Published tribunal order
Tenancy Tribunal case 5469551 — Tenancy dispute at 39 Headland Drive, Long Bay, Auckland 0630
Decided 22 Jun 2026 · Published 22 Jun 2026 · Application 5469551
Party names are redacted in the official published order.
Order
(As amended on 20 June 2026 following Order of the Tribunal of the same date)
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name.
- The term of the fixed-term tenancy of [The tenant/s] at 39 Headland Drive, Long Bay, Auckland 0630 is reduced and now ends at 11:59pm on 24 March 2026.
- The landlord must pay the tenant $4,628.00 $4,115.71 immediately, calculated as shown in the table below:
- 05.2026 $8,600.00 $6,405.71 Filing fee reimbursement $28.00 Total award$4,000.00 $2,318.00 $8,628.00 $6,433.71 Net award $4,628.00 $4,115.71 Total payable by Landlord to Tenant $4,628.00 $4,115.71
- The bond is to remain with the Bond Centre.
- If the tenant wishes for the bond to be returned to them, they must advise the Tribunal of this no later than 08 May 2026.
- If the landlord wishes for the bond or some of it to be paid to them, they must lodge a claim with the Tribunal and pay the applicable fee.
Reasons
- The first hearing for this matter took place on 10 April 2026. The second hearing took place on 30 April 2026. Mr [name] attended the hearings for the tenant and Mr Bao attended the hearings for the landlord. An interpreter attended both hearings.
- The tenant seeks an Order from the Tribunal that the term of the fixed term tenancy be reduced. Relevant legal considerations:
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means the party bringing the application must establish that what they are claiming is more likely than not. This 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 (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.
- I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
Should the term of the fixed term tenancy be reduced?
- The tenant has applied for the term of the fixed-term tenancy due to end on 10 July 2026 to be reduced to 24 March 2026.
- Section 66(1) of the Residential Tenancies Act (RTA) provides that the Tribunal may 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.
- There has been an unforeseen change in the tenant's circumstances. The tenant’s father / father in law became unwell in China and the tenant has returned to China to provide care for their father / father in law. The tenant has provided medical evidence to support their claim.
- The tenant would suffer severe hardship if the term of the tenancy were not reduced in the form of having to pay rent for a premises they were no longer residing in.
- The landlord would suffer hardship if the term is reduced. The landlord said the premises has a mortgage and they rely on the rent to pay the mortgage.
- I find that by a slim margin the tenant’s hardship would be greater than the landlord’s hardship.
- I grant the tenant’s application to reduce the term of the tenancy to 24 March 2026. Should the landlord be awarded compensation under section 66(2) of the RTA?
- Section 66(2) of the RTA provides that where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss.
- The landlord’s loss is lost rent. This is the rent from 25 March 2026 (the day after the tenancy terminated) until 01 May 2026 (the day before the new tenancy starts), which is $6,405.71.
- However, I do not consider $6,405.71to be a fair representation of the landlord’s loss because the new tenancy is for an additional $50 per week. That means that during the period 02 May 2026 (the start of the new tenancy) until 10 July 2026 (the date the fixed term tenancy was due to end), the landlord will receive an additional $500.00 in rent that the landlord would not have received had the tenancy continued to the end date.
- Therefore, the landlord’s loss in rent is $5,905.71.
- It is also necessary to consider costs associated with the tenancy ending early. The tenant has paid $345.00 in advertising fees and has been invoiced for $1,357.00 by the letting agent for costs to find the new tenant. This means the expenses to find the new tenant have been $1,682.00.
- The tenancy has ended around 8 months into the 12-month fixed term tenancy. If the tenancy had ended on the end date of 10 July 2026, the landlord would have incurred costs with reletting. The landlord disagreed with this point saying they would have had more time to find a new tenant and he could have done some of the work himself. I do not accept this. I think it is more likely than not that the landlord would have engaged an agent.
- I find the costs attributable to the tenant ending the lease early to be $560.66. (The tenancy ended around 8 months into the 12-month fixed term. $1682.00 / 12 x 8 = $560.66).
- I find that the landlord’s total loss is $6,466.37 is calculated as follows: Lost rent from 25.03.2026 to 01.05.2026: $6,405.71 Less additional rent gained from 02.05.2026 to 10.07.2026$500.00 Subtotal: $5,905.71 Plus the additional costs due to lease ending early: $560.66 Total loss: $6,466.37
- In these circumstances, I consider it is fair to award the landlord $4,000.00 as compensation under section 66(2) of the RTA. However, this award should include the costs associated with finding a new tenant.
- The agent has invoiced the tenant directly for the lease break costs. The agent is not a party to these proceedings. I cannot make any findings in relation to these charges including whether or not they are reasonable. However, the tenant has provided evidence showing that the $345.00 for advertising costs has been paid and that he has been invoiced directly by the agent. For this reason, I deduct the sum of $1,682.00 from the $4,000.00 and award $2,318.00 as compensation under section 66(2) of the RTA.
- The tenant has paid rent up to and including 01 May 2026. As the tenancy has been reduced to 24 March 2026, the tenant has overpaid rent by $8,600.00 $6,405.71. Allowing for the sum the tenant owes the landlord, $2,318.00 the landlord has been ordered to pay the tenant: $6,282.00 $4,087.71, calculated as follows: Amount of proposed compensation under section 66(2): $4,000.00 Less the sum the tenant has paid / been charged for as reletting costs: $1,682.00 Award under section 66(2) of the RTA: $2,318.00 Less rent paid to the landlord for the period 25.03.2026 to 01.05.2026: $8,600.00 $6,405.71 Landlord is to pay the tenant: $6,282.00 $4,087.71 Other matters: The request to assign the tenancy:
- On 16 March 2026, the tenant sent an email to the landlord asking if they would consider an assignment of the tenancy on its current terms including the current rent and the end date of 10 July 2026.
- The landlord replied saying that they would be seeking a new tenancy with a new tenant rather than an assignment.
- Section 43B of the RTA provides that: A tenant may, at any time during the tenancy, assign the tenancy— (a) with the prior written consent of the landlord; and (b) in accordance with any reasonable conditions attached to that consent by the landlord. .... (4) If a tenant makes a written request for the landlord’s consent to an assignment and the request identifies, and includes contact details for, the proposed assignee, the landlord must respond in writing to the request within a reasonable period of time. (5) A landlord who, without reasonable excuse, fails to comply with subsection (4) commits an unlawful act. (6) The landlord must not— (a) withhold consent unreasonably; or (b) attach any unreasonable conditions to the consent.
- The tenant’s email of 16 March 2026 cannot be said to be a written request for the landlord’s consent in accordance with section 43B(4) above because it did not identify the proposed assignee and the provide the assignee’s contact details.
- The RTA does not oblige the landlord to advise the tenant of his rights to request an assignment under section 43(B) of the RTA. The landlord failed to engage with the tenant’s suggestion of an assignment. However, this does not amount to a breach of section 43B or give rise to a claim under the RTA. Other matters – mitigation of loss:
- The tenant says that the landlord failed to mitigate its losses because the landlord initially advertised the premises at $100 per week more than the rent the tenant was paying. This was reduced on or about 19 March 2026 to an additional $70.00 more per week than the tenant was paying.
- The landlord says that if the tenancy had continued past the end date, the rent would have been increased.
- Section 49 of the RTA provides: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
- Section 61 of the RTA deals with abandonment of the premises. Abandonment occurs when a tenant leaves the premises without reasonable excuse, not intending to return or to meet their obligations, and fails to notify the landlord.. Section 61(1) of the RTA provides that: On the application of the landlord, the Tribunal may make an order terminating a tenancy where it is satisfied that the tenant has abandoned the premises and the rent is in arrear.
- Section 61(3) of the RTA provides that where a tenant in a fixed term tenancy abandons the premises, the tenant is liable for rent up to: (i) the date of the expiry of the term; or (ii) the date of commencement of a new tenancy of the premises,— whichever is the earlier.
- Section 61(4) of the RTA provides: Nothing in section 49 shall impose upon the landlord any obligation, on finding that the tenant has abandoned the premises, to make an application under this section or to grant a new tenancy of the premises.
- I find that the tenant has not abandoned the premises: The tenant did not fail to notify the landlord that they were leaving the premises. Nor did the tenant fail to comply with their obligations. They continued to pay rent as it fell due.
- Therefore, the landlord was obliged to mitigate its losses. In this case, the landlord has required the tenant to advertise the premises (via an agency). Had the tenant refused to do so and the landlord not taken steps to mitigate its losses, and this resulted in the premises being vacant for an extended period of time, then I may have considered there was a failure to mitigate.
- The tenant told the landlord of their intention to end the tenancy on 12 March 2026. On or about 09 April 2026, 4 weeks later, the landlord entered into a new tenancy agreement with a new tenant to start on 02 May 2026. I consider 4 weeks to be a reasonable period of time to find a new tenant. I also consider it reasonable that the tenancy commenced just over 3 weeks after the new tenancy agreement was signed.
- In terms of the advertised rental price, Tenancy Services Market Rent tool 1 does not have data for 5-bedroom properties. The tool provides that the upper quartile for market rate for a 4-bedroom property in Long Bay is $950.00 per week. Publicly available information shows that the premises is a new looking 5 bedroom, 3 bathroom house. I take judicial notice that 4-bedroom houses in Auckland usually have 2 bathrooms. Therefore, not only does the premises have an additional bedroom it also has an additional bathroom. On this basis, I do not consider that the advertised rent of $1,280.00 per week was above market rent. I consider it was reasonable for the landlord to initially advertise the premises at $1,280.00 per week, reducing to $1,250 per week around one week later and finally agreeing to accept $1,230.00 per week.
- I do not consider that the landlord failed to mitigate its losses. Other matters: The bond.
- The bond remains with the Bond Centre. Neither party has applied for a refund of the bond.
- If the tenant wishes for the bond to be refunded to them, then by 08 May 2026 they must notify the Tribunal of this. This should be done by referring to this application number and emailing the Tribunal at remote.tenancy@justice.govt.nz, copying the landlord.
- If landlord wishes for the bond or any part of it to be paid to them then the landlord will need to lodge a claim against the tenant and pay the applicable fee. Filing fee and suppression:
- The tenant has been substantially successful with their claim. For this reason, I grant the tenant’s application for suppression and order reimbursement of the filing fee. 1 https://www.tenancy.govt.nz/rent-bond-and-bills/market- rent/?location=long+bay&period=37&action_doSearchValues=Find+Rent