What was the outcome of Tenancy Tribunal case 4893142?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4893142?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4893142?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4893142?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11193093-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4893142?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4893142?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4893142?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4893142?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11193093-Tribunal_Order.pdf.

122 Fred Taylor Drive, Westgate, Auckland 0814 Tenancy Tribunal Case 4893142 — Rent arrears

Order

The application is dismissed.

Reasons

Both parties attended the hearing. Alice Zhang and Willa Zhao attended on behalf of the landlord.
The applicant is required to establish the claim to the civil law standard of proof, that is, on the balance of probabilities. Balance of probabilities means “more likely than not”. In reaching this standard the applicant may produce corroborating information including witnesses, written documents and photographs in support.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, this means that; ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
The applicant and the respondent signed a three-month fixed-term tenancy on 23 April 2023. At the end of the fixed term (23 July 2023), the tenancy rolled over into a periodic tenancy.
The tenants fell into rent arrears and the landlord made an application to Tenancy Services that went to mediation on 11 September 2023. Rent arrears was ordered against Mr MacPherson.
Mr MacPherson breached the terms of the Mediated Order and on 28 November 2023 the bailiff attended 122 Fred Taylor Drive, Westgate and evicted Mr MacPherson. The tenancy ended at this point pursuant to clause 5(a) of the Mediated Order: “the tenancy shall end immediately”.
Mr MacPherson needed a place to live. The landlord agreed that if Mr MacPherson cleared the arrears, which was in the vicinity of $13,000.00 they were prepared to give Mr MacPherson another tenancy. To clear the arrears Mr MacPherson needed the assistance of Work and Income New Zealand (“WINZ”). To get the assistance of WINZ, Mr MacPherson needed new flatmates and a letter from the landlord.
Mr MacPherson found new flatmates and got his letter from the landlord which he took to WINZ; WINZ cleared the arrears.
Mr MacPherson then went to the landlord’s office but wasn’t given the keys because rent-in-advance for the tenancy had not been paid. No new tenancy agreement was produced. Mr MacPherson paid his share of the rent, and his two flatmates also paid two weeks rent. However, together they were unable to fully pay off the “rent arrears” that the landlord said was already owing.
Mr MacPherson says his belongings were locked inside the premises, but he never moved back in. When his prospective flatmates saw the difficulties he was having, they decided to find somewhere else to live.
Mr MacPherson says he went to the landlord’s office several times because he was paying his share of the rent through WINZ, and he wanted to take possession of the premises. Mr MacPherson says he never received the keys to the property after the bailiff attended on 28 November 2023, and he never signed a new tenancy agreement.
Ms Zhang for the landlord stated that she went to the premises several times and there were clearly people living there, although she says she never saw Mr MacPherson at the premises after the bailiff attended on 28 November 2023.
Ms Zhang also stated that she considered there was a tenancy agreement in place, albeit not in writing, because Mr MacPherson continued to pay rent, and Mr MacPherson continued to ask for letters that he could take to WINZ to get their support for paying the rent.
Ms Zhang stated that she considered Mr MacPherson’s tenancy to be a continuation of the previous tenancy agreement.
The landlord filed an application with Tenancy Services on 14 February 2024 for rent arrears against Mr MacPherson for the “continuation” of the tenancy. The original tenancy agreement which had been terminated was included as the tenancy agreement.
Mr MacPherson was served notice of the application and the hearing date by email. Under the Residential Tenancies Act, 1986 section 91, service by email is sufficient service if the application is made within two months of the tenancy coming to an end.
Because the tenancy had ended more almost four months earlier, service by email was not sufficient for lawful service at this stage. However because Mr MacPherson had not been correctly served notice of the hearing and did not attend the hearing, his version of events was not put before the adjudicator, the landlord’s information about the tenancy was accepted at face value, and in his absence on 12 April 2024, Mr MacPherson was ordered to pay $8,228.57 rent arrears (NZTT 4807561).
I note that it appears the adjudicator of that decision was not informed that the original tenancy, for which the landlord had submitted a tenancy agreement, had been terminated by the enforcement of the Mediated Order, by the bailiff.
On 20 May 2024 the landlord filed this current application for damages of $17,882.25 that were caused to the property between 28 November 2023 and 27 March 2024.
This application was first scheduled for 3 September 2024. I adjourned the application and issued an order giving the applicant a further opportunity to provide corroborating information regarding any purported tenancy involving Mr MacPherson following the end of the original tenancy on 28 November 2023.
No further information has been produced.
Mr MacPherson states that he never received the keys to the property and he was not living at the property at all in this period.
The landlord has not provided any information that indicates to me that it is more likely than not that Mr MacPherson was one of the people living at the address during this period.
As already stated, the original tenancy was terminated on 28 November 2023 when the bailiff evicted the tenants as is provided for in clause 5(a) of the Mediated Order from 11 September 2023. No new tenancy agreement in the name of Scott John MacPherson for 122 Fred Taylor Drive, Westgate was signed or came into being.
Because Mr MacPherson was not a tenant at 122 MacPherson Drive, Westgate after 28 November 2023, I determine that he is not liable for the damages that the landlord is claiming in this application.
On the basis of my findings above, Mr MacPherson may wish to consider filing an out of time application for a rehearing of application NZTT 4807561 regarding the $8,228.57 rent arrears that has been ordered against him.

Order

The application is dismissed.

Reasons

Both parties attended the hearing. Alice Zhang and Willa Zhao attended on behalf of the landlord.
The applicant is required to establish the claim to the civil law standard of proof, that is, on the balance of probabilities. Balance of probabilities means “more likely than not”. In reaching this standard the applicant may produce corroborating information including witnesses, written documents and photographs in support.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, this means that; ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
The applicant and the respondent signed a three-month fixed-term tenancy on 23 April 2023. At the end of the fixed term (23 July 2023), the tenancy rolled over into a periodic tenancy.
The tenants fell into rent arrears and the landlord made an application to Tenancy Services that went to mediation on 11 September 2023. Rent arrears was ordered against Mr MacPherson.
Mr MacPherson breached the terms of the Mediated Order and on 28 November 2023 the bailiff attended 122 Fred Taylor Drive, Westgate and evicted Mr MacPherson. The tenancy ended at this point pursuant to clause 5(a) of the Mediated Order: “the tenancy shall end immediately”.
Mr MacPherson needed a place to live. The landlord agreed that if Mr MacPherson cleared the arrears, which was in the vicinity of $13,000.00 they were prepared to give Mr MacPherson another tenancy. To clear the arrears Mr MacPherson needed the assistance of Work and Income New Zealand (“WINZ”). To get the assistance of WINZ, Mr MacPherson needed new flatmates and a letter from the landlord.
Mr MacPherson found new flatmates and got his letter from the landlord which he took to WINZ; WINZ cleared the arrears.
Mr MacPherson then went to the landlord’s office but wasn’t given the keys because rent-in-advance for the tenancy had not been paid. No new tenancy agreement was produced. Mr MacPherson paid his share of the rent, and his two flatmates also paid two weeks rent. However, together they were unable to fully pay off the “rent arrears” that the landlord said was already owing.
Mr MacPherson says his belongings were locked inside the premises, but he never moved back in. When his prospective flatmates saw the difficulties he was having, they decided to find somewhere else to live.
Mr MacPherson says he went to the landlord’s office several times because he was paying his share of the rent through WINZ, and he wanted to take possession of the premises. Mr MacPherson says he never received the keys to the property after the bailiff attended on 28 November 2023, and he never signed a new tenancy agreement.
Ms Zhang for the landlord stated that she went to the premises several times and there were clearly people living there, although she says she never saw Mr MacPherson at the premises after the bailiff attended on 28 November 2023.
Ms Zhang also stated that she considered there was a tenancy agreement in place, albeit not in writing, because Mr MacPherson continued to pay rent, and Mr MacPherson continued to ask for letters that he could take to WINZ to get their support for paying the rent.
Ms Zhang stated that she considered Mr MacPherson’s tenancy to be a continuation of the previous tenancy agreement.
The landlord filed an application with Tenancy Services on 14 February 2024 for rent arrears against Mr MacPherson for the “continuation” of the tenancy. The original tenancy agreement which had been terminated was included as the tenancy agreement.
Mr MacPherson was served notice of the application and the hearing date by email. Under the Residential Tenancies Act, 1986 section 91, service by email is sufficient service if the application is made within two months of the tenancy coming to an end.
Because the tenancy had ended more almost four months earlier, service by email was not sufficient for lawful service at this stage. However because Mr MacPherson had not been correctly served notice of the hearing and did not attend the hearing, his version of events was not put before the adjudicator, the landlord’s information about the tenancy was accepted at face value, and in his absence on 12 April 2024, Mr MacPherson was ordered to pay $8,228.57 rent arrears (NZTT 4807561).
I note that it appears the adjudicator of that decision was not informed that the original tenancy, for which the landlord had submitted a tenancy agreement, had been terminated by the enforcement of the Mediated Order, by the bailiff.
On 20 May 2024 the landlord filed this current application for damages of $17,882.25 that were caused to the property between 28 November 2023 and 27 March 2024.
This application was first scheduled for 3 September 2024. I adjourned the application and issued an order giving the applicant a further opportunity to provide corroborating information regarding any purported tenancy involving Mr MacPherson following the end of the original tenancy on 28 November 2023.
No further information has been produced.
Mr MacPherson states that he never received the keys to the property and he was not living at the property at all in this period.
The landlord has not provided any information that indicates to me that it is more likely than not that Mr MacPherson was one of the people living at the address during this period.
As already stated, the original tenancy was terminated on 28 November 2023 when the bailiff evicted the tenants as is provided for in clause 5(a) of the Mediated Order from 11 September 2023. No new tenancy agreement in the name of Scott John MacPherson for 122 Fred Taylor Drive, Westgate was signed or came into being.
Because Mr MacPherson was not a tenant at 122 MacPherson Drive, Westgate after 28 November 2023, I determine that he is not liable for the damages that the landlord is claiming in this application.
On the basis of my findings above, Mr MacPherson may wish to consider filing an out of time application for a rehearing of application NZTT 4807561 regarding the $8,228.57 rent arrears that has been ordered against him.

Tenancy Tribunal case 4893142 — Rent arrears at 122 Fred Taylor Drive, Westgate, Auckland 0814

At a glance

Tenancy Tribunal case 4893142 — Rent arrears at 122 Fred Taylor Drive, Westgate, Auckland 0814

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions