How much money was awarded in case 4933182?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4933182?

The dispute type was not classified.

Where can I read the official tribunal order for case 4933182?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10900696-Tenancy_Tribunal_Order.pdf.

How much money was awarded in case 4933182?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4933182?

The dispute type was not classified.

Where can I read the official tribunal order for case 4933182?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10900696-Tenancy_Tribunal_Order.pdf.

58 Old Barn Road, Opaheke, RD 4, Papakura 2584 Tenancy Tribunal Case 4933182 — Tenancy dispute

Q: What was the outcome of Tenancy Tribunal case 4933182?

The tribunal order states: By way of declaration, that the residential tenancy agreement purported to be

Order

By way of declaration, that the residential tenancy agreement purported to be in place between FCT Ttrustee Limited (as landlord) and Glenn Michael Soroka and Mark Brumby (as tenants) in respect of the residential premises at 58 Old Barn Road, Opaheke, RD 4, Papakura 2584 is invalid ab initio.
Further, by way of declaration, that any future tenancy agreement in relation to 58 Old Barn Road, Opaheke, RD 4, Papakura 2584 entered into or produced by Glenn Michael Soroka, or any company, trust or entity which he is or purports to be involved in, or any other façade Mr Soroka operates under, without the consent of Secure Funding Limited and the Liquidators of Flying Cross Trust Limited, from the date of the commencement of Liquidation on 15 July 2022 to the date the present mortgage is discharged, is void ab initio.

Reasons

Both parties attended the hearing by phone. The landlord is legally represented.
The applicant Secure Funding Limited seeks an order to invalidate a tenancy agreement purportedly entered into between “FCT Ttrustee Limilted” as landlord and Glenn Michael Soroka and Mark Brumby (‘as respondents’) as tenant on either 1 April 2024 or 30 May 2024.
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 (or ‘FCT Ttrustee Limited’ as actually spelt/stated on the tenancy agreement) as landlord and the respondents 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 (‘the 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 to the Mortgagee.
While the Property was not delivered vacant on 19 December 2023, counsel for the Mortgagee confirms that possession of the Property has now been taken by the Mortgagee and Mr Soroka informed the Tribunal at the hearing that he has since been trespassed from the Property and is no longer in possession of the Property.
Mr Soroka’s reference to the judgment of Venning J in Soroka and Flying Cross Trust Limited v Meredith [2023] NZHC 2510 of 6 September 2023 is ultimately of no moment.
While the liquidators of FTCL accept that the liquidation of FCTL means it is no longer a trustee of the FCT, Venning J ultimately dismissed all of Mr Soroka’s interlocutory applications, including for the declaration sought by Mr Soroka that that FCTL is no longer a trustee of the FCT.
Venning J held at [44] that even if Mr Soroka has the ability as settlor under the Trust Deed to appoint a new trustee that does not address the issue of FCTL’s position as bare trustee nor its rights of indemnity and subrogation in relation to its costs and creditors.
Materially, there is nothing from the judgment of Venning J in Soroka and Flying Cross Trust Limited v Meredith that affects the High Court Order in CIV-2023- 404-2404 issued on 12 December 2023 granting possession of the Property to the Mortgagee and ordering the Mortgagor, and Messrs Soroka and Kerr, to deliver up vacant possession of the Property to the Mortgagee.
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 first purported Tenancy Agreement’), dated 28 September 2023 and 28 September 2024.
The Mortgagee was not aware of the first 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 first purported Tenancy Agreement prior to Mr Soroka presenting it to the Mortgagee on 20 February 2024.
On 11 June 2024, I accepted the Mortgagee’s position in Tribunal application 4849360 that the first 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 found that the first 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 first 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 first purported Tenancy Agreement is not valid or binding for that reason alone. e. Further, the Liquidators did not and do not consent to the first 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 first 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 first 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 first 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 first 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 first purported Tenancy Agreement, nor had knowledge of the same until Mr Soroka provided the first purported Tenancy Agreement on 20 February 2024. j. The first 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 first 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 first purported Tenancy Agreement. l. For the above reasons, it was clear that the first 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.
Following receipt of my Order of 26 June 2024 under Tribunal application 4849360, the Mortgagee requested that the bailiff take possession of the Property and it did so on 27 June 2024.
Prior to taking possession, on the afternoon of 26 June 2024 Mr Soroka filed an application in respect of the High Court proceeding which included a new tenancy agreement between “FCT Ttrustee Limilted” as landlord, and Mark Brumby and Mr Soroka as tenants (‘the second purported Tenancy Agreement’).
From the dates of the document, the second purported Tenancy Agreement was entered into on 1 April 2024 or 30 May 2024.
Again, neither the Mortgagee nor the Liquidators were aware of the second purported Tenancy Agreement prior to Mr Soroka providing it in his application on 26 June 2024 and did not consent to it.
This is a similar circumstance to how the second purported Tenancy Agreement was presented to the Mortgagee in respect of application 4849360.
As with the first purported Tenancy Agreement in application 4849360, I find the second purported Tenancy Agreement is invalid for the same reasons as set out in [24] above.
FCT Trustee Limited is not the registered owner of, nor has any interest in, the Property. FCT Trustee Limited therefore has no ability to enter into agreements in relation to the Property and the second purported Tenancy Agreement is not valid or binding for that reason alone.
In taking possession of the Property, the Mortgagee relied on the judgment of the High Court dated 12 December 2023.
The Mortgagor and the Mortgagee are the only entities who have rights over the Property.
Those rights were transferred to the Liquidators when the Mortgagor was placed into liquidation.
The Liquidators did not and do not consent to the second purported Tenancy Agreement.
As above, the registered owner/Mortgagor has been in liquidation since July 2022 (i.e. around 21 months prior to the purported execution of the second purported Tenancy Agreement in April or May 2024).
This is not the first time Mr Soroka and his associated parties have created a dubious tenancy agreement.
Presently, the Mortgagee are faced with the second purported Tenancy Agreement. It is clear that Mr Soroka is attempting to interfere with the Mortgagee's rights and entitlements in relation to the Property.
I agree with counsel for the Mortgagee that they should not be continually prejudiced and prevented from exercising their entitlements to the Property every time an invalid tenancy agreement is devised and presented.
Since the date of my order of 26 June 2024, no material circumstances have changed in relation to the Liquidator’s or Mortgagee’s entitlement to the Property. It remains that FCT Trustee Limited has no right to enter a tenancy agreement as landlord concerning the Property, or in any other regard without the consent of the Liquidators or the Mortgagee.
The facts in this case concerning the second purported Tenancy Agreement 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 for a declaration that the second purported Tenancy Agreement is invalid ab initio.
As for the second order sought by the Mortgagee for any further tenancy agreement purportedly entered into in respect of the Property without the consent of the Liquidators and the Mortgagee is void ab initio, I consider it appropriate that the scope of the declaration should be narrowed to only apply to Mr Soroka and any company, trust or entity which he is or purports to be involved in, or any other façade Mr Soroka may choose to operate under in the future.
I consider that this would allay concerns of the scope of the order being too wide resulting in the automatic invalidation of potentially valid tenancy agreements.
I agree with counsel for the Mortgagee that despite the second purported Tenancy Agreement being a clearly fabricated document, its mere existence has the potential to jeopardize that sale of the Property because s 58(1)(a) of the RTA provides a tenancy shall continue, even when a mortgagee has become entitled to possession in the premises.
For the avoidance of doubt, any attempted shackle that Mr Soroka and any company, trust or entity which he is or purports to be involved in, or any other façade Mr Soroka may choose to operate under in the future by way of a device similar to the first purported Tenancy Agreement and second purported Tenancy Agreement can be avoided following application of the ratio in Chen v Prasad and CRW Trust [2012] NZHC 1404. In a case where the mortgagee has not 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 survives the transfer to the new purchasers of the property.
Consequently, it is necessary for the second order in the nature of a declaration to be issued that any future tenancy agreement in relation to the Property entered into or produced by Mr Soroka, or any company, trust or entity which he is or purports to be involved in, or any other façade Mr Soroka operates, without the consent of the Mortgagee and the Liquidators of the Mortgagor, from the date of the commencement of Liquidation to the date the present mortgage is discharged, is also void ab initio.

Order

By way of declaration, that the residential tenancy agreement purported to be in place between FCT Ttrustee Limited (as landlord) and Glenn Michael Soroka and Mark Brumby (as tenants) in respect of the residential premises at 58 Old Barn Road, Opaheke, RD 4, Papakura 2584 is invalid ab initio.

Further, by way of declaration, that any future tenancy agreement in relation to 58 Old Barn Road, Opaheke, RD 4, Papakura 2584 entered into or produced by Glenn Michael Soroka, or any company, trust or entity which he is or purports to be involved in, or any other façade Mr Soroka operates under, without the consent of Secure Funding Limited and the Liquidators of Flying Cross Trust Limited, from the date of the commencement of Liquidation on 15 July 2022 to the date the present mortgage is discharged, is void ab initio.

Reasons

Both parties attended the hearing by phone. The landlord is legally represented.

The applicant Secure Funding Limited seeks an order to invalidate a tenancy agreement purportedly entered into between “FCT Ttrustee Limilted” as landlord and Glenn Michael Soroka and Mark Brumby (‘as respondents’) as tenant on either 1 April 2024 or 30 May 2024.

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 (or ‘FCT Ttrustee Limited’ as actually spelt/stated on the tenancy agreement) as landlord and the respondents 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 (‘the 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 to the Mortgagee.

While the Property was not delivered vacant on 19 December 2023, counsel for the Mortgagee confirms that possession of the Property has now been taken by the Mortgagee and Mr Soroka informed the Tribunal at the hearing that he has since been trespassed from the Property and is no longer in possession of the Property.

Mr Soroka’s reference to the judgment of Venning J in Soroka and Flying Cross Trust Limited v Meredith [2023] NZHC 2510 of 6 September 2023 is ultimately of no moment.

While the liquidators of FTCL accept that the liquidation of FCTL means it is no longer a trustee of the FCT, Venning J ultimately dismissed all of Mr Soroka’s interlocutory applications, including for the declaration sought by Mr Soroka that that FCTL is no longer a trustee of the FCT.

Venning J held at [44] that even if Mr Soroka has the ability as settlor under the Trust Deed to appoint a new trustee that does not address the issue of FCTL’s position as bare trustee nor its rights of indemnity and subrogation in relation to its costs and creditors.

Materially, there is nothing from the judgment of Venning J in Soroka and Flying Cross Trust Limited v Meredith that affects the High Court Order in CIV-2023- 404-2404 issued on 12 December 2023 granting possession of the Property to the Mortgagee and ordering the Mortgagor, and Messrs Soroka and Kerr, to deliver up vacant possession of the Property to the Mortgagee.

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 first purported Tenancy Agreement’), dated 28 September 2023 and 28 September 2024.

The Mortgagee was not aware of the first 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 first purported Tenancy Agreement prior to Mr Soroka presenting it to the Mortgagee on 20 February 2024.

On 11 June 2024, I accepted the Mortgagee’s position in Tribunal application 4849360 that the first 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 found that the first 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 first 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 first purported Tenancy Agreement is not valid or binding for that reason alone. e. Further, the Liquidators did not and do not consent to the first 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 first 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 first 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 first 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 first 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 first purported Tenancy Agreement, nor had knowledge of the same until Mr Soroka provided the first purported Tenancy Agreement on 20 February 2024. j. The first 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 first 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 first purported Tenancy Agreement. l. For the above reasons, it was clear that the first 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.

Following receipt of my Order of 26 June 2024 under Tribunal application 4849360, the Mortgagee requested that the bailiff take possession of the Property and it did so on 27 June 2024.

Prior to taking possession, on the afternoon of 26 June 2024 Mr Soroka filed an application in respect of the High Court proceeding which included a new tenancy agreement between “FCT Ttrustee Limilted” as landlord, and Mark Brumby and Mr Soroka as tenants (‘the second purported Tenancy Agreement’).

From the dates of the document, the second purported Tenancy Agreement was entered into on 1 April 2024 or 30 May 2024.

Again, neither the Mortgagee nor the Liquidators were aware of the second purported Tenancy Agreement prior to Mr Soroka providing it in his application on 26 June 2024 and did not consent to it.

This is a similar circumstance to how the second purported Tenancy Agreement was presented to the Mortgagee in respect of application 4849360.

As with the first purported Tenancy Agreement in application 4849360, I find the second purported Tenancy Agreement is invalid for the same reasons as set out in [24] above.

FCT Trustee Limited is not the registered owner of, nor has any interest in, the Property. FCT Trustee Limited therefore has no ability to enter into agreements in relation to the Property and the second purported Tenancy Agreement is not valid or binding for that reason alone.

In taking possession of the Property, the Mortgagee relied on the judgment of the High Court dated 12 December 2023.

The Mortgagor and the Mortgagee are the only entities who have rights over the Property.

Those rights were transferred to the Liquidators when the Mortgagor was placed into liquidation.

The Liquidators did not and do not consent to the second purported Tenancy Agreement.

As above, the registered owner/Mortgagor has been in liquidation since July 2022 (i.e. around 21 months prior to the purported execution of the second purported Tenancy Agreement in April or May 2024).

This is not the first time Mr Soroka and his associated parties have created a dubious tenancy agreement.

Presently, the Mortgagee are faced with the second purported Tenancy Agreement. It is clear that Mr Soroka is attempting to interfere with the Mortgagee's rights and entitlements in relation to the Property.

I agree with counsel for the Mortgagee that they should not be continually prejudiced and prevented from exercising their entitlements to the Property every time an invalid tenancy agreement is devised and presented.

Since the date of my order of 26 June 2024, no material circumstances have changed in relation to the Liquidator’s or Mortgagee’s entitlement to the Property. It remains that FCT Trustee Limited has no right to enter a tenancy agreement as landlord concerning the Property, or in any other regard without the consent of the Liquidators or the Mortgagee.

The facts in this case concerning the second purported Tenancy Agreement 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 for a declaration that the second purported Tenancy Agreement is invalid ab initio.

As for the second order sought by the Mortgagee for any further tenancy agreement purportedly entered into in respect of the Property without the consent of the Liquidators and the Mortgagee is void ab initio, I consider it appropriate that the scope of the declaration should be narrowed to only apply to Mr Soroka and any company, trust or entity which he is or purports to be involved in, or any other façade Mr Soroka may choose to operate under in the future.

I consider that this would allay concerns of the scope of the order being too wide resulting in the automatic invalidation of potentially valid tenancy agreements.

I agree with counsel for the Mortgagee that despite the second purported Tenancy Agreement being a clearly fabricated document, its mere existence has the potential to jeopardize that sale of the Property because s 58(1)(a) of the RTA provides a tenancy shall continue, even when a mortgagee has become entitled to possession in the premises.

For the avoidance of doubt, any attempted shackle that Mr Soroka and any company, trust or entity which he is or purports to be involved in, or any other façade Mr Soroka may choose to operate under in the future by way of a device similar to the first purported Tenancy Agreement and second purported Tenancy Agreement can be avoided following application of the ratio in Chen v Prasad and CRW Trust [2012] NZHC 1404. In a case where the mortgagee has not 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 survives the transfer to the new purchasers of the property.

Consequently, it is necessary for the second order in the nature of a declaration to be issued that any future tenancy agreement in relation to the Property entered into or produced by Mr Soroka, or any company, trust or entity which he is or purports to be involved in, or any other façade Mr Soroka operates, without the consent of the Mortgagee and the Liquidators of the Mortgagor, from the date of the commencement of Liquidation to the date the present mortgage is discharged, is also void ab initio.

Tenancy Tribunal case 4933182 — Tenancy dispute at 58 Old Barn Road, Opaheke, RD 4, Papakura 2584

At a glance

Claims & awards

Tenancy Tribunal case 4933182 — 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