What was the outcome of Tenancy Tribunal case 4749639?

The tribunal order states: Neville Morgan Mitchell owes Queenstown-Lakes District Council $945.44 (“the

How much money was awarded in case 4749639?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $925.00 awarded to landlord

What type of tenancy dispute was case 4749639?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4749639?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10008776-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4749639?

The tribunal order states: Neville Morgan Mitchell owes Queenstown-Lakes District Council $945.44 (“the

How much money was awarded in case 4749639?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $925.00 awarded to landlord

What type of tenancy dispute was case 4749639?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4749639?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10008776-Tribunal_Order.pdf.

Unit/Flat 2, 45 McDougall Street, Wanaka, Wanaka 9305 Tenancy Tribunal Case 4749639 — Rent arrears

Claims and awards in Tenancy Tribunal application 4749639 — net $945.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$925.00	ns previously given, I prefer the landlord evidence and order the tenant to pay $925.00 to the landlord. Conditional Termination.
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$945.44
Total payable by Tenant to Landlord	$945.44

Claims and awards in Tenancy Tribunal application 4749639 — net $945.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$925.00	ns previously given, I prefer the landlord evidence and order the tenant to pay $925.00 to the landlord. Conditional Termination.
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$945.44
Total payable by Tenant to Landlord	$945.44

Order

Neville Morgan Mitchell owes Queenstown-Lakes District Council $945.44 (“the debt”).
Neville Morgan Mitchell must pay rent and the debt as follows: a. By 94 weekly payments of $135.00, being $125.00 for rent and $10.00 for the debt. b. A final payment of $130.44, being $125.00 for rent and $5.44 for the debt. c. Payments will be every Thursday, with the first payment on 29/02/2024 and continuing until 18/12/2025.
Payments will be allocated in the following order: rent, rent arrears, and the filing fee.
If the tenant fails to pay rent and rent arrears within 2 working days of the due dates: a. The tenancy at Unit/Flat 2, 45 McDougall Street, Wanaka, Wanaka 9305 will terminate and the landlord will have immediate possession of the premises. b. The balance of the debt will be payable immediately.
If the tenant fails to pay the filing fee within 2 working days of the due date, the filing fee will be payable immediately.

Reasons

Both parties attended the hearing on 23 February 2024.
Mr Howard and Mr Amston appeared for the landlord.
The tenancy relates to premises in Wanaka. There was some dispute between the parties as to the correct physical address for the premises. That issue is not of particular relevance to this hearing. Suffice to say, the address is recorded in the tenancy agreement as both “Flat 2, 45 McDougal Street, Wanaka” and “Unit 2, 45 McDougall Street, Wanaka”. The tenant does not accept that either of these is the correct address.
The tenancy agreement records that the tenancy commenced on or about 18 February 2016 and is current as of the day of the hearing. General Law
As 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 that the landlord 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 may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “... like 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.” (the emphasis is mine).
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.
In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it.”
This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.
Section 97(4) Residential Tenancies Act 1986 provides that: “... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law”.
It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities. This case includes an allegation of assault (although a relatively minor assault). Landlord claims
The landlord has made the following applications; • Termination and possession on the grounds that the rent was 21 days or more in arrears on the date the application was filed with the Tribunal. • Termination and possession for breach of the tenancy agreement or the Residential Tenancies Act 1986 (“RTA”) which is incapable of remedy. • Rent arrears. • Release of the bond and reimbursement of the filing fee. Rent 21 days in arrears.
Section 55 RTA provides that the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that the rent was, at the date on which the application was filed, at least 21 days in arrears.
The application was filed with the Tribunal on 24 November 2023.
The landlord provided a rent summary which shows that the rent arrears on 24 November 2023 was $925.00. The weekly rental on the premises is $125.00.
The tenant says that the landlord previously provided the tenant with a $500.00 rent credit and that this did not show in the landlord rent summary.
The tenant said that the landlord had also previously agreed to provide the tenant with a $200.00 rent credit and that this credit did now show in the rent summary.
The purport of the tenant’s argument relating to the rent summary was that not only was the tenant not in arrears by 21 days or more on the day the application was filed with the Tribunal, but he was also potentially in credit.
During the course of the hearing, I was able to find and refer the tenant to the $200.00 credit in the landlord’s rent summary.
I was unable during the hearing to see the $500.00 rent credit in the rent summary. I invited the tenant to provide a copy of the landlord’s email to him recording the agreement to give the tenant a $500.00 rent credit. That document has now been provided by the tenant. It records an agreement by a staff member of the landlord dated 4 October 2021, to provide the tenant with a $500.00 rent credit. The email notes that “all rent owing to 1 October 2021 would be credited as per the conversation with Mark Samways”. The opening rent account was $635.15 in arrears. The remaining amount owing once the rent credit had been issued by the landlord was $125.00.
I have now had the opportunity to consider the lengthy rent summary provided by the landlord and I see that the $500.00 rent credit has been attributed to this account. The credit is shown as being applied to the rent on 4 October 2021 and left a balance owing by the tenant of $125.00 as had been agreed in the landlord’s email to the tenant .
In this issue, I prefer the evidence of the landlord, that as of the date of filing this application the rent was 21 days of more in arrears.
That is not necessarily the end of the matter. Section 55 (1A) RTA provides that the Tribunal may, instead of making a final termination order for non- payment of rent under s.55 (1)(a) RTA, make a conditional order if, but only if, it is satisfied that; The tenant will pay any rent in arrear within a period specified by the Tribunal; and it is unlikely that the tenant will commit any further breach of a kind to which any of the previsions of s.55(1)(a) to (c) apply. Consideration of this issue is given later in my decision. Termination for breach
The Tribunal may terminate a tenancy where it is satisfied that the tenant has committed a breach of the tenancy agreement or of the RTA that is of such a nature or extent that it would be inequitable to refuse to make an order terminating the tenancy.
What are the breaches complained of by the landlord? The breaches can be divided into two distinct categories.
The first is that the tenant has physically assaulted one of the landlord’s contractors. The evidence proffered by the landlord is limited. It consists of a written statement by the Parks Officer – Contracts. That staff member said that a contractor reported being pushed by the tenant. No evidence is provided from the contractor.
With all due respect to the tenant, he is an elderly man with an extensive range of ailments of varying severity. No evidence was provided to the Tribunal to indicate that the contractor suffered any injury or ongoing debilitation as a result of the push. In the circumstances, by a very fine margin, I do not consider that this incident warrants termination of the tenancy. It would not be inequitable to refuse to make the termination order. The application is dismissed. The tenant should not take this as a licence to carry out assaults of any manner on either staff or contractors of the landlord. No doubt in the event that it were to occur again, the landlord would refer this order to the adjudicator considering the matter.
Secondly, and in my view somewhat more seriously, are a range of complaints from the landlord staff that the tenant has been intimidating and offensive both in person, by telephone messages and in writing. I have reviewed the evidence of the landlord’s staff and their interactions with the tenant. I agree with them completely. Some of the comments made by the tenant are racist, rude and offensive. It is not the type of behaviour that someone simply turning up to work on a daily basis should be required to put up with. Some of the comments could be said to be intimidatory.
The landlord was unable to refer me to any specific threat made by the tenant and relied on the “general tone” of the interactions. A threat of assault includes an act or gesture to apply force to another person, if the other person believes on reasonable grounds that the tenant has an ability to give effect to that threat. For me to find that there has been threatening behaviour, I would require evidence of a threat. The landlord has been unable to provide that evidence. That the tenant may have been strident and rude in his interaction with the landlord’s staff is clear on the evidence. That does not however amount to a threat, nor is it grounds for me to terminate the tenancy. The application is dismissed. Rent arrears
The landlord says that the rent is in arrears in the sum of $925.00 as of the date of the hearing on 23 February 2024. The landlord has provided a rent summary in support of the claim. The tenant has raised the matters referred to previously in this decision to dispute the amount said to be owing. For the reasons previously given, I prefer the landlord evidence and order the tenant to pay $925.00 to the landlord. Conditional Termination.
I have found that the rent was more than 21 days in arrears on the date that this application was filed.
Where rent is at least 21 days in arrears on the date the application was filed, the Tribunal must make either a final or a conditional termination order. See section 55(1)(a) and (1A) RTA.
The tenant offered to repay the debt at $5.00 per week. That would take far too long for a debt of $925.00. I must take into account the tenant’s expressed financial difficulties in ordering the tenant to pay $10.00 per week. The tenant needs to be fully aware that a failure to make a payment of his weekly rent or the weekly contribution towards the debt for two working days or more will entitle the landlord to immediately terminate the tenancy without further reference to the Tribunal. The onus is on the tenant to ensure that the payments are made.
I am satisfied the tenant will pay the debt within the period specified in the order and is unlikely to commit any further relevant breach. I have granted a conditional termination order.
The conditional termination order will lapse if it is fully complied with. If the tenant breaches the order, the possession order may be enforced for 90 days from the first breach. See section 64(4)(b) Residential Tenancies Act 1986.
During the course of the hearing, both parties expressed varying degrees of frustration at the communication or lack thereof with the other. The tenant accepted that he was “grumpy” and suggested that his medical issues were partly to blame. The tenant may find it easier to communicate if he had one experienced person as a contact with the landlord for all issues relating to his tenancy. In turn, the tenant must try to remember in his interactions with the landlord’s staff that he is dealing with humans who have feelings and who are simply trying to do their job. His current offensive behaviour is unlikely to result in his desired outcome.
As the landlord has substantially succeeded with the claim, I have ordered the tenant to reimburse the filing fee.
The tenant has applied for name suppression. Under Section 95A(1) RTA, a suppression order must be granted on the application of a party that has wholly or substantially succeeded in proceedings.
In the present case, the tenant was not wholly or substantially successful.
I have considered if I should grant a name suppression order for the tenant having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here that I need to consider is whether suppressing the tenant’s name and identifying details outweighs the interests of the open justice reporting principle. In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the tenant and the public interest, the public interest outweighs the tenant’s interests.
Accordingly, no order is made for suppression of the tenant’s name and identifying details.

Tenancy Tribunal case 4749639 — Rent arrears at Unit/Flat 2, 45 McDougall Street, Wanaka, Wanaka 9305

At a glance

Tenancy Tribunal case 4749639 — Rent arrears at Unit/Flat 2, 45 McDougall Street, Wanaka, Wanaka 9305

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