What was Tenancy Tribunal case 5501009 about?

The tribunal order states: The Tribunal does not have jurisdiction to determine the application for possession.

How much money was awarded in case 5501009?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5501009?

The dispute type was not classified.

Where can I read the official tribunal order for case 5501009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13920719-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5501009 about?

The tribunal order states: The Tribunal does not have jurisdiction to determine the application for possession.

How much money was awarded in case 5501009?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5501009?

The dispute type was not classified.

Where can I read the official tribunal order for case 5501009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13920719-Tenancy_Tribunal_Order.pdf.

26 Western Road, Ngongotaha, Rotorua 3010 Tenancy Tribunal Case 5501009 — Tenancy dispute

Order

The Tribunal does not have jurisdiction to determine the application for possession.
Pursuant to s 83(1) of the Residential Tenancies Act 1986, the proceeding is transferred to the District Court at Rotorua (civil jurisdiction).

Reasons

The Applicants seek possession of the premises under s 65 of the Residential Tenancies Act 1986 (the RTA).
The Respondents entered into possession under an agreement for sale and purchase dated 15 November 2010. Their occupation was not a separate residential tenancy. It was part of the sale and purchase arrangement.
An earlier possession order was quashed on appeal. The District Court found that the settlement notice then relied upon did not comply with s 29 of the Property Law Act 2007 (the PLA). The agreement therefore remained on foot and Mr Hewitt continued to have a lawful right of occupation. 1
The present application relies on a later notice dated 2 March 2026. The Applicants say that the notice complied with ss 28 and 29 of the PLA, the breach was not remedied, the agreement was subsequently cancelled, and the Respondents no longer have any lawful right to remain. 1 Hewitt v Martin [2026] NZDC 8856 at [28] - [31].
The present issue is not whether the 2 March 2026 notice was valid. It is whether the Tribunal has jurisdiction to determine the validity and effect of that notice and to make the possession order by which cancellation is to be effected. Relevant Law
Section 5(1)(o) of the RTA provides that the Act does not apply where the tenant is the purchaser of the premises under an agreement for sale and purchase with the landlord as vendor, unless the agreement is revocable at will by the vendor.
Section 65(1) requires the Tribunal to make a possession order where: a. the applicant is entitled to possession of residential premises; and b. the occupier is a squatter or trespasser, or is otherwise occupying without a lawful right granted by a person having authority to grant that right.
Section 65(3) makes clear that the Tribunal may exercise that jurisdiction even though the premises are not subject to a tenancy agreement.
Where a purchaser has entered into possession and the vendor seeks to cancel for the purchaser’s breach, s 28 of the PLA applies. The vendor may cancel only after serving a notice complying with s 29 and the breach remains unremedied at the expiry of the notice.
Even then, the agreement is not cancelled merely because the notice expires or because the vendor sends a letter purporting to cancel it. Section 28(4) permits cancellation in only two ways: a. by obtaining from a court an order for possession, in which case cancellation occurs when the order is made or at a later time specified in it; or b. by peaceable re-entry.
Section 33 permits the purchaser to apply to a court for relief against cancellation. That application may be made in the proceeding brought by the vendor for possession.
Section 78 describes the orders the Tribunal may make in a claim already within its jurisdiction. Section 78(1)(h) includes an order that the High Court or District Court may make under an enactment or rule of law relating to contracts.
Section 85 governs the manner in which existing jurisdiction is exercised. It does not confer jurisdiction where none otherwise exists, however.
Section 83 permits the Tribunal to transfer a proceeding to the District Court where the Tribunal has no jurisdiction, or where the proceeding would be more properly determined there.
In Harding v Schellevis, 2 the High Court said that “the purpose and policy of the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions.” 3 That principle is important, but it does not permit the Tribunal to disregard an express exclusion or exercise a jurisdiction allocated by another Act to a court.
In Goer v Collier, 4 the occupier had a rent-free right to live in estate property. The High Court considered that the right had been terminated by notice and held: 5 The property involved is residential therefore the Tribunal has jurisdiction to grant a possession order and ancillary orders including payment orders up to the statutory monetary limit.
That decision confirms the breadth of s 65. It also concerned a right of occupation that could be, and had been, ended without obtaining a court order under a separate statutory cancellation regime. 6
In Xu v Meng [2021], 7 to which counsel for the Respondent helpfully referred the Tribunal, the High Court considered the distinction between residential tenants subject to the RTA and purchasers in possession under an agreement for sale and purchase. In addressing s 5(1)(o), the Court said: 8 That is no doubt a recognition of the fact that a different legal regime applies, namely ss 28 and 29 of the Property Law Act 2007 where a purchaser is in possession.
The Court also said that a purchaser in possession “is in a different legal relationship with the owner of the property (than a tenant) and is subject to a different legal regime.” 9
The agreement in Xu v Meng had ended through failure of a finance condition, rather than cancellation for breach. The Court held that ss 28 and 29 did not apply for that reason. 10 The decision does not directly determine the present issue, but its recognition of the separate statutory regimes is relevant. 2 Harding v Schellevis [2021] NZHC 1265. 3 Ibid. at 37. 4 Goer v Collier [2018] NZHC 1624. 5 Ibid. at [22]. 6 Ibid. at [21]-[25]. 7 Xu v Meng [2021] NZHC 1936. 8 Ibid. at [34]. 9 Ibid. at [34]-[35]. 10 Ibid. at [40]-[43]. Application
I accept the Applicants’ starting point that s 65 is not confined to disputes arising from tenancy agreements. Section 65(3) says so expressly. Goer v Collier confirms that the Tribunal may make a possession order against a person whose non-tenancy right of occupation has ended.
I also accept that s 5(1)(o) does not necessarily prevent the Tribunal from ever exercising jurisdiction under s 65 in relation to a former purchaser in possession. Where an agreement has already ended through the failure of a condition, mutual cancellation, a court order, peaceable re-entry, or some other legally effective event, the former purchaser may thereafter be occupying without any lawful right.
The Applicants rely on cancellation for breach while the purchasers remain in possession. Under s 28 of the PLA, cancellation may occur only by peaceable re- entry or by obtaining an order for possession from a court.
There has been no peaceable re-entry. A possession order of the Tribunal would therefore effect cancellation. It would not merely recognise a cancellation that had already occurred. Until such an order is made, the agreement and the Respondents’ right of occupation remain on foot.
The Applicants submit that the validity and effect of the notice go to the merits rather than jurisdiction. However, the Tribunal would not simply be deciding an incidental question under s 65. It would be exercising the statutory power by which cancellation occurs under s 28(4).
I am not satisfied that the Tenancy Tribunal is a “court” for the purposes of ss 28 and 33 of the PLA. The RTA itself distinguishes between the Tribunal and a “court or other body” in s 82. Section 83 then provides for proceedings to be transferred from the Tribunal to the District Court. That language is inconsistent with treating the Tribunal as a court whenever another enactment assigns a function to a court.
Section 77(4) provides a strong indication that the Tribunal is not a “court” for the purposes of the PLA. It expressly confers on the Tribunal, and only in respect of tenancy agreements, the powers conferred on a court by s 264 of the PLA. 11 No equivalent provision confers the powers of a court under ss 28-33 of the PLA. Had the Tribunal already been a court for those purposes, the express and limited conferral in s 77(4) would have been unnecessary. 11 Section 77(4) expressly gives the Tribunal, in respect of tenancy agreements, the powers conferred on a court by s 264 of the PLA, concerning relief against a landlord’s refusal to renew a tenancy agreement or sell the landlord’s interest in the premises to the tenant. It does not confer the separate powers assigned to a court under ss 28-33 PLA, where a vendor seeks to cancel an agreement for sale and purchase after the purchaser has entered into possession.
Section 78(1)(h) does not alter that conclusion. It identifies orders the Tribunal may make in a claim already within its jurisdiction. It does not independently confer jurisdiction to determine a sale and purchase agreement cancellation under the PLA or deem the Tribunal to be a court under s 28. Nor does s 85 assist. The requirement to determine disputes according to their substantial merits and justice is subject to the provisions of the RTA. It cannot enlarge the Tribunal’s jurisdiction.
The integrated nature of the PLA procedure is also important. The court hearing the vendor’s possession application may need to determine, for example, whether the notice was valid, whether the breach was remedied, whether cancellation should take effect, and whether relief should be granted under s 33. Those are not merely incidental contractual questions. They may involve disputed contractual claims and require accounting evidence. The District Court, exercising its ordinary civil jurisdiction, is better placed to determine those matters through pleadings and the usual rules of civil procedure and evidence.
The Applicants submit that Xu v Meng is distinguishable because it did not determine the interaction between ss 5(1)(o) and 65 of the RTA. That distinction does not assist the Applicants. In Xu v Meng, the agreement had already ended through failure of a condition and the Court expressly found that ss 28 and 29 did not apply.
However, as I have considered above, the Tribunal does not have jurisdiction to hear and determine issues arising under s 28 and 29 PLA.
Goer v Collier does not decide this issue either. In that case the occupier’s right under a will had been terminated by notice. There was no statutory requirement that cancellation occur only through an order made by a court.
I have also considered the earlier District Court appeal carefully. His Honour Judge Bergseng held that the Martins: 12 "can only cancel the SAP if the breach is not remedied within the specified period and must do so by the obtaining of the possession order, as was sought before the Tenancy Tribunal."
The Court then found: 13 "Given that there remained on foot a valid SAP, Mr Hewitt had a lawful right of occupation. On that basis, the Tribunal did not have jurisdiction pursuant to s 65 of the RTA to issue an order for possession." 12 Hewitt v Martin [2026] NZDC 8856 at [25]. 13 Ibid. at [30]
I do not read those passages as deciding that the Tribunal is a "court" under s 28(4), or that it may exercise the purchaser-relief jurisdiction under s 33. That issue was not before the District Court. The appeal was determined on the invalidity of the 3 October 2023 notice. The Court also expressly declined to address later notices. 14
Even if the District Court's reasoning could be read as assuming that a valid notice might permit a further application to the Tribunal, the identity of the body empowered to make the operative order under s 28 was not argued or determined, and I do not consider the judgment prevents the present jurisdictional question from being decided now that it has been squarely raised.
The conclusion is therefore a confined one. Section 65 remains available where a person’s tenancy, licence, contractual right, or other right of residential occupation has already ended. It does not authorise the Tribunal to exercise a separate statutory jurisdiction under which the possession order itself cancels an extant agreement for sale and purchase.
I make no finding about whether the 2 March 2026 notice complies with s 29, whether the amount demanded was correct, whether the vendors were ready and willing to settle, or whether the Respondents are entitled to relief against cancellation. Those matters are for the court with jurisdiction to determine the PLA possession proceeding. Transfer to the District Court
Having found that the Tribunal lacks jurisdiction, I must decide whether to dismiss or transfer the proceeding.
Under s 83(1), the Tribunal may transfer a proceeding it has no jurisdiction to determine to the District Court in its ordinary civil jurisdiction. A transferred proceeding is then treated as having been commenced there.
Transfer is appropriate. The dispute concerns possession under an agreement for sale and purchase and the statutory process in ss 28–33 of the PLA. Those issues arise from the same agreement and factual history and should be determined together. 14 Ibid. at [32].
Transfer preserves the proceeding and places it before a court able to determine the validity of the notice, the right to possession, and any claim for relief against cancellation.

Reasons

The Applicants seek possession of the premises under s 65 of the Residential Tenancies Act 1986 (the RTA).

The Respondents entered into possession under an agreement for sale and purchase dated 15 November 2010. Their occupation was not a separate residential tenancy. It was part of the sale and purchase arrangement.

An earlier possession order was quashed on appeal. The District Court found that the settlement notice then relied upon did not comply with s 29 of the Property Law Act 2007 (the PLA). The agreement therefore remained on foot and Mr Hewitt continued to have a lawful right of occupation. 1

The present application relies on a later notice dated 2 March 2026. The Applicants say that the notice complied with ss 28 and 29 of the PLA, the breach was not remedied, the agreement was subsequently cancelled, and the Respondents no longer have any lawful right to remain. 1 Hewitt v Martin [2026] NZDC 8856 at [28] - [31].

The present issue is not whether the 2 March 2026 notice was valid. It is whether the Tribunal has jurisdiction to determine the validity and effect of that notice and to make the possession order by which cancellation is to be effected. Relevant Law

Section 5(1)(o) of the RTA provides that the Act does not apply where the tenant is the purchaser of the premises under an agreement for sale and purchase with the landlord as vendor, unless the agreement is revocable at will by the vendor.

Section 65(1) requires the Tribunal to make a possession order where: a. the applicant is entitled to possession of residential premises; and b. the occupier is a squatter or trespasser, or is otherwise occupying without a lawful right granted by a person having authority to grant that right.

Section 65(3) makes clear that the Tribunal may exercise that jurisdiction even though the premises are not subject to a tenancy agreement.

Where a purchaser has entered into possession and the vendor seeks to cancel for the purchaser’s breach, s 28 of the PLA applies. The vendor may cancel only after serving a notice complying with s 29 and the breach remains unremedied at the expiry of the notice.

Even then, the agreement is not cancelled merely because the notice expires or because the vendor sends a letter purporting to cancel it. Section 28(4) permits cancellation in only two ways: a. by obtaining from a court an order for possession, in which case cancellation occurs when the order is made or at a later time specified in it; or b. by peaceable re-entry.

Section 33 permits the purchaser to apply to a court for relief against cancellation. That application may be made in the proceeding brought by the vendor for possession.

Section 78 describes the orders the Tribunal may make in a claim already within its jurisdiction. Section 78(1)(h) includes an order that the High Court or District Court may make under an enactment or rule of law relating to contracts.

Section 85 governs the manner in which existing jurisdiction is exercised. It does not confer jurisdiction where none otherwise exists, however.

Section 83 permits the Tribunal to transfer a proceeding to the District Court where the Tribunal has no jurisdiction, or where the proceeding would be more properly determined there.

In Harding v Schellevis, 2 the High Court said that “the purpose and policy of the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions.” 3 That principle is important, but it does not permit the Tribunal to disregard an express exclusion or exercise a jurisdiction allocated by another Act to a court.

In Goer v Collier, 4 the occupier had a rent-free right to live in estate property. The High Court considered that the right had been terminated by notice and held: 5 The property involved is residential therefore the Tribunal has jurisdiction to grant a possession order and ancillary orders including payment orders up to the statutory monetary limit.

That decision confirms the breadth of s 65. It also concerned a right of occupation that could be, and had been, ended without obtaining a court order under a separate statutory cancellation regime. 6

In Xu v Meng [2021], 7 to which counsel for the Respondent helpfully referred the Tribunal, the High Court considered the distinction between residential tenants subject to the RTA and purchasers in possession under an agreement for sale and purchase. In addressing s 5(1)(o), the Court said: 8 That is no doubt a recognition of the fact that a different legal regime applies, namely ss 28 and 29 of the Property Law Act 2007 where a purchaser is in possession.

The Court also said that a purchaser in possession “is in a different legal relationship with the owner of the property (than a tenant) and is subject to a different legal regime.” 9

The agreement in Xu v Meng had ended through failure of a finance condition, rather than cancellation for breach. The Court held that ss 28 and 29 did not apply for that reason. 10 The decision does not directly determine the present issue, but its recognition of the separate statutory regimes is relevant. 2 Harding v Schellevis [2021] NZHC 1265. 3 Ibid. at 37. 4 Goer v Collier [2018] NZHC 1624. 5 Ibid. at [22]. 6 Ibid. at [21]-[25]. 7 Xu v Meng [2021] NZHC 1936. 8 Ibid. at [34]. 9 Ibid. at [34]-[35]. 10 Ibid. at [40]-[43]. Application

I accept the Applicants’ starting point that s 65 is not confined to disputes arising from tenancy agreements. Section 65(3) says so expressly. Goer v Collier confirms that the Tribunal may make a possession order against a person whose non-tenancy right of occupation has ended.

I also accept that s 5(1)(o) does not necessarily prevent the Tribunal from ever exercising jurisdiction under s 65 in relation to a former purchaser in possession. Where an agreement has already ended through the failure of a condition, mutual cancellation, a court order, peaceable re-entry, or some other legally effective event, the former purchaser may thereafter be occupying without any lawful right.

The Applicants rely on cancellation for breach while the purchasers remain in possession. Under s 28 of the PLA, cancellation may occur only by peaceable re- entry or by obtaining an order for possession from a court.

There has been no peaceable re-entry. A possession order of the Tribunal would therefore effect cancellation. It would not merely recognise a cancellation that had already occurred. Until such an order is made, the agreement and the Respondents’ right of occupation remain on foot.

The Applicants submit that the validity and effect of the notice go to the merits rather than jurisdiction. However, the Tribunal would not simply be deciding an incidental question under s 65. It would be exercising the statutory power by which cancellation occurs under s 28(4).

I am not satisfied that the Tenancy Tribunal is a “court” for the purposes of ss 28 and 33 of the PLA. The RTA itself distinguishes between the Tribunal and a “court or other body” in s 82. Section 83 then provides for proceedings to be transferred from the Tribunal to the District Court. That language is inconsistent with treating the Tribunal as a court whenever another enactment assigns a function to a court.

Section 77(4) provides a strong indication that the Tribunal is not a “court” for the purposes of the PLA. It expressly confers on the Tribunal, and only in respect of tenancy agreements, the powers conferred on a court by s 264 of the PLA. 11 No equivalent provision confers the powers of a court under ss 28-33 of the PLA. Had the Tribunal already been a court for those purposes, the express and limited conferral in s 77(4) would have been unnecessary. 11 Section 77(4) expressly gives the Tribunal, in respect of tenancy agreements, the powers conferred on a court by s 264 of the PLA, concerning relief against a landlord’s refusal to renew a tenancy agreement or sell the landlord’s interest in the premises to the tenant. It does not confer the separate powers assigned to a court under ss 28-33 PLA, where a vendor seeks to cancel an agreement for sale and purchase after the purchaser has entered into possession.

Section 78(1)(h) does not alter that conclusion. It identifies orders the Tribunal may make in a claim already within its jurisdiction. It does not independently confer jurisdiction to determine a sale and purchase agreement cancellation under the PLA or deem the Tribunal to be a court under s 28. Nor does s 85 assist. The requirement to determine disputes according to their substantial merits and justice is subject to the provisions of the RTA. It cannot enlarge the Tribunal’s jurisdiction.

The integrated nature of the PLA procedure is also important. The court hearing the vendor’s possession application may need to determine, for example, whether the notice was valid, whether the breach was remedied, whether cancellation should take effect, and whether relief should be granted under s 33. Those are not merely incidental contractual questions. They may involve disputed contractual claims and require accounting evidence. The District Court, exercising its ordinary civil jurisdiction, is better placed to determine those matters through pleadings and the usual rules of civil procedure and evidence.

The Applicants submit that Xu v Meng is distinguishable because it did not determine the interaction between ss 5(1)(o) and 65 of the RTA. That distinction does not assist the Applicants. In Xu v Meng, the agreement had already ended through failure of a condition and the Court expressly found that ss 28 and 29 did not apply.

However, as I have considered above, the Tribunal does not have jurisdiction to hear and determine issues arising under s 28 and 29 PLA.

Goer v Collier does not decide this issue either. In that case the occupier’s right under a will had been terminated by notice. There was no statutory requirement that cancellation occur only through an order made by a court.

I have also considered the earlier District Court appeal carefully. His Honour Judge Bergseng held that the Martins: 12 "can only cancel the SAP if the breach is not remedied within the specified period and must do so by the obtaining of the possession order, as was sought before the Tenancy Tribunal."

The Court then found: 13 "Given that there remained on foot a valid SAP, Mr Hewitt had a lawful right of occupation. On that basis, the Tribunal did not have jurisdiction pursuant to s 65 of the RTA to issue an order for possession." 12 Hewitt v Martin [2026] NZDC 8856 at [25]. 13 Ibid. at [30]

I do not read those passages as deciding that the Tribunal is a "court" under s 28(4), or that it may exercise the purchaser-relief jurisdiction under s 33. That issue was not before the District Court. The appeal was determined on the invalidity of the 3 October 2023 notice. The Court also expressly declined to address later notices. 14

Even if the District Court's reasoning could be read as assuming that a valid notice might permit a further application to the Tribunal, the identity of the body empowered to make the operative order under s 28 was not argued or determined, and I do not consider the judgment prevents the present jurisdictional question from being decided now that it has been squarely raised.

The conclusion is therefore a confined one. Section 65 remains available where a person’s tenancy, licence, contractual right, or other right of residential occupation has already ended. It does not authorise the Tribunal to exercise a separate statutory jurisdiction under which the possession order itself cancels an extant agreement for sale and purchase.

I make no finding about whether the 2 March 2026 notice complies with s 29, whether the amount demanded was correct, whether the vendors were ready and willing to settle, or whether the Respondents are entitled to relief against cancellation. Those matters are for the court with jurisdiction to determine the PLA possession proceeding. Transfer to the District Court

Having found that the Tribunal lacks jurisdiction, I must decide whether to dismiss or transfer the proceeding.

Under s 83(1), the Tribunal may transfer a proceeding it has no jurisdiction to determine to the District Court in its ordinary civil jurisdiction. A transferred proceeding is then treated as having been commenced there.

Transfer is appropriate. The dispute concerns possession under an agreement for sale and purchase and the statutory process in ss 28–33 of the PLA. Those issues arise from the same agreement and factual history and should be determined together. 14 Ibid. at [32].

Transfer preserves the proceeding and places it before a court able to determine the validity of the notice, the right to possession, and any claim for relief against cancellation.

Tenancy Tribunal case 5501009 — Tenancy dispute at 26 Western Road, Ngongotaha, Rotorua 3010

At a glance

Claims & awards

Tenancy Tribunal case 5501009 — Tenancy dispute at 26 Western Road, Ngongotaha, Rotorua 3010

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions