What was the outcome of Tenancy Tribunal case 4848820?

The tribunal order states: Elenoa Tabusese Heritage must pay Monarch Realty Limited T/A Harcourts

How much money was awarded in case 4848820?

Cleaning: $201.25 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Previous Order Application 4786317 D…: $1,663.30 awarded to landlord; Property Damage: $160.00 awarded to landlord; Removal Of Possessions To Storage: $1,845.75 awarded to landlord; Storage Costs: $304.75 awarded to landlord

What type of tenancy dispute was case 4848820?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4848820?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10461725-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4848820?

The tribunal order states: Elenoa Tabusese Heritage must pay Monarch Realty Limited T/A Harcourts

How much money was awarded in case 4848820?

Cleaning: $201.25 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Previous Order Application 4786317 D…: $1,663.30 awarded to landlord; Property Damage: $160.00 awarded to landlord; Removal Of Possessions To Storage: $1,845.75 awarded to landlord; Storage Costs: $304.75 awarded to landlord

What type of tenancy dispute was case 4848820?

The primary dispute was Cleanliness. Related themes: Property damage.

Where can I read the official tribunal order for case 4848820?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10461725-Tenancy_Tribunal_Order.pdf.

Unit/Flat 10, 1 Vialou Street, Hamilton Central, Hamilton Tenancy Tribunal Case 4848820 — Cleanliness

Claims and awards in Tenancy Tribunal application 4848820 — net $4,195.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4786317 dated 22/02/2024	$1,663.30	Previous order application 4786317 dated 22/02/2024
Cleaning	$201.25	Cleaning
Lock/key replacement	$160.00	Lock/key replacement
Removal of possessions to storage	$1,845.75	Removal of possessions to storage
Storage costs	$304.75	Storage costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,195.49
Total payable by Tenant to Landlord	$4,195.49

Order

Elenoa Tabusese Heritage must pay Monarch Realty Limited T/A Harcourts Hamilton Rentals as Agent for Alan & Genesis Mangalindan $4,195.49 immediately, calculated as shown in table below.

Reasons

Mr Neal and Ms Harrison appeared for the landlord. There was no appearance by the tenant.
The tenancy commenced on 26 July 2023 and was for a fixed term to expire on 26 July 2024. On 19 January 2024, the landlord issued a 14-day breach notice to remedy rent arrears by 02 February 2024. On the same day, the landlord filed an application with the Tribunal seeking termination under section 56(1)(c) of the Residential Tenancies Act 1986 (The “Act”). On 22 February 2024, the Tribunal terminated the tenancy under section 56(2) of the Act. The tenant had failed to remedy the breach notice, and the rent was at least three weeks in arrears at the date of hearing. The rent summary produced at that hearing is unchanged and shows that the tenant made there last rent payment on 23 December 2023. The Tribunal ordered rent arrears and refunded the bond leaving a balance of $1,633.30.
The decision records at paragraph [2] that the landlord believed that the tenant was still residing at the premises but had been unable to contact them. The decision, however, goes onto record that the landlrod mentioned that others who were close to the tenant had also been unable to make contact.
On 23 February 2024, the landlord conducted an end of tenancy inspection. The inspection report, which includes photographs of the property has been produced. They show that the property appears to be lived in. Unable to contact the tenant the landlord arranged for cleaning ($201.25), and changing of the locks, as the keys had not been returned ($160.00). The landlord also arranged for all of the tenant’s possessions to be packed away ($1,845.75) and placed in storage ($304.75). On 28 March 2024, the landlord filed an application for cleaning costs, changing the locks, removal and storage costs, and an order for disposal of the tenant’s possessions held in storage.
In the application, the landlord has included a claim for exemplary damages stating, “The tenant abandoned the property. We had to terminate the tenancy through the Tenancy Tribunal for non-payment of rent.”
Dealing with the claims for cleaning, changing the locks, removal, and storage of the tenant’s possessions. At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish/possessions, return all keys. See section 40(1)(e)(ii)-(v) of the Act. On the evidence produced, I am satisfied that the tenant has failed to leave the property in a clean condition and return the keys provided at the commencement. I am also satisfied that the claim for removal and storage of the tenant’s possessions is justified. The amounts claimed are reasonable and awarded in full.
The issue in this matter concerns the landlords claim that the tenant, in fact, abandoned the property without a reasonable excuse and is so whether an award of exemplary damages is warranted.
Abandonment occurs where a tenant leaves the property without intending to return, and, at the material time, the time of departure, is in rent arears. See section 61 of the Act.
There are three questions: having made an application for termination of the tenancy for rent arrears, can the landlord subsequently claim that the property was at the material time in fact abandoned, and if so, was the tenancy abandoned, and can they claim exemplary damages.
The landlord states that in early April 2024, the tenant made contact and advised that they had been out of the country. The landlord states the tenant appeared annoyed that the tenancy had been terminated but was more concerned about the return of their possessions, which they then retrieved.
Despite seeking a finding that the tenant has abandonment the property and exemplary damages, the landlord is not seeking an accrual of rent under section 61(3)(b), which had they would have been entitled to had they sought termination for abandonment in the first instance. This acknowledges the position taken by the Court in Wright v Morton, DC 19 August 1996, DC Dunedin TT 363/96 which stated that having made an application for termination for rent arrears it could not be then converted to abandonment.
Section 80 of the Act provides that subject to section 105 and 117 to 120 (which deal with rehearings and appeal) every order made by the Tribunal shall unless expressed as an interim order be final and binding on all parties.
There is a legal principle known as the ‘rule of Henderson v Henderson,” Henderson v Henderson [ 1843] 3 Hare 100, which states that a party must present its entire case during the initial proceedings and cannot later reopen the matter to advance a new ground or argument. Doing so constitutes an abuse of process for which the party seeking to do so should be estopped or barred. In Henderson v Henderson the Court stated: “Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances), permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
The principle remains good law and was referred to by the Court in Muir, Bradbury, Peebles, and Maud v Commissioner of Inland Revenue [2015] NZHC
Res judicata is the legal doctrine that once a matter is resolved at cannot be revisited.
The end of tenancy inspection report dated 23 February 2024 states “The tenancy has been terminated by the Tenancy Tribunal. Vacant possession has been granted to the landlord on 22.02.2024. The tenant has not been in communication with us for quite some time. We have arranged removal of all her possessions from the property and they will be stored a storage facility until we hear from the tenant or until we have an order from the Tenancy Tribunal to dispose of her goods.”
On 22 February 2024, the landlord advised the Tribunal that they believed tenant still residing at the property but had not had contact for some time. Nor did it appear that those close to the tenant, including their employer, had either. The rent was in arrears at the material time, the tenant having made their last rent payment on 23 December 2023. In this case, I am satisfied that the landlord had grounds to seek termination of the tenancy for both abandonment and rent arrears. However, having heard from the landlord, they chose the latter as a more expedient option. In doing so, they nevertheless achieved what they had set out to do: termination of the tenancy and rent arrears to the date of termination. In my view that rule of Henderson and Henderson applies, and the landlord is estopped or barred from raising a claim that could have been raised in their previous application.
Had the claim been allowed, it would have, in any event, been declined. I am not satisfied more likely than not that the tenant abandoned the tenancy. There is an email produced dated 26 March 2023, sent by the landlord to the tenant, which states, “As discussed, we have your items in storage”. This is at odds with the landlord’s oral evidence that the tenant first made contact after the end of the tenancy in early April 2024 and advised that they had been out of the country. The fact that the tenant contacted the landlord enquiring about the status of the tenancy and their possessions suggests that that did not have the intention of abandoning the property. Abandoning the property would have also been an abandonment of their possessions, which appeared from the photographs to have been all of their worldly possessions, which they clearly did not want to do. It is not unusual for a tenant to leave the country, become stranded, and for their rent to fall into arrears. While they have breached the terms of the agreement to pay rent, this does not necessarily mean that they have abandoned the property. For at the material time, which is when the tenant leaves the property, it must be shown that they did so without an intention to return. Costs
Because Monarch Realty Limited T/A Harcourts Hamilton Rentals as Agent for Alan & Genesis Mangalindan has substantially succeeded with the claim, I have reimbursed the filing fee.
On 22 February 2024, the Tribunal made an order relating to this tenant for rent arrears, refund of the bond, and reimbursement of the filing fee. Name suppression
Although the landlord has been substantially successful and are entitled to name suppression, they do not seek it, and no orders are made.

Claims and awards in Tenancy Tribunal application 4848820 — net $4,195.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4786317 dated 22/02/2024	$1,663.30	Previous order application 4786317 dated 22/02/2024
Cleaning	$201.25	Cleaning
Lock/key replacement	$160.00	Lock/key replacement
Removal of possessions to storage	$1,845.75	Removal of possessions to storage
Storage costs	$304.75	Storage costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,195.49
Total payable by Tenant to Landlord	$4,195.49

Order

Elenoa Tabusese Heritage must pay Monarch Realty Limited T/A Harcourts Hamilton Rentals as Agent for Alan & Genesis Mangalindan $4,195.49 immediately, calculated as shown in table below.

Reasons

Mr Neal and Ms Harrison appeared for the landlord. There was no appearance by the tenant.
The tenancy commenced on 26 July 2023 and was for a fixed term to expire on 26 July 2024. On 19 January 2024, the landlord issued a 14-day breach notice to remedy rent arrears by 02 February 2024. On the same day, the landlord filed an application with the Tribunal seeking termination under section 56(1)(c) of the Residential Tenancies Act 1986 (The “Act”). On 22 February 2024, the Tribunal terminated the tenancy under section 56(2) of the Act. The tenant had failed to remedy the breach notice, and the rent was at least three weeks in arrears at the date of hearing. The rent summary produced at that hearing is unchanged and shows that the tenant made there last rent payment on 23 December 2023. The Tribunal ordered rent arrears and refunded the bond leaving a balance of $1,633.30.
The decision records at paragraph [2] that the landlord believed that the tenant was still residing at the premises but had been unable to contact them. The decision, however, goes onto record that the landlrod mentioned that others who were close to the tenant had also been unable to make contact.
On 23 February 2024, the landlord conducted an end of tenancy inspection. The inspection report, which includes photographs of the property has been produced. They show that the property appears to be lived in. Unable to contact the tenant the landlord arranged for cleaning ($201.25), and changing of the locks, as the keys had not been returned ($160.00). The landlord also arranged for all of the tenant’s possessions to be packed away ($1,845.75) and placed in storage ($304.75). On 28 March 2024, the landlord filed an application for cleaning costs, changing the locks, removal and storage costs, and an order for disposal of the tenant’s possessions held in storage.
In the application, the landlord has included a claim for exemplary damages stating, “The tenant abandoned the property. We had to terminate the tenancy through the Tenancy Tribunal for non-payment of rent.”
Dealing with the claims for cleaning, changing the locks, removal, and storage of the tenant’s possessions. At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish/possessions, return all keys. See section 40(1)(e)(ii)-(v) of the Act. On the evidence produced, I am satisfied that the tenant has failed to leave the property in a clean condition and return the keys provided at the commencement. I am also satisfied that the claim for removal and storage of the tenant’s possessions is justified. The amounts claimed are reasonable and awarded in full.
The issue in this matter concerns the landlords claim that the tenant, in fact, abandoned the property without a reasonable excuse and is so whether an award of exemplary damages is warranted.
Abandonment occurs where a tenant leaves the property without intending to return, and, at the material time, the time of departure, is in rent arears. See section 61 of the Act.
There are three questions: having made an application for termination of the tenancy for rent arrears, can the landlord subsequently claim that the property was at the material time in fact abandoned, and if so, was the tenancy abandoned, and can they claim exemplary damages.
The landlord states that in early April 2024, the tenant made contact and advised that they had been out of the country. The landlord states the tenant appeared annoyed that the tenancy had been terminated but was more concerned about the return of their possessions, which they then retrieved.
Despite seeking a finding that the tenant has abandonment the property and exemplary damages, the landlord is not seeking an accrual of rent under section 61(3)(b), which had they would have been entitled to had they sought termination for abandonment in the first instance. This acknowledges the position taken by the Court in Wright v Morton, DC 19 August 1996, DC Dunedin TT 363/96 which stated that having made an application for termination for rent arrears it could not be then converted to abandonment.
Section 80 of the Act provides that subject to section 105 and 117 to 120 (which deal with rehearings and appeal) every order made by the Tribunal shall unless expressed as an interim order be final and binding on all parties.
There is a legal principle known as the ‘rule of Henderson v Henderson,” Henderson v Henderson [ 1843] 3 Hare 100, which states that a party must present its entire case during the initial proceedings and cannot later reopen the matter to advance a new ground or argument. Doing so constitutes an abuse of process for which the party seeking to do so should be estopped or barred. In Henderson v Henderson the Court stated: “Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances), permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
The principle remains good law and was referred to by the Court in Muir, Bradbury, Peebles, and Maud v Commissioner of Inland Revenue [2015] NZHC
Res judicata is the legal doctrine that once a matter is resolved at cannot be revisited.
The end of tenancy inspection report dated 23 February 2024 states “The tenancy has been terminated by the Tenancy Tribunal. Vacant possession has been granted to the landlord on 22.02.2024. The tenant has not been in communication with us for quite some time. We have arranged removal of all her possessions from the property and they will be stored a storage facility until we hear from the tenant or until we have an order from the Tenancy Tribunal to dispose of her goods.”
On 22 February 2024, the landlord advised the Tribunal that they believed tenant still residing at the property but had not had contact for some time. Nor did it appear that those close to the tenant, including their employer, had either. The rent was in arrears at the material time, the tenant having made their last rent payment on 23 December 2023. In this case, I am satisfied that the landlord had grounds to seek termination of the tenancy for both abandonment and rent arrears. However, having heard from the landlord, they chose the latter as a more expedient option. In doing so, they nevertheless achieved what they had set out to do: termination of the tenancy and rent arrears to the date of termination. In my view that rule of Henderson and Henderson applies, and the landlord is estopped or barred from raising a claim that could have been raised in their previous application.
Had the claim been allowed, it would have, in any event, been declined. I am not satisfied more likely than not that the tenant abandoned the tenancy. There is an email produced dated 26 March 2023, sent by the landlord to the tenant, which states, “As discussed, we have your items in storage”. This is at odds with the landlord’s oral evidence that the tenant first made contact after the end of the tenancy in early April 2024 and advised that they had been out of the country. The fact that the tenant contacted the landlord enquiring about the status of the tenancy and their possessions suggests that that did not have the intention of abandoning the property. Abandoning the property would have also been an abandonment of their possessions, which appeared from the photographs to have been all of their worldly possessions, which they clearly did not want to do. It is not unusual for a tenant to leave the country, become stranded, and for their rent to fall into arrears. While they have breached the terms of the agreement to pay rent, this does not necessarily mean that they have abandoned the property. For at the material time, which is when the tenant leaves the property, it must be shown that they did so without an intention to return. Costs
Because Monarch Realty Limited T/A Harcourts Hamilton Rentals as Agent for Alan & Genesis Mangalindan has substantially succeeded with the claim, I have reimbursed the filing fee.
On 22 February 2024, the Tribunal made an order relating to this tenant for rent arrears, refund of the bond, and reimbursement of the filing fee. Name suppression
Although the landlord has been substantially successful and are entitled to name suppression, they do not seek it, and no orders are made.

Tenancy Tribunal case 4848820 — Cleanliness at Unit/Flat 10, 1 Vialou Street, Hamilton Central, Hamilton

At a glance

Tenancy Tribunal case 4848820 — Cleanliness at Unit/Flat 10, 1 Vialou Street, Hamilton Central, Hamilton

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions