to the interests of the parties and to the public interest order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (2) An order may be subject to any conditions that the Tribunal considers appropriate. (3) If a party that has wholly or substantially succeeded in the proceedings applies for an order that their name or identifying particulars not be published, the Tribunal must make the order unless the Tribunal considers that publication is in the public interest, or is justified because of the party’s conduct or any other circumstances of the case.

The applicant has sought a non-publication order because he does not see any public interest in the publication of their names.

On my own initiative I have suppressed both parties’ names. While I see there may be public interest in the decision, (and so the decision will be published) both parties’ names will be suppressed. I see this as a sensitive and difficult issue between family members and so any public interest in publication of their names is outweighed by the personal nature of this dispute. C ter Haar 17 February 2026

Tenancy Tribunal case 5378402 — Tenancy dispute at 4 Cranbrook Grove, Waikanae, Waikanae 5036

At a glance

Claims & awards

Tenancy Tribunal case 5378402 — Tenancy dispute at 4 Cranbrook Grove, Waikanae, Waikanae 5036

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions