What was Tenancy Tribunal case 5453751 about?

The tribunal order states: Mr Kearney’s application to reduce the fixed term tenancy is dismissed.

How much money was awarded in case 5453751?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5453751?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5453751?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13841262-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5453751 about?

The tribunal order states: Mr Kearney’s application to reduce the fixed term tenancy is dismissed.

How much money was awarded in case 5453751?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5453751?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 5453751?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13841262-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5453751 — Rent arrears

Order

Mr Kearney’s application to reduce the fixed term tenancy is dismissed.
The Tribunal orders suppression of [The landlord/s] name and the tenancy address.

Reasons

Both parties attended the remote hearing on 30 June 2026.
Mr Kearney attended by himself. Ms Corneal, the property manager attended by herself on behalf of the landlord. [The landlord/s] (Ms R) attended with a support person. Issue
This dispute relates to a tenancy in Rangiriri. Mr Kearney and Ms R are joint tenants. The tenancy commenced on 18 July 2025. The tenancy agreement has a contractual end date of 17 July 2026.
Mr Kearney has applied for reduction of the term of the fixed-term tenancy.
Mr Kearney has filed this application and named Ms R as a respondent. Ms R opposes the application for the fixed-term for Mr Kearney to be reduced.
Following a discussion about the intention for the tenancy moving forward, Ms R gave the landlord written notice to terminate the tenancy during the hearing. The landlord accepted the termination notice and agreed that the notice period may be reduced from 21 days. As I indicated at the hearing, whatever the outcome of Mr Kearney’s application, the tenancy will end on 17 July 2026 for both tenants. Relevant legal provisions
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 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. 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.
As noted by the District Court in Kaipo v Clarke & McCarthy 1 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.” Relevant law - Reducing a fixed term tenancy
The usual legal position with fixed-term contracts, is that the term of the contract will be applied strictly, and it will only be in limited circumstances, that a decision maker like the Tribunal would interfere with that term. In the case of residential tenancies, one of these circumstances is found in section 66 of the RTA, which allows for the reduction of fixed term-tenancy agreements. That provision holds in part: 66 Reduction or termination of fixed-term tenancy (1) On application by a party to a fixed-term tenancy, the Tribunal may make an order reducing the term of the tenancy by a period stated in the order, and making such variations in the terms of the tenancy as are necessary because of the reduction of the term, where it is satisfied that, because of an unforeseen change 1 Kaipo v Clarke & McCarthy (DC) TT233/02 in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced. (2) Where the Tribunal makes an order under subsection (1), the Tribunal may order that the applicant pay to the other party an amount determined by the Tribunal by way of reasonable compensation for any loss or damage to the other party which would result from the reduction in the term of the tenancy.
There is a high threshold that needs to be met before the Tribunal will reduce the fixed-term. In particular the applicant will need to establish that: a. there has been an unforeseen change in the applicant’s circumstances; and b. that unforeseen change will result in severe hardship to the applicant if the tenancy is not ended; and c. the severe hardship the applicant would suffer if the term was not reduced exceeds the hardship the other party would suffer if the term was reduced.
In Elliot Lawes and ors v Comprende Limited 2 the Tribunal said:
Section 66 sets a high threshold for reducing fixed term tenancies. The jurisdiction in this section is an extension to the doctrine of frustration found in the general law of contract. In most cases, s66 is used to seek a balance between the competing interests of applicant tenants, for whom significant obligations under fixed term agreements can create severe hardship when circumstances unexpectedly turn against them, and landlords, who have financial obligations and expectations of their own arising from the same bargain.
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). In both contexts, there is a body of case law which has established that: 2 Elliot Lawes and ors v Comprende Limited [2022] NZTT 4365020 (a)foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform himself 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”.”
Hardship is not defined in the RTA. However, the New Zealand Law Dictionary, 3 defines hardship as, “adverse repercussions whether mental or physical ranging from temporary discomfort or inconvenience to some permanent and unalterable misfortune”.
Where the Tribunal makes an order reducing the term of the tenancy, the Tribunal may order that the applicant pay to the other party an amount determined by the Tribunal by way of reasonable compensation for any loss or damage to the other party which would result from the reduction in the term of the tenancy. 4 Can an application to reduce a fixed term tenancy be made by less than all the tenants?
The first issue to decide is whether an application to reduce a fixed term tenancy can be made by fewer than all the joint tenants. There is a difference of view about this in previous Tribunal decisions.
I agree with the decision of Adjudicator Prowse in [2024] NZTT 4925973 that it would be unfair to prevent joint tenants (or joint landlords) from making an application merely because not all the co-tenants (or co-landlords) agreed to do so. As she pointed out, this would mean that if one tenant was diagnosed with a terminal illness and would suffer severe hardship if required to continue the tenancy, but the other tenants did not want to end the tenancy, then the unwell tenant would not even have the chance to make an application. 3 New Zealand Law Dictionary, 10th edition, P Spiller, Lexis Nexis New Zealand February 2022. 4 Section 66(2) of the RTA.
The purpose of section 66 RTA is to give a pathway for the Tribunal to consider unforeseen circumstances and balance any hardship which would result if the tenancy term was not reduced.
My decision is that Mr Kearney can make this application without the consent of Ms R, and he has properly named her as a respondent to makes sure she knows about the proceedings and can give her views, as she did so at the hearing. Mr Kearney’s position
Mr Kearney says there has been an unforeseen change in his circumstances as a result of the breakdown in communication between himself and Ms R, making the home a toxic place to live. He is not residing in the premises but still has belongings there. He says he felt unsafe in the premises and the conflict was not good for either tenant’s mental health.
Mr Kearney says there was issues with how the home was kept and a large amount of money went missing from the shared flat account, causing the account to go into overdraft. Mr Kearney says he had to contribute further funds to the joint account to meet outgoings. He says there was delays in getting money back from Ms R.
Mr Kearney says his personal items went missing during the tenancy.
Mr Kearney raised a concern about Ms R washing his pan in the dishwasher despite him asking her not to. Mr Kearney also said there was an ongoing issue with the cleanliness of the premises.
Mr Kearney says Ms R was aggressive and he felt unsafe as a result of the disputes he had with her and used the example of her placing some of his rubbish on his bed, which crossed a personal boundary.
Mr Kearney said he attended at the premises on one occasion and found grass cuttings in his ensuite.
Mr Kearney gave evidence that there had been lengthy ongoing communication between himself and Ms R to resolve replacing him as a tenant and removing him from the tenancy agreement. He says they were unable to finalise any agreement due to the tense communication and a general inability to agree on what he should pay, including an inability to resolve a dispute about potential damage and the need to clean grouting in the ensuite.
Mr Kearney says between Ms R and the subtenant they should be able to cover rent. Mr Kearney says he cannot pay rent for this premises and his new rental in Drury. Mr Kearney said he has some savings. Mr Kearney did not provide documentary evidence in respect of his financial situation, ie current bank statements, details of his current outgoings and income. The landlord’s position
The landlord opposes the fixed term tenancy being reduced.
The landlord says Mr Kearney has not shown that he would experience any hardship.
The landlord raises their doubt at Mr Kearney’s suggestion that Ms R is aggressive and says Mr Kearney should not be able to end the tenancy because the tenants do not get along.
The landlord says the owners have a mortgage to pay and rely on the rent payments so have not agreed to ending the fixed-term tenancy early for Mr Kearney. Ms R’s position
Ms R says Mr Kearney should remain a tenant until the end of the tenancy. She would like to recover unpaid rent from him. Ms R says she and Mr Kearney agreed to rent the premises together for a period of one year.
She says that they agreed, if either of them wished to leave before the end of the fixed term, they would either remain until the end of the tenancy or find a replacement tenant.
She says when the flatmate joined the premises things deteriorated with Mr Kearney and he became less involved and did not assist with inspections and upkeep, did not clean and was untidy. She acknowledged placing some rubbish on Mr Kearney’s bed that he did not dispose of prior to an inspection.
Ms R accepted that she had used some funds from the joint account unintentionally but repaid these funds back. She says the joint tenancy account did not go into overdraft.
Ms R says Mr Kearney left the premises untidy and unclean when he moved out. Ms R says Mr Kearney has left furniture and other belongings at the premises.
Ms R says no items were taken of Mr Kearney’s and missing items were located within the premises.
Ms R agreed that communication between herself and Mr Kearney broke down and they could not resolve how to remove him from the tenancy.
Ms R did not believe Mr Kearney made any effort to find a replacement tenant or assist her in renting out his room.

Unforeseen change in circumstances?

Section 66 of the RTA is intended to capture changes to tenants’ circumstances which are unavoidable and unexpected, such as suffering a job loss or ill health, which require the tenant to relocate.
I consider on the evidence provided that there has not been an unforeseeable change in Mr Kearney’s personal circumstances.
Disputes between tenant’s are common. I consider it more likely than not that Mr Kearney’s unhappiness arose in the tenancy as a result of the other occupants becoming unhappy with his contribution to the household. I consider it should have been foreseeable that issues might arise in those circumstances, and that would need to be managed. The tenants have not been able to communicate effectively to resolve their issues and Mr Kearney made the choice to leave the premises. In the circumstances where he has entered into a fixed-term tenancy, with a contractual obligation to pay rent to the end of the fixed term, he could have looked to find a solution for him to remain in the tenancy or been proactive in finding a replacement tenant. I consider that Ms R was working towards that goal, for example by suggesting a cleaning roster and her willingness to find a replacement tenant. Mr Kearney’s decision to move prior to reaching a resolution to the dispute between the tenants and subsequent need to pay rent at a new address was, in my view, avoidable.
I therefore consider Mr Kearney has not proven that there has been an unforeseen change in his personal circumstances.

Severe hardship?

If I am wrong in my finding above, I note that I do not consider that Mr Kearney will experience severe hardship if the tenancy does not end.
Mr Kearney has not consistently been paying rent but did contribute to the rent arrears that had accumulated by June 2026.
Mr Kearney advised at the hearing that he has savings (approximately $1,000) and the bond remains held with the bond centre for any claims for rent arrears or compensation following the end of the tenancy.
The tenancy has approximately 2 weeks remaining now that Ms R has given notice on behalf of the tenants. Mr Kearney’s bond contribution and savings will potentially cover any liability to the landlord at the end of the tenancy. Ms R has indicated she will seek rent she paid for Mr Kearney from Mr Kearney of approximately $4,000.00. Mr Kearney remains in employment and if ordered to repay this I have no evidence to suggest he would not be able to do so.
In conclusion, I consider that there is insufficient evidence about the tenant’s financial situation to show that he will be unable to meet his rent obligations until the end of the fixed-term tenancy and will suffer severe financial hardship if required to do so. I also consider Mr Kearney has not proven any severe hardship in a non-financial sense, in that his worry arising from the issues with Ms R are not at a level to be considered severe.
Accordingly, Mr Kearney’s application to reduce the fixed-term tenancy is dismissed. Filing fee
Mr Kearney has been unsuccessful in the application; therefore, I decline to award the filing fee. Suppression
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, 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. 5
The Tribunal may, on the application of any party to 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 and may attach any conditions to that order the Tribunal considers appropriate. 6
The landlord did not seek name suppression.
Mr Kearney applied for name suppression; however he has been unsuccessful with the claim, and I consider the public interest in publication outweighs any interest the tenant might have in suppression.
Ms R did not support Mr Kearney’s claim; therefore, I consider her to be substantially successful in defending the application; therefore, name suppression is granted for Ms R. I have also suppressed the tenancy address as a potentially identifying detail for her.

Tenancy Tribunal case 5453751 — Rent arrears

At a glance

Claims & awards

Tenancy Tribunal case 5453751 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Unforeseen change in circumstances?

Severe hardship?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Order

Reasons

Unforeseen change in circumstances?

Severe hardship?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions