What was the outcome of Tenancy Tribunal case 4855670?

The tribunal order states: The tenancy of Steven Patrick Bruce Kirby at 12 Alker Road, Chartwell, Hamilton

How much money was awarded in case 4855670?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $5,955.00 awarded to landlord

What type of tenancy dispute was case 4855670?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4855670?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10258741-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4855670?

The tribunal order states: The tenancy of Steven Patrick Bruce Kirby at 12 Alker Road, Chartwell, Hamilton

How much money was awarded in case 4855670?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $5,955.00 awarded to landlord

What type of tenancy dispute was case 4855670?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4855670?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10258741-Tenancy_Tribunal_Order.pdf.

12 Alker Road, Chartwell, Hamilton 3210 Tenancy Tribunal Case 4855670 — Rent arrears

Claims and awards in Tenancy Tribunal application 4855670 — net $4,895.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 28 April 2024	$5,955.00	Rent arrears to 28 April 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,895.44
Total payable by Tenant to Landlord	$4,895.44

Order

The tenancy of Steven Patrick Bruce Kirby at 12 Alker Road, Chartwell, Hamilton 3210 is terminated, and possession is granted to Faith Christie Viva-Marco and Louis Marco, at 11.59pm on Sunday 12 May 2024
The Bond Centre is to pay the bond of $1,080.00 (6523976-018) to Faith Christie Viva-Marco and Louis Marco immediately.
Steven Patrick Bruce Kirby must pay Faith Christie Viva-Marco and Louis Marco $4,895.44 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond. The landlord has also applied for removal of the tenant’s goods from the garage and that the garaged is damaged.
Mr Kirby’s tenancy consists of the master bedroom and ensuite, and use of the garage along with communal facilities. The landlord has separate rental agreements for tenants in each of the other three bedrooms, and personally uses a separate lounge room to run a clinic in from time to time.

Should the tenancy be terminated?

The Residential Tenancies Act 1986 (RTA) provides that the Tribunal must make an order terminating the tenancy if is satisfied that at the date of the application rent was at least 21 days in arrears. See section 55(1)(a), RTA.
I am satisfied from the rent records provided by the landlord that rent was at least 21 days in arrears on the date the application was filed.
The tenant raised at the hearing issues relating to breach of his right to privacy (the landlord using a room at the premises to run a clinic and being there until late at night, and sometimes staying in the room; surveillance cameras inside the premises that were working for at least part of the tenancy; the ;landlord discussing his rent arrears with other tenants), and the landlord entering the premises without giving the required notice (to use the clinic, and to show prospective tenants through the property).
The Tribunal must consider whether any matters raised by a tenant, who has a claim brought against them for termination, should fairly be taken into account before it makes a termination decision 1 . This is called “equitable set-off”.
An equitable set-off is a closely linked and “interdependent” claim by the tenant: “a claim which so affects the [landlord’s] claim that it would be unjust to allow the [landlord] to have judgment without bringing the cross-claim to account” 2
After careful consideration I do not consider the matters raised by Mr Kirby are the type of “closely linked” claim or issue that should fairly be taken into consideration before making a termination decision. Mr Kirby has said none of the matters he raised are the cause of or associated with why he has not paid his rent. Unfortunately his supply of work reduced and he has since been made redundant. The rent is currently over 16 weeks in arrears and was a further 4 weeks in arrears before the Ministry of Social Development assisted with a lump sum payment last week.
Mr Kirby has not raised these matters with the landlord to date and has not filed a counter claim. I have considered whether these matters lead to an equitable set- off. I am satisfied that the extent of arrears is such that this principle does not have any application in this case and does not arise. 1 O’Shea v Brown HC Auckland, AP110-PL01, 14 December 2001 2 Grant v NZMC Ltd [1989] 1 NZLR 8 (CA) at 12-13.
This does not deny Mr Kirby from pursuing an application with the Tribunal.
For the reasons set out above the tenancy is terminated. The landlord has agreed to the tenancy ending o the date and time shown above. It was agreed that the keys would be left with another tenant in the premises, as discussed in the hearing.
The tenancy is terminated.

How much rent is owing?

The landlord provided rent records which prove the amount owing to the end of this rent week. The sum awarded takes into account the MSD payment made last week. The landlord debited $190.00 for power/gas from the rent (see line 68 of the rent summary). The landlord is not able to record any items such as this on the rent summary; it is only for to record rent owing and rent paid. I have credited this sum in determining the amount awarded.
Th rent arrears awarded are to the end of this rent week. Mr Kirby is liable for rent to the end of the tenancy or until an earlier date if he vacates earlier and the landlord agrees the tenancy can end earlier than 12 May. Other matters claimed:
The landlord’s claims for the removal of the tenant’s goods from the garage and that he garaged is damaged were not considered at today’s hearing. These are matters which may be addressed by the tenant before the tenancy ends. In the event that they are not, they are better dealt with by way of a separate application once the tenancy has ended.
As the landlord has been successful in its claim I have the reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4855670 — net $4,895.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 28 April 2024	$5,955.00	Rent arrears to 28 April 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,895.44
Total payable by Tenant to Landlord	$4,895.44

Order

The tenancy of Steven Patrick Bruce Kirby at 12 Alker Road, Chartwell, Hamilton 3210 is terminated, and possession is granted to Faith Christie Viva-Marco and Louis Marco, at 11.59pm on Sunday 12 May 2024
The Bond Centre is to pay the bond of $1,080.00 (6523976-018) to Faith Christie Viva-Marco and Louis Marco immediately.
Steven Patrick Bruce Kirby must pay Faith Christie Viva-Marco and Louis Marco $4,895.44 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond. The landlord has also applied for removal of the tenant’s goods from the garage and that the garaged is damaged.
Mr Kirby’s tenancy consists of the master bedroom and ensuite, and use of the garage along with communal facilities. The landlord has separate rental agreements for tenants in each of the other three bedrooms, and personally uses a separate lounge room to run a clinic in from time to time.

Should the tenancy be terminated?

The Residential Tenancies Act 1986 (RTA) provides that the Tribunal must make an order terminating the tenancy if is satisfied that at the date of the application rent was at least 21 days in arrears. See section 55(1)(a), RTA.
I am satisfied from the rent records provided by the landlord that rent was at least 21 days in arrears on the date the application was filed.
The tenant raised at the hearing issues relating to breach of his right to privacy (the landlord using a room at the premises to run a clinic and being there until late at night, and sometimes staying in the room; surveillance cameras inside the premises that were working for at least part of the tenancy; the ;landlord discussing his rent arrears with other tenants), and the landlord entering the premises without giving the required notice (to use the clinic, and to show prospective tenants through the property).
The Tribunal must consider whether any matters raised by a tenant, who has a claim brought against them for termination, should fairly be taken into account before it makes a termination decision 1 . This is called “equitable set-off”.
An equitable set-off is a closely linked and “interdependent” claim by the tenant: “a claim which so affects the [landlord’s] claim that it would be unjust to allow the [landlord] to have judgment without bringing the cross-claim to account” 2
After careful consideration I do not consider the matters raised by Mr Kirby are the type of “closely linked” claim or issue that should fairly be taken into consideration before making a termination decision. Mr Kirby has said none of the matters he raised are the cause of or associated with why he has not paid his rent. Unfortunately his supply of work reduced and he has since been made redundant. The rent is currently over 16 weeks in arrears and was a further 4 weeks in arrears before the Ministry of Social Development assisted with a lump sum payment last week.
Mr Kirby has not raised these matters with the landlord to date and has not filed a counter claim. I have considered whether these matters lead to an equitable set- off. I am satisfied that the extent of arrears is such that this principle does not have any application in this case and does not arise. 1 O’Shea v Brown HC Auckland, AP110-PL01, 14 December 2001 2 Grant v NZMC Ltd [1989] 1 NZLR 8 (CA) at 12-13.
This does not deny Mr Kirby from pursuing an application with the Tribunal.
For the reasons set out above the tenancy is terminated. The landlord has agreed to the tenancy ending o the date and time shown above. It was agreed that the keys would be left with another tenant in the premises, as discussed in the hearing.
The tenancy is terminated.

How much rent is owing?

The landlord provided rent records which prove the amount owing to the end of this rent week. The sum awarded takes into account the MSD payment made last week. The landlord debited $190.00 for power/gas from the rent (see line 68 of the rent summary). The landlord is not able to record any items such as this on the rent summary; it is only for to record rent owing and rent paid. I have credited this sum in determining the amount awarded.
Th rent arrears awarded are to the end of this rent week. Mr Kirby is liable for rent to the end of the tenancy or until an earlier date if he vacates earlier and the landlord agrees the tenancy can end earlier than 12 May. Other matters claimed:
The landlord’s claims for the removal of the tenant’s goods from the garage and that he garaged is damaged were not considered at today’s hearing. These are matters which may be addressed by the tenant before the tenancy ends. In the event that they are not, they are better dealt with by way of a separate application once the tenancy has ended.
As the landlord has been successful in its claim I have the reimbursed the filing fee.

Tenancy Tribunal case 4855670 — Rent arrears at 12 Alker Road, Chartwell, Hamilton 3210

At a glance

Tenancy Tribunal case 4855670 — Rent arrears at 12 Alker Road, Chartwell, Hamilton 3210

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

How much rent is owing?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

How much rent is owing?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions