What was the outcome of Tenancy Tribunal case 4480145?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4480145?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $7,707.14 awarded to landlord

What type of tenancy dispute was case 4480145?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4480145?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9447070-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4480145?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4480145?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $7,707.14 awarded to landlord

What type of tenancy dispute was case 4480145?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4480145?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9447070-Tenancy_Tribunal_Order.pdf.

25 Gunn Way, Hobsonville, Auckland 0616 Tenancy Tribunal Case 4480145 — Rent arrears

Claims and awards in Tenancy Tribunal application 4480145 — net $4,407.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$7,707.14	Rent arrears
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,407.58
Total payable by Tenant to Landlord	$4,407.58

Claims and awards in Tenancy Tribunal application 4480145 — net $4,407.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$7,707.14	Rent arrears
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,407.58
Total payable by Tenant to Landlord	$4,407.58

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The Bond Centre is to pay the bond of $3,320.00 (6455322-001) to Lisa Willis For Northern Rental Management Ltd t/a Corporate Property Rentals Acting Agent For Bezar Family Trust immediately
Jagadish Jaishanker Thaker and Loren Bernardine Hannah Rutherford must pay Lisa Willis For Northern Rental Management Ltd t/a Corporate Property Rentals Acting Agent For Bezar Family Trust $4,407.58 immediately, calculated as shown in the table below. DescriptionLandlord Rent arrears$7,707.14 Filing fee reimbursement$20.44 Total award$7,727.58 Bond$3,320.00 Total payable by Tenant to Landlord$4,407.58

Reasons

Ms Willis and Mr Wright appeared as the agent for the landlord.
The tenants, Ms Rutherford and Dr Thacker, appeared via phone from Australia, where they currently reside. Ms Rutherford was the main speaker at the hearing.
On 17 January 2023, the tenants applied to the Tribunal for a full refund of the bond amounting to $3,320. However, on 22 February 2023, Ms Willis filed a cross-application with the Tribunal disputing the reason for the bond refund.
The hearing was scheduled for 28 February 2023, but it was adjourned for the following reasons: a. Ms Hetherington, the landlord's key witness, was not present during the hearing; b. The landlord's cross-application was not served on the tenant; and c. The presiding Adjudicator did not have the cross-application before her.
Ms Hetherington was an important witness as she was the property manager who processed the tenants' application for tenancy and negotiated with them on behalf of the landlord.
Not long after the tenants took possession of the property, Ms Hetherington informed the tenants in writing that she had sold her business and the new property manager would be Ms Willis from 3 October 2022.
At the start of the hearing, Mr Wright informed me that Ms Hetherington was not present as she was on an overseas trip. I raised concern with Mr Wright regarding the tenants' entitlement to cross-examine Ms Hetherington's evidence.
However, the tenants told me they had already replied to Ms Hetherington's statement and did not have further questions for her. Therefore, they did not require Ms Hetherington for cross-examination. The tenants were happy for the hearing to continue.
The hearing then proceeded without the landlord needing to call Ms Hetherington. Ms Hetherington’s statement was admitted into evidence by consent.
Unless otherwise stated, this decision uses Ms Rutherford, Dr Thaker, and the tenants interchangeably. The term “tenants” refers to Ms Rutherford and Dr Thaker.
The issue in dispute was whether there was a verbal agreement between the tenants and Ms Hetherington (who was at the material time the agent for the landlord) that the tenants would be permitted to break the 12-month fixed-term tenancy if they were by an “outside chance” offered employment in Australia and had to move there by the end of 2022."
The landlord disputed the claim that the 12-month fixed-term tenancy agreement was conditional on the tenants moving to Australia. Is the fixed-term tenancy for 12 months conditional on the tenants moving to

Australia by an outside chance?

It is undisputed that the 12-month fixed-term tenancy began on 4 July 2022.
The landlord re-let the premises on 3 February 2023, after Ms Rutherford and Dr Thaker had vacated the property on 29 November 2022
It should be noted that when the tenants submitted their application for the tenancy, they made their future movements clear. They said: “... I put 6-months (sic) as the time given there is an outside chance we may have to relocate to Australia at the end of the year and want to be completely transparent. If this small chance does not happen, then we would happily extend.”
Despite the tenants’ preference for a 6-month tenancy, the tenants signed a fixed-term tenancy on 2 July 2022, which would last 12 months, starting on 4 July 2022 and ending on 3 July 2023.
On 3 July 2022, the tenancy agreement was counter-signed by Ms Hetherington, on behalf of the landlord.
On 3 October 2022, the tenants informed Ms Hetherington, amongst other things, acknowledging the change of the property manager, that a rent payment had gone to the old account and reminded Ms Hetherington of what they spoke about before signing the 12-month fixed-term tenancy. The relevant passage in the email of 3 October 2022 stated: “[Ms] Vicki [Hethrington], right when we rented the property I let you know there was a small chance we would be going to Australia. JT was successful in his application... and so we will be leaving before the end of the year. I don’t have a date yet, but please can you ensure that the new people understand that this possibility was communicated from the outset? As soon as we know our dates I will put in our notice. I expect we will move at the end of November.”
On 3 October 2022, Ms Hetherington forwarded Ms Rutherford’s email to Ms Willis, the new property manager.
On 5 October 2022, Ms Willis contacted Ms Rutherford via email and said: “HI Loren, Nice to meet you too. Yes, this payment has come across to us. Many thanks.”
Ms Rutherford informed Ms Willis via email on 3 October 2022 that she would be vacating the premises.
Throughout October 2022, the parties discussed the possibility of the neighbour from the nearby property moving into the tenants’ house. However, this did not materialise as the neighbour did not consider Ms Rutherford’s house suitable for them. On 31 October 2022, the tenants again informed Ms Willis that they would vacate the premises on 29th November 2022.
Ms Rutherford gave notice to vacate to Ms Willis on 2 November 2022. On the same day, Ms Willis informed the tenants via email: “You do understand that by breaking your fixed term you are liable to cover the rent uptilt a replacement tenant is found?”
Ms Willis acknowledged the receipt of Ms Rutherford’s notice to vacate on 3 November 2022, which was to be effective from 29 November 2022. In the email, Ms Willis reminded Ms Rutherford to book a final inspection, how to refund the bond, and cancel automatic payments, if any.
The subsequent correspondence between the parties in the following months indicates that Ms Willis did not accept a verbal agreement that the 12-month fixed term is conditional on an outside chance that the tenants may move to Australia towards the end of 2022.
In her response dated 29 May 2023, Ms Rutherford addressed Ms Hetherington's statement from 15 May 2023 regarding "Addendum A". “This is the tenancy agreement, not our verbal agreement with Vicki Hetherington about leaving if the job came through. We are referring to the mutual agreement, which I trusted.”
In effect, Ms Rutherford relied on her verbal agreement with Ms Hetherington before forming a 12-month fixed-term tenancy agreement that she could be released from the 12-month tenancy if she needed to move to Australia by outside chance. My assessment
What was the parties' intention when signing the written tenancy agreement?
I asked Ms Rutherford about her stated intention of having a 6-month term tenancy on the application for tenancy, which needed to be reflected in the tenancy agreement. In response, Ms Rutherford explained in her evidence: “..., because Vicki assured us that it would be OK and she would help us.” (emphasis mine)
I then asked Ms Rutherford how Ms Hetherington had assured her. Ms. Rutherford responded.: “So we went into this not knowing if Dr.Thaker was going to get this job here. It was an outside chance that he'd be accepted. So we went into it thinking, well, there's a very good chance we'll remain in Auckland. But we said to Vicki right from the start, we have applied for this job. This is the situation. We would prefer a six-month tenancy. She asked the owner if the six-month tenancy was possible and they said no. But they obviously wanted us in the property, so they offered us a one-week free rental instead, alongside her assurance and the mutual agreement that if we got that job and if we moved to Australia, that she would help us.” (emphasis mine)
According to Ms Rutherford, the landlord's offer of one week's free rent played a role in her decision to sign a 12-month fixed-term tenancy. She also believed that she had agreed with Ms Hetherington that she could break the tenancy if Dr Thaker were offered an opportunity in Australia, provided that she gave one month's notice and returned the one week's free rent.
In my view, Ms Rutherford's failure to reduce her intention in writing is fatal to her application before me for the following reasons. a. Sections 13(1) and (2) of the Residential Tenancies Act 1986 (RTA) require landlords to provide a written tenancy agreement signed by both parties before the start of the tenancy. In addition, Section 13A RTA outlines the minimum information that must be included in a tenancy agreement, such as the expiration date of a fixed-term tenancy. Therefore, any oral representation or statement regarding the tenancy will not be enforceable if it conflicts with the written agreement. b. Although Ms Rutherford intended to have a flexible tenancy agreement, this intention does not necessarily align with the landlord's intention. The landlord intended a 12-month fixed-term tenancy with one week of free rent. The tenancy agreement signed by both parties on 2 July 2022 clearly states that the tenancy is a fixed-term tenancy starting on 4 July 2022 and ending on 3 July 2023. Therefore, both parties agreed to a 12-month fixed- term tenancy. c. If Ms Rutherford wanted the tenancy to be as flexible as she wished, the parties could have included a condition subsequent clause in the agreement. For instance, the landlord could have agreed to release the tenants from the 12-month fixed-term tenancy if they found employment in Australia. However, such a clause was not included in the agreement. d. The tenants knew that the landlord had declined their request for a 6- month fixed-term tenancy and relied on Ms Hetherington's assurance to help them break the 12-month fixed-term tenancy. e. It should be noted that this assurance does not equate to the landlord agreeing to release Ms Rutherford from the 12-month fixed-term tenancy even if Ms Hetherington assured Ms Rutherford that she would help her persuade the landlord to terminate the 12-month fixed-term tenancy. These are two distinct concepts that should not be confused with each other. f. There was never a meeting of the minds for a 12-month fixed-term tenancy conditional on the tenants moving to Australia. The meeting of the minds was for a 12-month fixed-term tenancy between 4 July 2022 and 3 July 2023.
To avoid doubt, I do not accept Ms Rutherford’s argument that the landlord released her from her 12-month fixed-term tenancy just because she gave notice to vacate the premises by 29 November 2022.
The landlord has no legal authority to prevent a tenant from giving a notice to vacate during the fixed-term tenancy. If a tenant decides to leave during this period, the landlord must make the necessary arrangements for a final inspection and refund of the bond. This is because the landlord must mitigate the losses under section 49 RTA.
The fact that Ms Willis engaged the tenants with a smooth vacation of the premises cannot be taken as the landlord had agreed to release the tenants from the 12-month fixed-term tenancy. Conclusion
After considering the evidence and submissions provided, I am not satisfied on the balance of probabilities that the 12-month fixed-term tenancy agreement was conditional upon the tenants moving to Australia.
Accordingly, the 12-month fixed-term agreement is legally binding, and the tenants are responsible for paying rent until 2 February 2023. This contractual obligation was established when both parties signed the agreement, indicating their mutual understanding and agreement to the terms. Filing fee
Because Northern Rental Management Ltd t/a Corporate Property Rentals Acting Agent For Bezar Family Trust has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4480145 — Rent arrears at 25 Gunn Way, Hobsonville, Auckland 0616

At a glance

Tenancy Tribunal case 4480145 — Rent arrears at 25 Gunn Way, Hobsonville, Auckland 0616

At a glance

Award balance

Claims & awards

Order

Reasons

Australia by an outside chance?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Australia by an outside chance?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions