What was the outcome of Tenancy Tribunal case 4561075?

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

How much money was awarded in case 4561075?

Compensation: $1,575.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4561075?

The dispute type was not classified.

Where can I read the official tribunal order for case 4561075?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9467779-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4561075?

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

How much money was awarded in case 4561075?

Compensation: $1,575.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4561075?

The dispute type was not classified.

Where can I read the official tribunal order for case 4561075?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9467779-Tribunal_Order.pdf.

Unit/Flat 2, 72B Parris Street, Waitara, Waitara 4320 Tenancy Tribunal Case 4561075 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4561075 — net $1,595.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,575.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,595.44
Total payable by Landlord to Tenant	$1,595.44

Claims and awards in Tenancy Tribunal application 4561075 — net $1,595.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,575.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,595.44
Total payable by Landlord to Tenant	$1,595.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The landlord’s application is dismissed.
Wayne Beggs and Maxine Rogers must pay Jared Luke Lock-Pue $1,595.44 immediately, calculated as shown in table below:

Reasons

The tenant and the landlord attended the hearing. The tenant was not at the Tribunal at the start time and so I delayed the start of the hearing for around 15 minutes. The tenant arrived shortly after the hearing had begun. By the time of the tenant’s arrival, I had only checked service details and begun to discuss with the landlord the application that the landlord had had filed. The tenant was able to participate fully in the hearing once he arrived. Adjournment request
Prior to the hearing the landlord asked for an adjournment on the basis that a witness (who in this decision I will call ‘R’) was not available due to work.
I declined the adjournment. The original application was filed in April 2023. One adjournment had already been granted in this case. The parties have had more than a sufficient amount of time to prepare and ensure witness availability. Further, there was insufficient evidence to support R having a work commitment that she could not be excused from.
During the course of the hearing the landlord provided emails from the Department of Corrections. The landlord has attempted to obtain recordings of telephone conversations between the tenant and R from the time the tenant was in prison.
An email from Corrections sets out that this cannot be provided to the landlord. It sets out that the release of the calls may be considered at the request of the Tribunal (s 117 Corrections Act 2004). Section 117 Corrections Act 2004 sets out that an authorised person may disclose a call if the authorised person believes that the disclosure is necessary for the conduct of proceedings (already commenced or reasonably in contemplation) before a court or tribunal.
I decline to make such a request to the Department of Corrections. The landlord has had since April to find out this information and I consider it would have been reasonably obvious that Corrections were not going to release recordings to a third party simply on their request. It is also set out in s 117 Corrections Act 2004.
I am not satisfied that the telephone recordings are necessary for the conduct of these proceedings (as required by s 117 Corrections Act 2004) so I am not satisfied that an authorised person would release the calls. This hearing can be conducted without this evidence because the landlord could have called the third party as a witness and the landlord has had the opportunity to present a written statement from the witness to me.
Further, as set out below, I have found that the landlord’s actions mean that they took possession and the tenancy terminated. Even if the tenant consented to the tenancy ending the tenant’s goods still needed to be dealt with in accordance with the Residential Tenancies Act 1986 (RTA). The applications
The tenancy began on 3 September 2020. By the date of the hearing the tenancy had ended. The tenant seeks compensation for the loss of his property.
The tenant says that the landlord breached his tenancy agreement by ‘subletting’ to others. He says that ‘subletting’ has to be agreed and signed because there is a clause in the tenancy agreement setting this out. He says that as a result of the landlord doing this his property is all gone. The tenant says the landlord breached the tenancy agreement by not properly storing his things and by not making contact with him. The tenant also says that the landlord breached his privacy by: (a) allowing the ‘subletters’ into the property (b) by the ‘subletters’ going through his things and (c) allowing for his things to be taken.
The tenant withdrew his application for a work order and exemplary damages.
The tenant confirmed that the above was the full basis of his claim and that nothing further was required to be considered.
The landlord filed an application, but it raises no claim – only a response to the tenant’s application. A landlord does not need to bring its own claim to respond to an application filed by the tenant. The landlord’s application is therefore dismissed. The tenant’s case
The tenant says that on 5 May 2022 he was jailed for 3 months. The tenant says that while he was in prison the landlord allowed other people to live at the property which he had rented.
The tenant says he barely had contact with anyone while in prison. The tenant says that his mother contacted Mr Beggs to see if his brother could move into the property, but this was not allowed by Mr Beggs. The tenant says he paid rent for about 3 weeks via his benefit but then no rent was paid.
The tenant says that R called him in prison. She managed to call him in prison by saying she was his sister and cousin and on one occasion by saying there was an emergency.
First, the tenant said that R made contact twice with him while he was in prison but later said R made contact with him four times. The tenant says that the connection between him and R is that they both live in Waitara and went to school together. The tenant also later explained that R’s mother talked to his mother, and that R’s uncle had been ‘going out’ with the tenant’s mother. R’s uncle is the tenant’s brother’s father.
The tenant says that R told him that she had sorted the tenancy out with Mr Beggs via her father-in-law and that Mr Beggs and her father-in-law were friends so it was alright that she could move in. The tenant says this call took place in July/August.
The tenant says that R’s daughter (D) and her partner were moved into the property by the landlord. He says that he discovered this in the week prior to being let out of prison on e-bail in July/August.
Upon being released from this sentence the tenant was escorted to the property to gather some of his things by the police. Once he did this, he then left for Auckland as he says that he had to be outside of the region. The tenant says at this point he could see that his things remained in the house including his bed and fridge. He told D that she could continue using his things – he says she was sleeping on his bed.
The tenant then remained out of prison for 5 weeks in Auckland. He did not pay rent at this time. He says he made no contact with the landlord at this time about D being in the property. He says he did not have a telephone and had no time.
The tenant was then incarcerated in Mount Eden and Whanganui prison. He did not pay rent at this time. He was released in February 2023. He says that he was released on home detention to the property after his probation officer contacted the landlord who had agreed to this.
The tenant also explained that R had called him after he had been in Mount Eden prison, in around September 2022, to say that D had moved in and that Mr Beggs was sweet with this and that she would look after the place while he was inside. The tenant says he was: ‘wow, I have a tenancy agreement that my lawyers said was binding’.
On his return to the property this time the tenant found somebody different living there. This person was K, who he found at the property with others. The tenant has different accounts of whether 2, 5 or 6 people were living there. However, he settled on their being 5 people at the property when he returned. They left saying they could not take all of their things at that time. The tenant says that property left by K remained at the premises until mid-June 2023. He provided photographs of some of these items.
The tenant had no knowledge about who K was. He says there was no discussion about K living in the property. The tenant expressed concerns that D’s partner was connected to one gang but that someone who was with K was connected to another gang.
The tenant says that he was surprised when it came to home detention that the home was still available to him. He thought his things would be in storage and he would be looking to pay storage fees and the tenancy would have been terminated. This was particularly because, to begin with, his sentence looked to be lengthy – he expressed he could have faced over 14 years due to a false accusation.
He says that when he returned his two-bedroom furnished flat was emptied of his things – his bed, drawers, TV, stereo, art collection, fridge, toaster were gone. He says there was absolutely nothing. He says that he had inheritance from his father in the form of bedding, furniture, laptops, priceless art, curtains, ornaments and boxes of things he had not yet gone through. He says that his personal papers were gone – his father’s will and his car ownership papers. The tenant says there was a fridge and a TV when he returned but that K said it was hers so he let her take it. He did take photographs and contacted the police.
The landlord’s case
The landlord says that they wanted to keep the tenancy open for the tenant to help him. This was repeated at various points in the hearing.
Mr Beggs says that he knew the tenant may be going to prison as they had discussed it beforehand. However, the landlord says that they ultimately found out via the media. The landlord says that they were then contacted by R. The landlord initially said that this was in January 2022 but then conceded that the date may not be correct as it appeared that the tenant was not incarcerated at this time.
The landlord’s initial evidence was that R had said that the tenant had contacted R while he was in prison as she was a family friend. The landlord had not heard from the tenant. At this stage the tenant was 4 weeks in arrears. The landlord says that R said she was contacting him to see if the landlord would let one of her family move in while the tenant was in prison. She said she had been in contact with the tenant and he had agreed.
Later in the hearing the landlord expanded on this: R also had said she was the tenant’s support person and that she wanted to talk to him about the possibility of putting in family members and that the tenant had agreed but that it was up to Mr Beggs to decide. The landlord explained that he was okay with this so long as it was on the understanding that the tenant could move back into the property when he was out of prison.
Later again in the hearing, the landlord says that R said that she had been in contact with the tenant and that the tenant had agreed that the property was behind in rent because he was in prison, so the tenant had asked R to try and keep it and fix the arrears. The tenant had agreed with R that she could put some people in there and she could put D in there while the tenant was in prison.
The landlord says that he contacted the tenant’s lawyer (after getting the telephone number from R). The landlord said that the lawyer said she would pass on the message. The tenant did not get in touch.
The landlord says that Mr Beggs spoke to R again and she said that the tenant had agreed that she could sell the tenant’s bed and fridge for rent arrears and for R’s daughter (D) to live in the property.
The landlord says that they took R’s word for it when it came to the tenant’s agreement and that they were just trying to help the tenant. The lawyer also said to the landlord that she had spoken to R and R gave the landlord the lawyer’s telephone number. The landlord says this supports R’s involvement with the tenant.
The landlord had no communication with the tenant about D moving in or about what R had told the landlord.
The landlord described how the tenant’s things had been partially packed up and put in the spare room. Some items remained in the house generally. R packed up the tenant’s things. D then lived in the property.
D then paid rent directly to the landlord. The landlord considered D to be responsible for the payment of rent while she was living there.
Subsequently D moved out and R arranged for K to move in. The landlord says that R told him that D was moving out but that another family member was moving in. The landlord had no discussion with the tenant or his lawyer about K moving in. K paid the landlord rent direct. The landlord considered K to be responsible for the payment of rent while she was living there. The landlord expressed that they were not worried about K moving in everything had been fine with D living at the property.
The landlord says that if D or K stopped paying rent then they would have to leave.
The landlord says that the tenancy agreement was never terminated by either party. The landlord agreed to the tenant returning when asked if the property could be used for home detention.
The landlord was not clear on the dates that D and K lived at the property. The landlord suggested that D could have moved in around late May.
The landlord provided a written statement from R which sets out that she contacted the tenant while he was in prison and that he agreed to ‘having family members stay and pay rent while he was in prison’. The letter sets out that the tenant agreed with her that the tenant’s bed and fridge could be sold for arrears and that when he was released, he would be able to go into the flat without arrears or being evicted.
Initially the landlord said that prior to K moving in the tenant’s things were still at the property but they could only assume that they remained there as they did not go back. Later in the hearing they said they had been to the property while K lived there (they explained they had other property nearby) and saw the tenant’s property during K’s stay. The landlord did not know what items remained at the end of K’s stay. The landlord did not return to the property immediately before the tenant returned. The law and analysis
It is clear that people other than the tenant were living at the property while the tenant was incarcerated. This is not in dispute.
I find that by allowing D and K live in the property, without the clear consent of the tenant, the landlord terminated the tenancy with the tenant in breach of the tenancy agreement. The landlord’s actions amount to the landlord taking possession. A landlord cannot lawfully terminate a tenancy in this way. In doing so the landlord then failed to deal with the tenant’s goods as required by the RTA.
I find that the tenancy was terminated, and the landlord took possession of the premises when they allowed D (and subsequently K) to move into the property because: a. The landlord agreed that others could live in the property without the clear consent of the tenant. I find that relying on someone who simply says they have agreed something with a tenant is not a sufficient basis to allow them to start living at the property. Further, and in any event, the precise nature and extent of the consent allegedly given is far from clear. R’s written statement is not entirely consistent with the landlord’s evidence about what he was told by R. The landlord’s own evidence about what R told him on the telephone is also not clear. Further, the landlord made no attempt at all to ensure that K was a person to which the tenant had consented to living at the property. b. Upon allowing D and K to live at the property the landlord took rent direct from D and K. c. The landlord considered D and K responsible for the payment of the rent while they lived in the property. d. The landlord’s evidence was that if D and K did not pay rent they would have to leave. e. The evidence was that it was the landlord who told K she had to move out when the tenant returned. f. The landlord ultimately chose who lived at the property while the tenant was incarcerated. He approved both D and K living at the property.
The above facts show that it was the landlord controlling the occupancy of the premises by D and K rather than the tenant controlling them as a sub-landlord. To put that another way, the landlord was acting entirely consistently with having taken possession of the premises.
If the tenant had retained the tenancy as a sub-landlord then I would have expected to see the tenant remaining ultimately responsible for the rent, for the tenant to have approached the landlord asking if he could sub-let, for the landlord to have approved this (in writing if done in accordance with the tenancy agreement) and for the tenant to have stepped into the shoes of the landlord (having all the same obligations and rights as a landlord) for the tenancies of D and K. This is not what happened. The tenant stepped out of the picture – he did not act as D or K’s landlord.
One of the tenant’s grounds for his application for compensation is that he says the landlord breached the tenancy agreement by not properly storing his things.
Where a tenancy ends, a landlord is required to deal with goods of the tenants that are left at the premises in a specified way. This is set out in section 62 to 62F RTA. The landlord did not deal with the goods in any of the prescribed ways. Instead, the goods were simply left in the premises – either in the spare room or available for D and K and any other occupant to use.
I find that in not following the prescribed provisions in the RTA there has been a breach of the tenancy agreement by the landlord not appropriately storing the tenant’s things. This has resulted in the tenant’s goods being open for others to access and I accept that this would have impacted on his privacy.
As this breach is sufficient for me to consider an award of compensation. I do not need to consider the other grounds raised by the tenant.
I record that the landlord expressed on numerous occasions that they were only trying to help the tenant. I do not doubt that they thought their actions would be good for the tenant. However, in doing so they made a number of assumptions without reference to the tenant, the most basic of which being that the tenant wanted the tenancy to continue and that he was happy for his items to be left in the premises when others moved in.
The landlords potentially could have given the tenant more certainty and protected the tenant’s items in an appropriate manner if they had sought an order from the Tribunal terminating the tenancy (this could have been done on the basis of rent arrears given the tenant’s admission he was not paying rent) and then applied for consequential orders for the removal and disposal of the tenant’s possessions where necessary. Compensation
The tenant says that all of his things were taken. Given that other people had been given access to his property by the landlord I accept the tenant’s evidence that he had items taken. The landlord could not say otherwise. As stated at the hearing, they could only ‘assume’ his items remained. There was no suggestion that the landlord assisted the tenant with the return of his property or that they made investigations about this. They did not return to the property immediately before the tenant returned.
It is not clear what has happened to the property and who removed it. The exception to this is the fridge and a TV. The tenant allowed K to take these items because he did not want a conflict and K said they were hers. He was not sure if these were his items or not.
The difficulty with the tenant’s claim for compensation for his missing items is that the tenant’s evidence is very limited. The tenant says that he has had to start again with help from St Vinnies. There are no photographs or witness statements to evidence the extent of his property. The tenant was only able to give vague descriptions although he did provide screen shots from Trade Me of numerous items (over 100 pages) that he said he had. This evidence is of very limited weight.
I am satisfied that a fridge was removed by K and I consider that it was reasonable for the tenant to allow K take it given the circumstances. The tenant had proof of the replacement cost. I award $575 for the replacement fridge.
Other than this, insufficient evidence of the property taken, its value and/or its replacement cost has been provided. There was no proof of high value goods such as a $20,000 bed, laptops and priceless works of art. I am unable therefore to make a further award for compensation to replace the items the tenant says have been taken.
However, I do accept that the circumstances mean it is reasonable to award general damages to the tenant to compensate him for the stress caused to him by having his personal things accessible to R, D, K and others. I consider a fair level of compensation would be $1000.00.
In making this award, I have considered the fact that the tenant did have an opportunity to protect his belongings. He saw his items at the premises and knew D was living there when he was escorted to the property by the police prior to going to Auckland. The tenant had five weeks in which to contact the landlord to make arrangements for the collection of his goods or their safe storage. I do not accept that practically he could not have done this.
My award of general compensation has been reduced to take this into account. Suppression and filing fee
I award the tenant the filing fee as he has been successful in obtaining an award of compensation as a result of his application.
Neither party seeks name suppression, so I have not awarded this.

Tenancy Tribunal case 4561075 — Tenancy dispute at Unit/Flat 2, 72B Parris Street, Waitara, Waitara 4320

At a glance

Tenancy Tribunal case 4561075 — Tenancy dispute at Unit/Flat 2, 72B Parris Street, Waitara, Waitara 4320

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions