What was the outcome of Tenancy Tribunal case 4928275?

The tribunal order states: There has not been an application for suppression in this matter and no

How much money was awarded in case 4928275?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $2,365.10 awarded to landlord; Rubbish Removal: $1,764.70 awarded to landlord; Water Rates: $3,041.02 awarded to landlord

What type of tenancy dispute was case 4928275?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4928275?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11189876-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4928275?

The tribunal order states: There has not been an application for suppression in this matter and no

How much money was awarded in case 4928275?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $2,365.10 awarded to landlord; Rubbish Removal: $1,764.70 awarded to landlord; Water Rates: $3,041.02 awarded to landlord

What type of tenancy dispute was case 4928275?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4928275?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11189876-Tenancy_Tribunal_Order.pdf.

24 Seon Place, Birkdale, Auckland 0626 Tenancy Tribunal Case 4928275 — Rent arrears

Claims and awards in Tenancy Tribunal application 4928275 — net $7,197.82 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 10 June 2024 reduced by one third	$2,365.10	Rent arrears to 10 June 2024 reduced by one third
Water rates to 10 June 2024 reduced by one third	$3,041.02	Water rates to 10 June 2024 reduced by one third
Rubbish removal	$1,764.70	Rubbish removal
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$7,197.82
Total payable by Tenant to Landlord	$7,197.82

Order

There has not been an application for suppression in this matter and no suppression orders apply to the publication of this Order.
Jocelyn Hawken must pay Jambek Limited $7,197.82 immediately, calculated as shown in the table below:

Reasons

Ms Warren, shareholder of the landlord, and Mr May, director and shareholder of the landlord, attended the hearing for the landlord. The tenant did not attend the hearing. The tenant has not communicated with the Tribunal as to why she would not attend the hearing. The hearing proceeded in the tenant’s absence.
The landlord has applied for rent arrears, water arrears, compensation and reimbursement of the filing fee following the end of the tenancy.

How much does the tenant owe for rent and water arrears?

The tenancy started on 16 September 2019 and ended on 10 June 2024. The landlord has provided rent records in the form of a rent ledger showing that the tenant was in continuous rent arrears from 26 October 2020 until the end of the tenancy. The landlord has also provided a ledger of water consumption charges showing that the tenant was in water arrears for the duration of the tenancy.
The records show that at the end of the tenancy, the tenant’s rent arrears, after deduction of the bond which has been paid to the landlord, were $3,530.00 and the water arrears were $4,538.84.
I have awarded $2,365.10 in rent arrears and $3041.02 for water arrears. My reasons for reducing the amount of arrears owed by one third is set out below. The law as to mitigation of loss:
Landlords have a duty to mitigate their losses. Section 49 of the Residential Tenancies Act 1986 (RTA) provides: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The landlord’s obligation is to take all reasonable steps to mitigate his losses. 1 In the District Court decision of David Huang v Carne Ashworth [2024] NZDC 15726 [3 July 2024], Judge NJ Sainsbury held that where the issue is significant rent arrears, mitigation can include terminating the tenancy: ... where the tenant fails to pay rent owing, there is an obligation the landlord to mitigate the loss. This can be achieved by not allowing the arrears to continue to accrue, instead ending the tenancy and reletting the premises thereby preventing ongoing loss.
Section 55(1)(a) of the RTA provides that where rent is 21 days in arrears, the landlord may apply to the Tribunal to end the tenancy. The landlord could have applied to the Tribunal to terminate the tenancy as early as November 2020. 1 See British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689.
It is also possible to terminate a tenancy on application to the Tribunal for other breaches of the tenancy agreement. Section 56 of the RTA provides: (1) On an application made to it under this section by the landlord or the tenant, the Tribunal may make an order terminating the tenancy if the Tribunal is satisfied that— (a) the other party has committed a breach of any of the provisions of the tenancy agreement (including provisions relating to the payment of rent) or of this Act; and (b)in the case of a breach capable of remedy,— (i) the applicant gave to the other party a notice specifying the nature of the breach complained of and requiring the other party to remedy the breach within a reasonable period, being not less than 14 days commencing with the day on which the notice was given; and (ii)the other party failed to remedy the default within the required period; and (c)that the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.

Did the landlord take sufficient steps to mitigate its losses?

The landlord did take steps to recover the rent and water arrears. From 27 December 2022, it issued six 14-day notices to remedy in accordance with section 56(1)(b)(i) of the RTA. However, the tenant remained in rent and water arrears.
The landlord says it did not apply to the Tribunal to terminate the tenancy because they wanted to help the tenant. The landlord also says that they thought the tenant’s parents would assist with payment of the rent arrears. The landlord says that the tenant’s mother provided a written guarantee. However, the landlord has been unable to locate this document.
In David Huang v Carne Ashworth, Judge NJ Sainsbury decided that landlord had failed to mitigate his losses and said: [w]here a tenant repeatedly breaches promises to make up arrears and instead additional arears are incurred there comes a point when it is being naïve or careless to your owner interest to persist given the tenant more time to pay.
This is a situation where the tenant repeatedly failed to comply with the 14-day notices. In my view, the landlord has not acted reasonably to mitigate its losses. As a result, the landlord has incurred losses which would have been avoidable otherwise.
I have decided that rent and water arrears should be reduced by one third to reflect the failure to mitigate. In reaching this decision, I have considered the amount of the arrears, the fact that the tenant was in continuous rent arrears for over 3.5 years and the steps the landlord took to try to recover the arrears.

Did the tenant comply with her obligations at the end of the tenancy?

Section 40(1)(e)(ii)-(v) of the RTA provides that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The tenancy ended because the house was destroyed by a fire. The landlord is claiming the cost to remove the tenant’s belongings from the premises. The landlord advises that it gave the tenant an opportunity to collect her belongings. However, she did not do so.
The landlord obtained a cost estimate for disposal of the tenant’s belongings of $3,735.29 (including GST). The landlord explained that the work was not carried out as a separate job. Instead, the landlord says that the tenant’s belongings, with the tenant’s permission, were removed as part of the demolition process.
The landlord says that insurance did not cover any demolition costs. The landlord says the cost to remove the tenant’s premises would have been more than the cost estimate.
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
At the hearing, the landlord provided a video showing the tenant’s belongings left inside the remains of the premises. The cost estimate for removing the tenant’s property provides: There is extensive material both within the house and within the yard area ranging from old spa pools 10s of old bikes car parts and even a trampoline. From inside there is significant damaged and abandoned amount of clothes and residential furniture. It must be noted that this property has a significant amount of material to be disposed of is in the top 10 percentile.
The landlord has not provided any invoices or insurance reports to support its assertion that the amount they are seeking reflects the actual cost incurred.
I accept the landlord’s evidence that there was an additional cost to remove the tenant’s property and that insurance did not cover this cost. However, I am not satisfied that the cost to the remove the tenant’s property was the amount of cost estimate.
I award $1,764.70 (inclusive of GST) for this claim. Filing fee:
Jambek Limited has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee.

Claims and awards in Tenancy Tribunal application 4928275 — net $7,197.82 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 10 June 2024 reduced by one third	$2,365.10	Rent arrears to 10 June 2024 reduced by one third
Water rates to 10 June 2024 reduced by one third	$3,041.02	Water rates to 10 June 2024 reduced by one third
Rubbish removal	$1,764.70	Rubbish removal
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$7,197.82
Total payable by Tenant to Landlord	$7,197.82

Order

There has not been an application for suppression in this matter and no suppression orders apply to the publication of this Order.
Jocelyn Hawken must pay Jambek Limited $7,197.82 immediately, calculated as shown in the table below:

Reasons

Ms Warren, shareholder of the landlord, and Mr May, director and shareholder of the landlord, attended the hearing for the landlord. The tenant did not attend the hearing. The tenant has not communicated with the Tribunal as to why she would not attend the hearing. The hearing proceeded in the tenant’s absence.
The landlord has applied for rent arrears, water arrears, compensation and reimbursement of the filing fee following the end of the tenancy.

How much does the tenant owe for rent and water arrears?

The tenancy started on 16 September 2019 and ended on 10 June 2024. The landlord has provided rent records in the form of a rent ledger showing that the tenant was in continuous rent arrears from 26 October 2020 until the end of the tenancy. The landlord has also provided a ledger of water consumption charges showing that the tenant was in water arrears for the duration of the tenancy.
The records show that at the end of the tenancy, the tenant’s rent arrears, after deduction of the bond which has been paid to the landlord, were $3,530.00 and the water arrears were $4,538.84.
I have awarded $2,365.10 in rent arrears and $3041.02 for water arrears. My reasons for reducing the amount of arrears owed by one third is set out below. The law as to mitigation of loss:
Landlords have a duty to mitigate their losses. Section 49 of the Residential Tenancies Act 1986 (RTA) provides: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The landlord’s obligation is to take all reasonable steps to mitigate his losses. 1 In the District Court decision of David Huang v Carne Ashworth [2024] NZDC 15726 [3 July 2024], Judge NJ Sainsbury held that where the issue is significant rent arrears, mitigation can include terminating the tenancy: ... where the tenant fails to pay rent owing, there is an obligation the landlord to mitigate the loss. This can be achieved by not allowing the arrears to continue to accrue, instead ending the tenancy and reletting the premises thereby preventing ongoing loss.
Section 55(1)(a) of the RTA provides that where rent is 21 days in arrears, the landlord may apply to the Tribunal to end the tenancy. The landlord could have applied to the Tribunal to terminate the tenancy as early as November 2020. 1 See British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689.
It is also possible to terminate a tenancy on application to the Tribunal for other breaches of the tenancy agreement. Section 56 of the RTA provides: (1) On an application made to it under this section by the landlord or the tenant, the Tribunal may make an order terminating the tenancy if the Tribunal is satisfied that— (a) the other party has committed a breach of any of the provisions of the tenancy agreement (including provisions relating to the payment of rent) or of this Act; and (b)in the case of a breach capable of remedy,— (i) the applicant gave to the other party a notice specifying the nature of the breach complained of and requiring the other party to remedy the breach within a reasonable period, being not less than 14 days commencing with the day on which the notice was given; and (ii)the other party failed to remedy the default within the required period; and (c)that the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.

Did the landlord take sufficient steps to mitigate its losses?

The landlord did take steps to recover the rent and water arrears. From 27 December 2022, it issued six 14-day notices to remedy in accordance with section 56(1)(b)(i) of the RTA. However, the tenant remained in rent and water arrears.
The landlord says it did not apply to the Tribunal to terminate the tenancy because they wanted to help the tenant. The landlord also says that they thought the tenant’s parents would assist with payment of the rent arrears. The landlord says that the tenant’s mother provided a written guarantee. However, the landlord has been unable to locate this document.
In David Huang v Carne Ashworth, Judge NJ Sainsbury decided that landlord had failed to mitigate his losses and said: [w]here a tenant repeatedly breaches promises to make up arrears and instead additional arears are incurred there comes a point when it is being naïve or careless to your owner interest to persist given the tenant more time to pay.
This is a situation where the tenant repeatedly failed to comply with the 14-day notices. In my view, the landlord has not acted reasonably to mitigate its losses. As a result, the landlord has incurred losses which would have been avoidable otherwise.
I have decided that rent and water arrears should be reduced by one third to reflect the failure to mitigate. In reaching this decision, I have considered the amount of the arrears, the fact that the tenant was in continuous rent arrears for over 3.5 years and the steps the landlord took to try to recover the arrears.

Did the tenant comply with her obligations at the end of the tenancy?

Section 40(1)(e)(ii)-(v) of the RTA provides that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The tenancy ended because the house was destroyed by a fire. The landlord is claiming the cost to remove the tenant’s belongings from the premises. The landlord advises that it gave the tenant an opportunity to collect her belongings. However, she did not do so.
The landlord obtained a cost estimate for disposal of the tenant’s belongings of $3,735.29 (including GST). The landlord explained that the work was not carried out as a separate job. Instead, the landlord says that the tenant’s belongings, with the tenant’s permission, were removed as part of the demolition process.
The landlord says that insurance did not cover any demolition costs. The landlord says the cost to remove the tenant’s premises would have been more than the cost estimate.
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
At the hearing, the landlord provided a video showing the tenant’s belongings left inside the remains of the premises. The cost estimate for removing the tenant’s property provides: There is extensive material both within the house and within the yard area ranging from old spa pools 10s of old bikes car parts and even a trampoline. From inside there is significant damaged and abandoned amount of clothes and residential furniture. It must be noted that this property has a significant amount of material to be disposed of is in the top 10 percentile.
The landlord has not provided any invoices or insurance reports to support its assertion that the amount they are seeking reflects the actual cost incurred.
I accept the landlord’s evidence that there was an additional cost to remove the tenant’s property and that insurance did not cover this cost. However, I am not satisfied that the cost to the remove the tenant’s property was the amount of cost estimate.
I award $1,764.70 (inclusive of GST) for this claim. Filing fee:
Jambek Limited has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee.

Tenancy Tribunal case 4928275 — Rent arrears at 24 Seon Place, Birkdale, Auckland 0626

At a glance

Tenancy Tribunal case 4928275 — Rent arrears at 24 Seon Place, Birkdale, Auckland 0626

At a glance

Award balance

Claims & awards

Order

Reasons

How much does the tenant owe for rent and water arrears?

Did the landlord take sufficient steps to mitigate its losses?

Did the tenant comply with her obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much does the tenant owe for rent and water arrears?

Did the landlord take sufficient steps to mitigate its losses?

Did the tenant comply with her obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions