How much money was awarded in case 4849360?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849360?

The dispute type was not classified.

Where can I read the official tribunal order for case 4849360?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10441608-Tenancy_Tribunal_Order.pdf.

How much money was awarded in case 4849360?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849360?

The dispute type was not classified.

Where can I read the official tribunal order for case 4849360?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10441608-Tenancy_Tribunal_Order.pdf.

58 Old Barn Road, Opaheke, RD 4, Papakura 2584 Tenancy Tribunal Case 4849360 — Tenancy dispute

Q: What was the outcome of Tenancy Tribunal case 4849360?

The tribunal order states: By way of declaration, that there is no residential tenancy agreement in place

Order

By way of declaration, that there is no residential tenancy agreement in place between FCT Trustee Limited (as purported landlord) and Elias Ottley Karena (as purported tenant) in respect of the residential premises at 58 Old Barn Road, Opaheke, RD 4, Papakura 2584.

Reasons

Only counsel for the applicant attended the hearing. Calls to the respondent went unanswered.
The applicant Secure Funding Limited seeks an order to invalidate a purported tenancy agreement dated 28 September 2023/2024 between FCT Trustee Limited as landlord and Elias Ottley Karena as tenant.
Pursuant to section 77(2)(d) of the Residential Tenancies Act 1986 (‘RTA’), the Tenancy Tribunal has jurisdiction to determine whether there is or is not, or was or was not at any material time, a tenancy agreement to which this Act applies in force in respect of any residential premises, and to determine the terms of and the parties to any such agreement.
In exercise of its jurisdiction under section 77 RTA, the Tribunal may make an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise.
I am satisfied from the evidence filed by the applicant that there is no valid residential tenancy agreement in place between FCT Trustee Limited as landlord and Elias Ottley Karena as tenant at any time.
On 28 September 2021, the applicant in this Tribunal proceeding Secure Funding Limited (‘the Mortgagee’) entered into a mortgage loan agreement (‘the Loan Agreement’) with Flying Cross Trust Limited (in liquidation) as mortgagor (‘the Mortgagor’).
Under the Loan Agreement, the Mortgagee advanced funds to the Mortgagor in exchange for being granted a registered mortgage over the alleged tenanted property at 58 Old Barn Road, Ōpaheke, Papakura 2584 (Property).
Glenn Michael Soroka and Peter Raymond Kerr (who were directors and shareholders of the Mortgagor prior to its liquidation) entered into deeds of guarantee and indemnity in favour of the Mortgagee which provided guarantees of the Mortgagor’s obligations under the Loan Agreement.
On or about 3 May 2022, the Mortgagor defaulted on its mortgage repayment obligations under the Loan Agreement. Liquidators were appointed to the Mortgagor on 15 July 2022.
Mr Soroka was served with a copy of a section 119 Property Law Act 2007 notice on 18 November 2022 advising that the Mortgagor was in default of its obligations under the Agreement (‘PLA Notice’). The PLA Notice expired unremedied on 31 January 2023.
On 12 December 2023 in High Court proceeding CIV-2023-404-2404, the Mortgagee obtained an order for summary judgment and to deliver up vacant possession of the Property against the Mortgagor, and Messrs Soroka and Kerr (‘the High Court Order’).
The High Court Order required the Mortgagor, Messrs Soroka and Kerr, and any other occupants to, amongst other things, deliver up vacant possession of the Property by 19 December 2023.
The Property was not delivered vacant by this time. The Mortgagee understands that Mr Soroka still resides at the Property.
On 7 February 2024, the Mortgagee obtained a possession order (‘Possession Order’). The Possession Order requires a bailiff officer from the Court to take physical possession of the Property on behalf of the Mortgagee so the Mortgagee can exercise its rights as Mortgagee in possession.
The bailiff arranged to take possession of the Property pursuant to the Possession Order on 23 February 2024 at 10:00am. The occupants of the Property (including Mr Soroka) were given notice by the bailiff.
On 20 February 2024 (i.e. three days before the repossession was to take place), Mr Soroka presented to the Mortgagee a tenancy agreement between a party previously unknown to the Mortgagee FCT Trustee Limited as landlord and Mr Karena as tenant (‘the purported Tenancy Agreement’), dated 28 September 2023 and 28 September 2024.
The Mortgagee was not aware of the purported Tenancy Agreement prior to 20 February 2024 and did not consent to it.
On 5 April 2024, the Liquidators (who are essentially, in control of the Mortgagor’s affairs) confirmed that they did not consent to and/or have any knowledge of the purported Tenancy Agreement prior to Mr Soroka presenting it to the Mortgagee on 20 February 2024.
I accept the Mortgagee’s position in this application to the Tribunal that the purported Tenancy Agreement is likely to be a document fabricated by Mr Soroka and/or persons associated with the Mortgagor to attempt to delay and/or frustrate the Mortgagee’s enforcement of the Possession Order.
I find that the purported Tenancy Agreement is invalid and ‘entered into’ for the misconstrued reason/purpose of preventing the Mortgagee from enforcing the Possession Order for these reasons: a. FCT Trustee Limited is not the registered owner of the Property. b. FCT Trustee Limited is recorded as the landlord under the purported Tenancy Agreement but the registered owner of the Property is the Mortgagor. c. FCT Trustee Limited has no interest in the Property. d. There is nothing before the Tribunal to show that FCT Trustee Limited has any ability to enter into agreements in relation to the Property and the purported Tenancy Agreement is not valid or binding for that reason alone. e. Further, the Liquidators did not and do not consent to the purported Tenancy Agreement. The registered owner of the Property is the Mortgagor; the Mortgagor has been in liquidation since July 2022 (i.e. 14 months prior to the purported execution of the purported Tenancy Agreement in September 2023). f. Even if any such tenancy agreement exists (which the Mortgagee denies), it is the Liquidators not FCT Trustee Limited who can enter into a tenancy agreement on behalf of the Mortgagor as registered owner of the Property. g. The Liquidators have confirmed that they have no knowledge of the purported Tenancy Agreement, did not sign it on the Mortgagor’s behalf, and did not and do not consent to it. h. Even if FCT Trustee Limited had authority to enter into the purported Tenancy Agreement, it could not have done so as the Liquidators were already in control of the Mortgagor prior to FCT Trustee Limited being registered on the New Zealand Companies Register. i. The Mortgagee did not consent to the purported Tenancy Agreement. The Mortgagee’s consent is required to enter into tenancy agreements under the terms of the Loan Agreement. The Mortgagee has not consented to the purported Tenancy Agreement, nor had knowledge of the same until Mr Soroka provided the purported Tenancy Agreement on 20 February 2024. j. The purported Tenancy Agreement is signed and dated as 28 September 2023 by Mr Soroka and allegedly Mr Kerr, but dated by Mr Karena (i.e. the tenant who is purported to be living at the Property) as 28 September 2024. This suggests that the purported Tenancy Agreement was signed recently, not in September 2023 as alleged. k. Mr Kerr was a director of the Mortgagor, but is not associated with FCT Trustee Limited at all. Mr Soroka is the sole director and shareholder of FCT Trustee Limited. This begs the question of why Mr Kerr’s signature was required for the purported Tenancy Agreement. l. For the above reasons, it is clear that the purported Tenancy Agreement has been devised by the Mortgagor and/or persons connected to the Mortgagor to prevent the Mortgagee from enforcing the Possession Order.
The facts in this case echo the facts in Associate Judge Doogue’s decision in Chen v Prasad and CRW Trust [2012] NZHC 1404 which held that there being no evidence whatsoever that the mortgagee agreed to the tenancy upon which the purported tenant relies on, by reason of s 105 of the Land Transfer Act 1952 there is no reason to suppose that the lease arrangement between the former owner and the purported tenant survived the transfer to the new purchasers of the property. Lastly, the High Court held that even if the new purchaser did know about the asserted claim by the purported tenant, it was not in any event a tenancy that was in existence at the time when the mortgagee sale took place.
I therefore accede to the Mortgagee’s application for an order to invalidate the purported Tenancy Agreement and make an order declaring that there is no residential tenancy agreement in place between FCT Trustee Limited (as purported landlord) and Elias Ottley Karena (as purported tenant) in respect of the residential premises at 58 Old Barn Road, Opaheke, RD 4, Papakura 2584.

Reasons

Only counsel for the applicant attended the hearing. Calls to the respondent went unanswered.

The applicant Secure Funding Limited seeks an order to invalidate a purported tenancy agreement dated 28 September 2023/2024 between FCT Trustee Limited as landlord and Elias Ottley Karena as tenant.

Pursuant to section 77(2)(d) of the Residential Tenancies Act 1986 (‘RTA’), the Tenancy Tribunal has jurisdiction to determine whether there is or is not, or was or was not at any material time, a tenancy agreement to which this Act applies in force in respect of any residential premises, and to determine the terms of and the parties to any such agreement.

In exercise of its jurisdiction under section 77 RTA, the Tribunal may make an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise.

I am satisfied from the evidence filed by the applicant that there is no valid residential tenancy agreement in place between FCT Trustee Limited as landlord and Elias Ottley Karena as tenant at any time.

On 28 September 2021, the applicant in this Tribunal proceeding Secure Funding Limited (‘the Mortgagee’) entered into a mortgage loan agreement (‘the Loan Agreement’) with Flying Cross Trust Limited (in liquidation) as mortgagor (‘the Mortgagor’).

Under the Loan Agreement, the Mortgagee advanced funds to the Mortgagor in exchange for being granted a registered mortgage over the alleged tenanted property at 58 Old Barn Road, Ōpaheke, Papakura 2584 (Property).

Glenn Michael Soroka and Peter Raymond Kerr (who were directors and shareholders of the Mortgagor prior to its liquidation) entered into deeds of guarantee and indemnity in favour of the Mortgagee which provided guarantees of the Mortgagor’s obligations under the Loan Agreement.

On or about 3 May 2022, the Mortgagor defaulted on its mortgage repayment obligations under the Loan Agreement. Liquidators were appointed to the Mortgagor on 15 July 2022.

Mr Soroka was served with a copy of a section 119 Property Law Act 2007 notice on 18 November 2022 advising that the Mortgagor was in default of its obligations under the Agreement (‘PLA Notice’). The PLA Notice expired unremedied on 31 January 2023.

On 12 December 2023 in High Court proceeding CIV-2023-404-2404, the Mortgagee obtained an order for summary judgment and to deliver up vacant possession of the Property against the Mortgagor, and Messrs Soroka and Kerr (‘the High Court Order’).

The High Court Order required the Mortgagor, Messrs Soroka and Kerr, and any other occupants to, amongst other things, deliver up vacant possession of the Property by 19 December 2023.

The Property was not delivered vacant by this time. The Mortgagee understands that Mr Soroka still resides at the Property.

On 7 February 2024, the Mortgagee obtained a possession order (‘Possession Order’). The Possession Order requires a bailiff officer from the Court to take physical possession of the Property on behalf of the Mortgagee so the Mortgagee can exercise its rights as Mortgagee in possession.

The bailiff arranged to take possession of the Property pursuant to the Possession Order on 23 February 2024 at 10:00am. The occupants of the Property (including Mr Soroka) were given notice by the bailiff.

On 20 February 2024 (i.e. three days before the repossession was to take place), Mr Soroka presented to the Mortgagee a tenancy agreement between a party previously unknown to the Mortgagee FCT Trustee Limited as landlord and Mr Karena as tenant (‘the purported Tenancy Agreement’), dated 28 September 2023 and 28 September 2024.

The Mortgagee was not aware of the purported Tenancy Agreement prior to 20 February 2024 and did not consent to it.

On 5 April 2024, the Liquidators (who are essentially, in control of the Mortgagor’s affairs) confirmed that they did not consent to and/or have any knowledge of the purported Tenancy Agreement prior to Mr Soroka presenting it to the Mortgagee on 20 February 2024.

I accept the Mortgagee’s position in this application to the Tribunal that the purported Tenancy Agreement is likely to be a document fabricated by Mr Soroka and/or persons associated with the Mortgagor to attempt to delay and/or frustrate the Mortgagee’s enforcement of the Possession Order.

I find that the purported Tenancy Agreement is invalid and ‘entered into’ for the misconstrued reason/purpose of preventing the Mortgagee from enforcing the Possession Order for these reasons: a. FCT Trustee Limited is not the registered owner of the Property. b. FCT Trustee Limited is recorded as the landlord under the purported Tenancy Agreement but the registered owner of the Property is the Mortgagor. c. FCT Trustee Limited has no interest in the Property. d. There is nothing before the Tribunal to show that FCT Trustee Limited has any ability to enter into agreements in relation to the Property and the purported Tenancy Agreement is not valid or binding for that reason alone. e. Further, the Liquidators did not and do not consent to the purported Tenancy Agreement. The registered owner of the Property is the Mortgagor; the Mortgagor has been in liquidation since July 2022 (i.e. 14 months prior to the purported execution of the purported Tenancy Agreement in September 2023). f. Even if any such tenancy agreement exists (which the Mortgagee denies), it is the Liquidators not FCT Trustee Limited who can enter into a tenancy agreement on behalf of the Mortgagor as registered owner of the Property. g. The Liquidators have confirmed that they have no knowledge of the purported Tenancy Agreement, did not sign it on the Mortgagor’s behalf, and did not and do not consent to it. h. Even if FCT Trustee Limited had authority to enter into the purported Tenancy Agreement, it could not have done so as the Liquidators were already in control of the Mortgagor prior to FCT Trustee Limited being registered on the New Zealand Companies Register. i. The Mortgagee did not consent to the purported Tenancy Agreement. The Mortgagee’s consent is required to enter into tenancy agreements under the terms of the Loan Agreement. The Mortgagee has not consented to the purported Tenancy Agreement, nor had knowledge of the same until Mr Soroka provided the purported Tenancy Agreement on 20 February 2024. j. The purported Tenancy Agreement is signed and dated as 28 September 2023 by Mr Soroka and allegedly Mr Kerr, but dated by Mr Karena (i.e. the tenant who is purported to be living at the Property) as 28 September 2024. This suggests that the purported Tenancy Agreement was signed recently, not in September 2023 as alleged. k. Mr Kerr was a director of the Mortgagor, but is not associated with FCT Trustee Limited at all. Mr Soroka is the sole director and shareholder of FCT Trustee Limited. This begs the question of why Mr Kerr’s signature was required for the purported Tenancy Agreement. l. For the above reasons, it is clear that the purported Tenancy Agreement has been devised by the Mortgagor and/or persons connected to the Mortgagor to prevent the Mortgagee from enforcing the Possession Order.

The facts in this case echo the facts in Associate Judge Doogue’s decision in Chen v Prasad and CRW Trust [2012] NZHC 1404 which held that there being no evidence whatsoever that the mortgagee agreed to the tenancy upon which the purported tenant relies on, by reason of s 105 of the Land Transfer Act 1952 there is no reason to suppose that the lease arrangement between the former owner and the purported tenant survived the transfer to the new purchasers of the property. Lastly, the High Court held that even if the new purchaser did know about the asserted claim by the purported tenant, it was not in any event a tenancy that was in existence at the time when the mortgagee sale took place.

I therefore accede to the Mortgagee’s application for an order to invalidate the purported Tenancy Agreement and make an order declaring that there is no residential tenancy agreement in place between FCT Trustee Limited (as purported landlord) and Elias Ottley Karena (as purported tenant) in respect of the residential premises at 58 Old Barn Road, Opaheke, RD 4, Papakura 2584.

Tenancy Tribunal case 4849360 — Tenancy dispute at 58 Old Barn Road, Opaheke, RD 4, Papakura 2584

At a glance

Claims & awards

Tenancy Tribunal case 4849360 — Tenancy dispute at 58 Old Barn Road, Opaheke, RD 4, Papakura 2584

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions