What was the outcome of Tenancy Tribunal case 4854060?

The tribunal order states: The tenancy of Winston Harawera Peterson Makoare at Unit/Flat 1209, 139C

How much money was awarded in case 4854060?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4854060?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4854060?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10280457-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4854060?

The tribunal order states: The tenancy of Winston Harawera Peterson Makoare at Unit/Flat 1209, 139C

How much money was awarded in case 4854060?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4854060?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4854060?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10280457-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1209, 139C Greys Avenue, Auckland Central, Tenancy Tribunal Case 4854060 — 14-day notice

Order

The tenancy of Winston Harawera Peterson Makoare at Unit/Flat 1209, 139C Greys Avenue, Auckland Central, Auckland 1010 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, immediately.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy because of an assault on 24 March 2024 at a multi unit Kāinga Ora complex. The questions I have to consider are: • Was there an assault? • Should I use my discretion?

Was there an assault?

Section 55(1)(c) of the Residential Tenancies Act 1986 (the RTA) says the Tribunal shall end a tenancy where the Tribunal is satisfied that the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, the landlord or any agent of the landlord, or any occupier of the same complex.
Section 55(2) RTA says “The Tribunal may refuse to make an order under subsection (1) if, but only if, it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies (but see also section 78A(3)(b)).” Section 78A is not relevant here.
I was provided with CCTV footage of the three fights that happened that night. The tenant saw the videos and agreed the fights took place. He can be seen pushing another tenant’s head into a wall in the lift, pushing the tenant hard enough for her to fall backwards and slide along the floor, and kicking her while she was lying on the floor in the hallway. He asked that I take into consideration that the other tenant stole his money, provoked him, and tried to attack him with a flame thrower. He said he kicked her because she had a knife. Even if I take all this into account, the fact remains that he assaulted another tenant, and this is a breach of the RTA.
I allowed the tenant’s support worker to speak on his behalf during the hearing. He submitted that the complex provides supported living for those who need it, and I should take this into account because the living situation is not a usual tenancy. The landlord submitted in reply that the tenant signed a standard form tenancy agreement and the RTA applies, even though there is onsite support from another organisation. I am more persuaded by the landlord’s submission because there is no precedent for the Tribunal to treat Kāinga Ora tenancies different from other tenancies.

Should I use my discretion?

The landlord submitted that I could not use my discretion under section 55(2) RTA because an assault is not a breach which is capable of remedy. This exact point was considered in the District Court in Haitana v Housing New Zealand Corporation. This was a situation where a tenant had been convicted of an assault and the landlord subsequently applied for termination of the tenancy in the Tenancy Tribunal. The decision was appealed to the District Court.
Judge Abbott considered the correct approach to s.55(2) was as set out in Collins v Housing New Zealand Corporation decided in the High Court, and said - “In essence, Kean J held that the fact that a breach may not be capable of remedy, i.e. in the context of an assault which has been committed, is not determinative in the section 55(2) context. As Keane J put it (paras [37]-[38], the preferable interpretation of section 55(2) is to put aside a breach which cannot be remedied and then consider the issue of termination by reference to the other two preconditions for the exercise of the discretion, i.e. compensation, if any, to the landlord and the likelihood or otherwise of any further similar breach by the tenant.” See CIV-2006-009- 003335, DC Christchurch 2006 and CIV-2004-709-717 HC Christchurch 2004
I find I should consider my discretion under 55(2) RTA. I accept this is not a situation where the landlord can be compensated for loss. The tenant submitted that he and the tenant he assaulted have lived in the same complex for a month since the fights and they have not had another dispute, so it is unlikely he will commit any further breach of the RTA. However, I am concerned that the fights were a significant event, and it would not be fair to the landlord or the other occupiers to take the risk.
I find I should end this tenancy because of the assault on another occupier of the building.

Order

The tenancy of Winston Harawera Peterson Makoare at Unit/Flat 1209, 139C Greys Avenue, Auckland Central, Auckland 1010 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, immediately.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy because of an assault on 24 March 2024 at a multi unit Kāinga Ora complex. The questions I have to consider are: • Was there an assault? • Should I use my discretion?

Was there an assault?

Section 55(1)(c) of the Residential Tenancies Act 1986 (the RTA) says the Tribunal shall end a tenancy where the Tribunal is satisfied that the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, the landlord or any agent of the landlord, or any occupier of the same complex.
Section 55(2) RTA says “The Tribunal may refuse to make an order under subsection (1) if, but only if, it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies (but see also section 78A(3)(b)).” Section 78A is not relevant here.
I was provided with CCTV footage of the three fights that happened that night. The tenant saw the videos and agreed the fights took place. He can be seen pushing another tenant’s head into a wall in the lift, pushing the tenant hard enough for her to fall backwards and slide along the floor, and kicking her while she was lying on the floor in the hallway. He asked that I take into consideration that the other tenant stole his money, provoked him, and tried to attack him with a flame thrower. He said he kicked her because she had a knife. Even if I take all this into account, the fact remains that he assaulted another tenant, and this is a breach of the RTA.
I allowed the tenant’s support worker to speak on his behalf during the hearing. He submitted that the complex provides supported living for those who need it, and I should take this into account because the living situation is not a usual tenancy. The landlord submitted in reply that the tenant signed a standard form tenancy agreement and the RTA applies, even though there is onsite support from another organisation. I am more persuaded by the landlord’s submission because there is no precedent for the Tribunal to treat Kāinga Ora tenancies different from other tenancies.

Should I use my discretion?

The landlord submitted that I could not use my discretion under section 55(2) RTA because an assault is not a breach which is capable of remedy. This exact point was considered in the District Court in Haitana v Housing New Zealand Corporation. This was a situation where a tenant had been convicted of an assault and the landlord subsequently applied for termination of the tenancy in the Tenancy Tribunal. The decision was appealed to the District Court.
Judge Abbott considered the correct approach to s.55(2) was as set out in Collins v Housing New Zealand Corporation decided in the High Court, and said - “In essence, Kean J held that the fact that a breach may not be capable of remedy, i.e. in the context of an assault which has been committed, is not determinative in the section 55(2) context. As Keane J put it (paras [37]-[38], the preferable interpretation of section 55(2) is to put aside a breach which cannot be remedied and then consider the issue of termination by reference to the other two preconditions for the exercise of the discretion, i.e. compensation, if any, to the landlord and the likelihood or otherwise of any further similar breach by the tenant.” See CIV-2006-009- 003335, DC Christchurch 2006 and CIV-2004-709-717 HC Christchurch 2004
I find I should consider my discretion under 55(2) RTA. I accept this is not a situation where the landlord can be compensated for loss. The tenant submitted that he and the tenant he assaulted have lived in the same complex for a month since the fights and they have not had another dispute, so it is unlikely he will commit any further breach of the RTA. However, I am concerned that the fights were a significant event, and it would not be fair to the landlord or the other occupiers to take the risk.
I find I should end this tenancy because of the assault on another occupier of the building.

Tenancy Tribunal case 4854060 — 14-day notice at Unit/Flat 1209, 139C Greys Avenue, Auckland Central,

At a glance

Tenancy Tribunal case 4854060 — 14-day notice at Unit/Flat 1209, 139C Greys Avenue, Auckland Central,

At a glance

Claims & awards

Order

Reasons

Was there an assault?

Should I use my discretion?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was there an assault?

Should I use my discretion?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions