What was the outcome of Tenancy Tribunal case 5465939?

The tribunal order states: The tenancy of Carlos Borell at Unit/Flat 28, 181 Daniell Street, Newtown,

How much money was awarded in case 5465939?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5465939?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5465939?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13352624-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5465939?

The tribunal order states: The tenancy of Carlos Borell at Unit/Flat 28, 181 Daniell Street, Newtown,

How much money was awarded in case 5465939?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5465939?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5465939?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13352624-Tenancy_Tribunal_Order.pdf.

Unit/Flat 28, 181 Daniell Street, Newtown, Wellington 6021 Tenancy Tribunal Case 5465939 — 14-day notice

Order

The tenancy of Carlos Borell at Unit/Flat 28, 181 Daniell Street, Newtown, Wellington 6021 is terminated, and possession is granted to Te Toi Mahana, immediately.

Reasons

Ms Rees and Mr Ean-Schalkwyk, representing the landlord, attended the video conference hearing. At the start of the hearing, Ms Lotu Pohiva, a key support worker for the Downtown Community Mission, attended the hearing by video, saying she was there as the tenant’s support person. However, Ms Pohiva said she had tried looking for the tenant on the day of the hearing and the day before and could not find him, as she was there to assist the tenant in attending the hearing by video conference. Ms Pohiva then left the hearing before any evidence was heard. As the tenant was served, the hearing proceeded in his absence.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, namely an assault on another tenant in the same housing premises/facility.
The questions I have to consider are: a. Was there an assault? b. Should I use my discretion?

Was there an assault?

Section 55(1)c) of the Residential Tenancies Act 1986 (“RTA”) provides that the Tribunal shall terminate a tenancy where it is satisfied that the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, the landlord or any agent of the landlord, or any occupier of the same complex, or any neighbour. Evidence
The landlord called 4 witnesses during the hearing, as follows: a. Shane Mein – the victim of the assault. b. Marty Martin c. Mark Pailthrope d. Cleveland Ledsham.
Mr Mein lives in another flat in the same complex as this tenant. He said that, on 27 February 2026, he noticed something was missing from his house, that his door was shut but unlocked. He said he asked this tenant if he had taken anything from him, as this tenant had done this before. Mr Borell denied doing this. Then Mr Mein went to his door and asked him the same thing, which the tenant denied through the door.
On 28 February 2026 around 11am, Mr Mein said he went back to the tenant’s flat and knocked on the door again to ask if the tenant had taken anything. Mr Mein said he was adamant the tenant had taken his things. Mr Mein said he kept knocking on the tenant’s door, when the tenant came to the door and then punched Mr Mein in the stomach twice. Mr Mein said he turned away and then Mr Borell kicked him in the back with both feet. Mr Mein thought he must had had both hands on the rail. Mr Mein indicated this knocked him to the ground, the tenant said “Come on bro”, then Mr Mein got up and started walking back to his house. He explained that Mr Borell then came back with a broken broomstick, hit him on the back first, then on the left arm and left side of his head three times. Mr Mein said he called out for help, made it to his house, locked his door and then ran upstairs to see Mr Martin who was calling the police. Mr Martin told him to stay inside his place and the police then showed up about 5 minutes later.
Mr Mein said he did not have any physical injuries and was not in pain after the attack, but had the wind knocked out of him as he fell to the ground and that it was very painful at the time. Mr Mein confirmed he feels very scared and threatened and is worried about the tenant returning to his flat. He said he locks his door all the time now and is very worried about his safety.
Mr Pailthrope said he lives at the same complex and had noticed this tenant had taken to walking in and out of other tenant’s flats and taking things, including Mr Mein’s flat. He said he was in his kitchen when he heard loud voices and heard an argument between Mr Mein and Mr Borell. He reported he saw Mr Borell holding a broom handle and saw Mr Mein trying to move back from Mr Borell. He said he did not see Mr Borell actually strike Mr Mein. Mr Palethrope said he then saw Mr Martin move forward to try and bring Mr Mein back from striking distance of the tenant and then he called the police.
Mr Martin, who also lives in the same complex as the tenant, said he was in his flat when he heard Mr Mein calling out for help. He went out and said he saw Mr Borell grabbing Mr Mein on the shoulders, with Mr Mein on the ground and that Mr Borell would not let him up. He saw Mr Mein struggling to try and get up. Mr Martin told Mr Borell to release Mr Mein.
Mr Martin said he has had other dealings with Mr Borell, when he has tried to force his way into Mr Martin’s flat and another incident when Mr Martin woke up from a nap to see a man, whom he thought was Mr Borell, standing in his flat and then he said the man ran out when he confronted him.
Mr Ledsham, who also lives in the same complex as the tenant said Mr Mein had asked him to come with him when he went to see Mr Borell about taking his things. Mr Ledsham said Mr Mein knocked the first time on Mr Borell’s door, Mr Borell came out quickly and he did not see what happened then. The next time he saw Mr Mein knock on Mr Borell’s door, he saw Mr Borell push into Mr Mein. He said Mr Borell had come out quickly and they were struggling. Mr Ledsham said he then left the situation and went into the city.
The landlord said they spoke with the tenant, Mr Borell, and he denied punching or kicking Mr Mein and said he had only pushed him out of his flat.
The tenant did not attend the hearing or provide any evidence to support his position.
The landlord said the police had arrested Mr Borell for assaulting Mr Mein, that they were aware the matter was in Court on 23 March 2026 but they were unsure what had happened with the criminal case.
Notwithstanding whether the criminal case has been dealt with, the District Court has decided the Tenancy Tribunal should proceed to hear an application, even when the matter is pending in the District Court. See Clarke v Housing New Zealand Corporation (CIV-2008-006-000033).
The landlord said the assault has had a great impact on many other tenants, not just Mr Mein who was assaulted, as the other tenants now lock their doors and are fearful of their safety when this did not used to be the case before Mr Borell arrived. A few of the other tenants in their evidence had mentioned that the complex used to be a peaceful place to live where they felt safe before this incident.
I am persuaded by the evidence of Mr Mein and the other witnesses. The witnesses’ evidence given at the hearing corroborates the landlord’s claim to end the tenancy. The police have laid charges. There is no evidence from the tenant to counter the claim. As such, I find it more likely than not that the tenant assaulted Mr Mein.

Should I exercise my discretion?

Section 55(2) RTA provides that the Tribunal may refuse to make an order under subsection (1) if, but only if, it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies (but see also section 78A(3)(b). Section 78A is not relevant here.
The District Court in Haitana v Housing New Zealand Corporation considered a situation where a tenant had been convicted of an assault and the landlord subsequently applied for termination of the tenancy in the Tenancy Tribunal. The decision was appealed to the District Court. The judge said: “In essence,...the fact that a breach may not be capable of remedy, i.e. in the context of an assault which has been committed, is not determinative in the section 55(2) context. ...the preferable interpretation of section 55(2) is to put aside a breach which cannot be remedied and then consider the issue of termination by reference to the other two preconditions for the exercise of the discretion, i.e. compensation, if any, to the landlord and the likelihood or otherwise of any further similar breach by the tenant.” See CIV-2006-009-003335, DC Christchurch 2006 and CIV-2004-709-717 HC Christchurch 2004.
I am not exercising my discretion under section 55(2) RTA. I accept this is not a situation where the landlord can be compensated for loss. The tenant did not provide any evidence but the other tenants in the same complex gave evidence of this tenant’s unpredictability, and that they are all now locking their doors and fear for their safety from him.
I am not satisfied that it is unlikely that Mr Borell will commit any further breach of the same kind in the future.
The landlord has proven their claim under section 55(1)c) RTA and I decline to exercise my discretion to not terminate the tenancy under section 55(2) RTA. As such, the tenancy is terminated immediately.

Tenancy Tribunal case 5465939 — 14-day notice at Unit/Flat 28, 181 Daniell Street, Newtown, Wellington 6021

At a glance

Tenancy Tribunal case 5465939 — 14-day notice at Unit/Flat 28, 181 Daniell Street, Newtown, Wellington 6021

At a glance

Claims & awards

Order

Reasons

Was there an assault?

Should I exercise my discretion?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was there an assault?

Should I exercise my discretion?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions