What was the outcome of Tenancy Tribunal case 4841282?

The tribunal order states: Megan Sieroczuk and Briar Grace Frater-Mathieson’s application is dismissed.

How much money was awarded in case 4841282?

Break Lease Costs: $832.55 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $2,520.00 awarded to landlord

What type of tenancy dispute was case 4841282?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4841282?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10261181-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4841282?

The tribunal order states: Megan Sieroczuk and Briar Grace Frater-Mathieson’s application is dismissed.

How much money was awarded in case 4841282?

Break Lease Costs: $832.55 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $2,520.00 awarded to landlord

What type of tenancy dispute was case 4841282?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4841282?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10261181-Tenancy_Tribunal_Order.pdf.

Flat 2, 7 View Street, Dunedin Central, Dunedin 9016 Tenancy Tribunal Case 4841282 — Rent arrears

Claims and awards in Tenancy Tribunal application 4841282 — net $1,412.99 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 11 April 2024	$2,520.00	Rent arrears to 11 April 2024
Break Lease Costs	$832.55	Break Lease Costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,412.99
Total payable by Tenant to Landlord	$1,412.99

Order

Megan Sieroczuk and Briar Grace Frater-Mathieson’s application is dismissed.
The Bond Centre is to pay the bond of $1,960.00 (3671236) to Dpm Property Group Limited - as agent for Wayne and Elaine Jefcoate immediately.
Megan Sieroczuk, Briar Grace Frater-Mathieson, Warren Sieroczuk and Kaaren Mathieson are jointly and severally liable to pay DPM Property Group Limited as agent for Wayne and Elaine Jefcoate $1,412.99 immediately as set out in the table below.

Reasons

The hearing was held by telephone. Both tenants attended the hearing as did Sara Hutchinson for the landlord.
Both guarantors were rung twice at the commencement of the hearing of the landlord’s application (4861240). All calls went to voicemail. The Tribunal is able to proceed in the absence of parties to the claim. The tenants advised the guarantors knew the details of the hearing and the application. Background
On 7 November 2024 the tenants signed a fixed term tenancy for a two bedroomed flat at 7 View Street, Dunedin. The tenancy commenced on 25 January 2024 and was to end on 15 January 2024. Written guarantees were provided by a parent of each tenant.
On 13 January 2024 the tenants contacted the landlord and advised they did not want to go ahead with the tenancy. On 17 January 2024 they forwarded a written application to be released early from the tenancy stating:
The tenants did not collect the keys from the landlord and did not move into the tenancy.
The landlord agreed to the tenants’ application to be released early from the fixed term and commenced advertising the property on 20 January. However for various reasons replacement tenants where not found until late March and a new tenancy commenced on 12 April 2024. Claims
The tenants seek an order from the Tribunal reducing the term of their tenancy to before 11 April 2024.
The landlord claims rent arrears to 11 April and break lease costs from the tenants and the guarantors. The tenants’ claim:
The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986 (RTA), which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances b. the change was unforeseen c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
The weighing of relative hardship is a question of fact to be assessed objectively in each case.
The tenants applied for reduction of the fixed-term tenancy as they say there has been an unforeseen change in their circumstances as there were limited job opportunities in Dunedin which suited their circumstances and needs, and they had to move to another location to get work.
Miss Sieroczuk said she resigned from her job on around 20 January as her car had broken down (the head gasket blew on around 15 January) which meant she had no transport, and on her clients was “not being very nice” to her. She was working as a health carer and it meant transport to her clients’ homes was difficult and expensive. Prior to resigning she had been looking for another job without success. After resigning she still could not find a suitable position and was suffering financial hardship.
Miss Frater-Mathieson had not been working full-time for over a year, but had done some ‘temp’ work as well as assisting in her mother’s business. The work for her mother had dried up due to the time of the year and little to no temp work was available.
The tenants said they realised they would not be able to afford the rent without work and that their job opportunities in Dunedin were limited. That led them to the conclusion that they needed to move to another location.
“Unforeseen” is not defined in the RTA. The term unforeseen has a dictionary definition of “unexpected” and “without warning”. In the legal context, it must also be taken as the reverse of what is foreseen, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “”not a real risk”. 1
In the circumstances described by the tenants I am satisfied they have had a change of circumstances however I am not persuaded by their evidence that the change was unforeseen. My reasons for saying this includes: a) Miss Frater-Mathieson had only had temporary work for the year prior to the tenancy starting. She had been looking for permanent work in that time without success. I am not convinced that her circumstances had changed from the time she signed the tenancy agreement. That is, the work she had at the time of signing the tenancy agreement was of a temporary nature, it seems the work for her mother was always going to reduce or stop over the summer months and she had not been able to secure full-tine permanent work. b) When Miss Sieroczuk she signed the agreement she had full-time work, however she was looking to resign and was actively trying to find other work. Miss Sieroczuk became unemployed because she resigned her position. Therefore it was not unforeseeable that she did would not have a job. I do not accept that having a car mechanically fail and having to use alternative transport to get to work is unforeseeable.
I accept that the tenants could not afford the rent for the tenancy due to their circumstances and that they suffered hardship as a result. However the property manager has described the landlord/owner as a pensioner, who relies on income from this property to support his wife in an aged care facility. I am not persuaded that the tenants’ hardship would be greater than the landlord’s hardship.
Accordingly I find the tenants’ claim to reduce the term of the tenancy so that it ends before 11 April 2024 is dismissed. The landlord’s claim:

How much rent is owing?

I find the tenants are liable for rent to the end of the day before the new tenancy started. The amount claimed is proven by the rent summary. 1 Bond v Tang Invercargill TT, 09/00583/IN, 25 August 2009

Are the tenants liable for the costs to break the term of the tenancy?

Section 44A, RTA allows the landlord to claim any expenses reasonably incurred in finding a new tenant where the landlord agrees to the tenancy ending early. A landlord seeking to recover such expenses must first provide the tenant with an itemised account of the expenses.
The landlord seeks $832.55 for costs relating to early termination of the tenancy and finding a replacement tenant. The tenants consider they should not be liable to pay the full costs claimed as: a) The costs they were given by the property manager initially were for $250.00 less than is being claimed; b) They were told it would take around 5-6 weeks for the premises to be re-let, and had they known it would take it would take nearly 12 weeks for a new tenancy to be secured they would have made an application to the Tribunal sooner. c) The landlord could have done more to advertise the property as there was no “for rent” sign at the premises and they were discouraged from advertising the premises themselves by the property manager.
After considering all of the evidence I am satisfied that the landlord took all reasonable steps in a timely manner to advertise and try to re-let the premises. I am persuaded by the property manager’s evidence that there are less enquiries for rental properties in January and February for residential tenancies in Dunedin than during October/November when the tenants had been looking. I am also persuaded that the property manager did not guarantee the premises would be re-let in 5-6 weeks but indicated that was the average time expected.
In this instance I am satisfied that the time to re-let was extended as the first two offers made to potential tenants were declined, and the third potential tenant’s offer was withdrawn by the property manager as their credit check showed they were unsuitable.
I am satisfied that the landlord advertised the property in the main avenues that they receive the most enquiries from and where most potential tenants would look. I am not convinced that the tenants advertising the property themselves or a sign being placed at the property would have resulted in an earlier tenancy.
The property manager confirmed that she offered a $250.00 discount on the break lease costs to the tenants, which she said represented the savings if she did not have to prepare for and attend a Tribunal hearing to claim those costs. The tenants says they did not understand that was the basis of the reduced amount offered. Regardless that offer is no longer available and I have to consider whether the amount claimed represents expenses reasonably incurred by the landlord to re-let the premises.
The landlord has provided a detailed breakdown of the potential costs, the time each step in the process took and the hourly rate charged. Having heard the property manager’s detailed account of the charges at the hearing I find the time and hourly rate charged for each step is reasonable and that the cost claimed does represent expenses reasonably incurred by the landlord in agreeing to the early release from the tenancy. Accordingly I find they are liable to pay the amount claimed.
While the amount may seem large to the tenants this is the cost to the landlord to arrange a new tenancy. Had Miss Sieroczuk and Miss Frater-Mathieson’s tenancy finished at the end of the fixed term as intended by the tenancy agreement these costs would not have been incurred by the landlord. They are only incurred at this stage because the landlord is allowing the tenants to break the fixed term tenancy early.

Are the guarantors liable?

After considering the nature and the scope of the guarantee entered into I am satisfied that Warren Sieroczuk and Kaaren Frater-Mathieson’s liability as guarantors extends to and includes liability for rent arrears and the break lease costs. Therefore I find they are jointly and severally liable, as are the tenants, for the amount awarded to the landlord Filing fee:
As the landlord has wholly succeeded with the claim I must reimburse the filing fee. Suppression:
A party who is wholly or mainly successful in their claim is entitled to request suppression. The landlord does not seek suppression.
The tenants seek suppression however they have not been successful in their claim. Section 95A(4) RTA gives the Tribunal a discretionary power to grant name suppression “having regard to the interests of the parties and the public interest”. However there are no persuasive reasons, having regard to the interests of the parties and the public interest, why name suppression should be granted to the tenants or the guarantors in this instance. Therefore I will not order name suppression.

Claims and awards in Tenancy Tribunal application 4841282 — net $1,412.99 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 11 April 2024	$2,520.00	Rent arrears to 11 April 2024
Break Lease Costs	$832.55	Break Lease Costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,412.99
Total payable by Tenant to Landlord	$1,412.99

Order

Megan Sieroczuk and Briar Grace Frater-Mathieson’s application is dismissed.
The Bond Centre is to pay the bond of $1,960.00 (3671236) to Dpm Property Group Limited - as agent for Wayne and Elaine Jefcoate immediately.
Megan Sieroczuk, Briar Grace Frater-Mathieson, Warren Sieroczuk and Kaaren Mathieson are jointly and severally liable to pay DPM Property Group Limited as agent for Wayne and Elaine Jefcoate $1,412.99 immediately as set out in the table below.

Reasons

The hearing was held by telephone. Both tenants attended the hearing as did Sara Hutchinson for the landlord.
Both guarantors were rung twice at the commencement of the hearing of the landlord’s application (4861240). All calls went to voicemail. The Tribunal is able to proceed in the absence of parties to the claim. The tenants advised the guarantors knew the details of the hearing and the application. Background
On 7 November 2024 the tenants signed a fixed term tenancy for a two bedroomed flat at 7 View Street, Dunedin. The tenancy commenced on 25 January 2024 and was to end on 15 January 2024. Written guarantees were provided by a parent of each tenant.
On 13 January 2024 the tenants contacted the landlord and advised they did not want to go ahead with the tenancy. On 17 January 2024 they forwarded a written application to be released early from the tenancy stating:
The tenants did not collect the keys from the landlord and did not move into the tenancy.
The landlord agreed to the tenants’ application to be released early from the fixed term and commenced advertising the property on 20 January. However for various reasons replacement tenants where not found until late March and a new tenancy commenced on 12 April 2024. Claims
The tenants seek an order from the Tribunal reducing the term of their tenancy to before 11 April 2024.
The landlord claims rent arrears to 11 April and break lease costs from the tenants and the guarantors. The tenants’ claim:
The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986 (RTA), which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances b. the change was unforeseen c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
The weighing of relative hardship is a question of fact to be assessed objectively in each case.
The tenants applied for reduction of the fixed-term tenancy as they say there has been an unforeseen change in their circumstances as there were limited job opportunities in Dunedin which suited their circumstances and needs, and they had to move to another location to get work.
Miss Sieroczuk said she resigned from her job on around 20 January as her car had broken down (the head gasket blew on around 15 January) which meant she had no transport, and on her clients was “not being very nice” to her. She was working as a health carer and it meant transport to her clients’ homes was difficult and expensive. Prior to resigning she had been looking for another job without success. After resigning she still could not find a suitable position and was suffering financial hardship.
Miss Frater-Mathieson had not been working full-time for over a year, but had done some ‘temp’ work as well as assisting in her mother’s business. The work for her mother had dried up due to the time of the year and little to no temp work was available.
The tenants said they realised they would not be able to afford the rent without work and that their job opportunities in Dunedin were limited. That led them to the conclusion that they needed to move to another location.
“Unforeseen” is not defined in the RTA. The term unforeseen has a dictionary definition of “unexpected” and “without warning”. In the legal context, it must also be taken as the reverse of what is foreseen, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “”not a real risk”. 1
In the circumstances described by the tenants I am satisfied they have had a change of circumstances however I am not persuaded by their evidence that the change was unforeseen. My reasons for saying this includes: a) Miss Frater-Mathieson had only had temporary work for the year prior to the tenancy starting. She had been looking for permanent work in that time without success. I am not convinced that her circumstances had changed from the time she signed the tenancy agreement. That is, the work she had at the time of signing the tenancy agreement was of a temporary nature, it seems the work for her mother was always going to reduce or stop over the summer months and she had not been able to secure full-tine permanent work. b) When Miss Sieroczuk she signed the agreement she had full-time work, however she was looking to resign and was actively trying to find other work. Miss Sieroczuk became unemployed because she resigned her position. Therefore it was not unforeseeable that she did would not have a job. I do not accept that having a car mechanically fail and having to use alternative transport to get to work is unforeseeable.
I accept that the tenants could not afford the rent for the tenancy due to their circumstances and that they suffered hardship as a result. However the property manager has described the landlord/owner as a pensioner, who relies on income from this property to support his wife in an aged care facility. I am not persuaded that the tenants’ hardship would be greater than the landlord’s hardship.
Accordingly I find the tenants’ claim to reduce the term of the tenancy so that it ends before 11 April 2024 is dismissed. The landlord’s claim:

How much rent is owing?

I find the tenants are liable for rent to the end of the day before the new tenancy started. The amount claimed is proven by the rent summary. 1 Bond v Tang Invercargill TT, 09/00583/IN, 25 August 2009

Are the tenants liable for the costs to break the term of the tenancy?

Section 44A, RTA allows the landlord to claim any expenses reasonably incurred in finding a new tenant where the landlord agrees to the tenancy ending early. A landlord seeking to recover such expenses must first provide the tenant with an itemised account of the expenses.
The landlord seeks $832.55 for costs relating to early termination of the tenancy and finding a replacement tenant. The tenants consider they should not be liable to pay the full costs claimed as: a) The costs they were given by the property manager initially were for $250.00 less than is being claimed; b) They were told it would take around 5-6 weeks for the premises to be re-let, and had they known it would take it would take nearly 12 weeks for a new tenancy to be secured they would have made an application to the Tribunal sooner. c) The landlord could have done more to advertise the property as there was no “for rent” sign at the premises and they were discouraged from advertising the premises themselves by the property manager.
After considering all of the evidence I am satisfied that the landlord took all reasonable steps in a timely manner to advertise and try to re-let the premises. I am persuaded by the property manager’s evidence that there are less enquiries for rental properties in January and February for residential tenancies in Dunedin than during October/November when the tenants had been looking. I am also persuaded that the property manager did not guarantee the premises would be re-let in 5-6 weeks but indicated that was the average time expected.
In this instance I am satisfied that the time to re-let was extended as the first two offers made to potential tenants were declined, and the third potential tenant’s offer was withdrawn by the property manager as their credit check showed they were unsuitable.
I am satisfied that the landlord advertised the property in the main avenues that they receive the most enquiries from and where most potential tenants would look. I am not convinced that the tenants advertising the property themselves or a sign being placed at the property would have resulted in an earlier tenancy.
The property manager confirmed that she offered a $250.00 discount on the break lease costs to the tenants, which she said represented the savings if she did not have to prepare for and attend a Tribunal hearing to claim those costs. The tenants says they did not understand that was the basis of the reduced amount offered. Regardless that offer is no longer available and I have to consider whether the amount claimed represents expenses reasonably incurred by the landlord to re-let the premises.
The landlord has provided a detailed breakdown of the potential costs, the time each step in the process took and the hourly rate charged. Having heard the property manager’s detailed account of the charges at the hearing I find the time and hourly rate charged for each step is reasonable and that the cost claimed does represent expenses reasonably incurred by the landlord in agreeing to the early release from the tenancy. Accordingly I find they are liable to pay the amount claimed.
While the amount may seem large to the tenants this is the cost to the landlord to arrange a new tenancy. Had Miss Sieroczuk and Miss Frater-Mathieson’s tenancy finished at the end of the fixed term as intended by the tenancy agreement these costs would not have been incurred by the landlord. They are only incurred at this stage because the landlord is allowing the tenants to break the fixed term tenancy early.

Are the guarantors liable?

After considering the nature and the scope of the guarantee entered into I am satisfied that Warren Sieroczuk and Kaaren Frater-Mathieson’s liability as guarantors extends to and includes liability for rent arrears and the break lease costs. Therefore I find they are jointly and severally liable, as are the tenants, for the amount awarded to the landlord Filing fee:
As the landlord has wholly succeeded with the claim I must reimburse the filing fee. Suppression:
A party who is wholly or mainly successful in their claim is entitled to request suppression. The landlord does not seek suppression.
The tenants seek suppression however they have not been successful in their claim. Section 95A(4) RTA gives the Tribunal a discretionary power to grant name suppression “having regard to the interests of the parties and the public interest”. However there are no persuasive reasons, having regard to the interests of the parties and the public interest, why name suppression should be granted to the tenants or the guarantors in this instance. Therefore I will not order name suppression.

Tenancy Tribunal case 4841282 — Rent arrears at Flat 2, 7 View Street, Dunedin Central, Dunedin 9016

At a glance

Tenancy Tribunal case 4841282 — Rent arrears at Flat 2, 7 View Street, Dunedin Central, Dunedin 9016

At a glance

Award balance

Claims & awards

Order

Reasons

How much rent is owing?

Are the tenants liable for the costs to break the term of the tenancy?

Are the guarantors liable?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much rent is owing?

Are the tenants liable for the costs to break the term of the tenancy?

Are the guarantors liable?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions