What was the outcome of Tenancy Tribunal case 4980644?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4980644?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4980644?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4980644?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11033941-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4980644?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4980644?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4980644?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4980644?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11033941-Tribunal_Order.pdf.

Unit/Flat 205, 115 Oreil Avenue, West Harbour, Auckland Tenancy Tribunal Case 4980644 — 14-day notice

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy under section 55(1)(c) of the Residential Tenancies Act 1986 (RTA).
As the applicant, the landlord must prove their claim to the civil law standard of proof, on the balance of probabilities. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
In T v M [1984] 2 NZLFR, the Court of Appeal confirmed that, while the ‘balance of probabilities’ is a constant standard: “It is the principle of good common sense that the more serious the issue, the greater should be the care used in assessing it.” Should the tenancy be terminated under section 55(1)(c) RTA?
Section 55(1)(c) RTA requires the Tribunal to make an order terminating a tenancy if it is satisfied that the tenant has assaulted or threatened to assault any neighbour of the premises or any building of which the premises constitutes a part.
The Tribunal applies the principles established in the criminal jurisdiction, namely: a. Any non-consented physical contact with another person constitutes an assault; and b. Any action in reasonable self-defence or defence of another is not an assault. 1
The tenancy address is one of 15 units in a three-storeyed apartment block.
The landlord alleges that the tenant assaulted a neighbour from another unit in the complex’s carpark on 21 August 2024. The landlord claims that the tenant punched the neighbour in the face multiple times and had a knife in his hand. The landlord claims that the tenant was the aggressor in this incident.
The tenant accepts that he punched the neighbour in the face but claims that he acted in self-defence.
The landlord relies on the following evidence to support their version of events: a. Formal witness statement of the neighbour who claims to have been assaulted. This statement was given to the Police and is dated 21 August 2024. In it, the neighbour states that he got into an argument with the tenant over the tenant leaving rubbish on his car. The neighbour alleges that the tenant walked up to him and began pushing him. The neighbour states that he punched the tenant in the jaw and the two began fighting. During a momentary break in the fighting, the neighbour states that he saw a knife in the tenant’s hand. The two began fighting again and the tenant’s brother joined in. The incident lasted approximately 30 minutes and ended when the tenant’s brother grabbed the tenant and walked off. b. Photographs of the neighbour taken by the Police on 21 August 2024. These photographs are black and white but clearly show the neighbour with a split lip. c. The fact that the tenant was charged by the Police in relation to the incident with injures with intent to injure. 1 Bell v Kirton TT Timaru TT35/91 17 May 1991. d. File notes made by the landlord of conversations with other tenants who were present and witnessed the incident on 21 August 2024. These file notes do not refer to the names of the tenants the landlord spoke to. The landlord states that these tenants did not want to identify themselves, because they were scared of possible retaliation by the tenant. The most descriptive file note of what one tenant said to the landlord is as follows: “On 21.8.24 at 4:26p, I had a text from witness A, “They are at it again, all fighting here.” At 4:29pm, I had a missed call from witness A. They left me a voicemail at 4:30pm, “Ye Carole, they are all fighting here, they have got f.... knives out the boys are punching it out, Conrad attacked Chris. I’m over it, I’m done, I want to move out.” They then called me at 4:43pm saying that Chris is an old man, Conrad shouldn’t have attacked him like that. Conrad had a knife in his hand. At 5:19pm, the knife thing has done it for me. This has been going on since he [the tenant] moved in. then at 5:30pm, another text from witness A, “Just hope his brother doesn’t start anything.” e. Admissions made by the tenant that he punched the neighbour in the face. f. Voice recording of part of the incident on 21 August 2024. This was provided to the landlord by an unnamed neighbouring tenant who witnessed the incident. In the recording, a male can be heard shouting the following phrases: “Let’s do this faggot, let’s do this faggot” “You’re full of shit bitch” “Come here, I’ll fucking murder you bitch” The landlord claims that the male shouting the above phrases is the tenant. The landlord states that they are very familiar with the tenant’s voice, as they have had a lot of interactions with the tenant since the tenancy began on 1 December 2022.
The tenant does not accept that the male in the recording is him. The tenant does not agree that they have had significant contact with the landlord since the tenancy began and questions the landlord’s ability to recognise his voice.
The tenant relies on the following evidence to support their claim that they acted in self-defence: a. Their own witness statement about what occurred. The tenant gave evidence at the hearing that on 21 August 2024 they were at home with their brother. The tenant heard a neighbour from another unit yelling and calling his name. The neighbour was accusing the tenant of putting rubbish on his car. The tenant accepts that he did put rubbish on the neighbour’s car. The tenant claims that this particular neighbour always left rubbish in the common area and the tenant was sick of it. The tenant states that he went down to meet the neighbour in the carpark to talk to him, as he did not want to be yelling across the apartment complex. The tenant states that as he approached the neighbour, the neighbour said, “if you come here, I’ll murder you, you little bitch” to which the tenant replied “murder me? Go on then, do it.” The tenant states that he was approximately 1 metre away from the neighbour who picked up a wrench and hit him over the head approximately 5 – 7 times. The tenant states that the neighbour grabbed a hold of his t-shirt and would not let go. The tenant tried to push the neighbour away, but was unsuccessful. The tenant punched the neighbour in the head/face to get away. The tenant denies ever holding a knife at the time. b. The statement given by the tenant’s brother to the Police on 21 August 2024. The tenant’s brother gave a statement largely consistent with the tenant’s statement above and confirmed that the neighbour hit the tenant twice with a wrench before the tenant punched him once in the mouth. c. The Police Summary of Facts which states: “A heated verbal exchange broke out between the Defendant [tenant] and the Victim [neighbour]. The Victim hit the Defendant multiple times with a wrench towards the Defendant’s neck and underneath his right eye. The Defendant punched the Victim by his lips with a right closed fist and the Victim sustained a significant injury as a result.” d. The fact that the Police accepted that the tenant had acted in self-defence and offered no evidence at a case review hearing, which resulted in the charge being dismissed. The tenant submitted a reporting letter from their lawyer who represented them in respect of the charge of injures with intent to injure. This letter is dated 21 October 2024 and states that on 18 October 2024: “The charge of injures with intent to injure was dismissed, as the Police conceded that you acted in self-defence and they offered no evidence.” Analysis
In my view, the tenant has raised a credible basis for their claim that they acted in self-defence. They gave direct evidence at the hearing about what occurred on 21 August 2024. Their evidence was largely consistent with the statement they provided to the Police on the day, as recorded in the Police officer’s notebook. This consistency over time about what the tenant says happened enhances their reliability and credibility. The tenant’s brother also gave a signed statement to the Police, which supports the tenant’s version of events. The Police themselves have even conceded that the tenant acted in self-defence and offered no evidence in respect of the charge, which has now been dismissed. In the face of this kind of evidence, the landlord needs to point to relatively strong evidence to displace the tenant’s claim that they acted in self- defence. I do not consider that they have done this.
The landlord did not witness the incident on 21 August 2024. The majority of evidence relied on by the landlord to support their claim is hearsay. Hearsay evidence is evidence that is not directly seen, heard or spoken by the person that is giving the evidence to the Tribunal, in this case, the landlord. Whilst the Tribunal can accept hearsay evidence, it is given much less weight than evidence given by a person who was there. This is because a person who was there can answer questions about what they saw, heard and the adjudicator can make an assessment on the witness’ reliability and credibility.
The landlord did not call any witnesses to give evidence about what occurred on 21 August 2024. The landlord states that neighbouring tenants who witnessed the altercation were too scared to be named and give evidence. Whilst this might be the case for neighbouring tenants who saw the incident, it cannot be the case for the neighbour who was a part of the altercation. This neighbour’s name is already known to the tenant and the neighbour gave a statement to the Police on the day. Further, it must be remembered that it is the landlord who bares the onus of proving that the tenant did not act in self-defence on the balance of probabilities. No CCTV footage or video recording of this incident was provided. In the absence of this kind of objective evidence, statements from witnesses are important in helping the landlord to discharge their onus. The landlord cannot simply expect the Tribunal rely on what the landlord claims they were told by witnesses, especially in cases like this where the tenant is disputing the version of events put forward by the landlord.
The quality of most of the hearsay evidence that the landlord relied on is poor. The landlord did not submit any written statements, letters or other forms of communication produced by the neighbouring tenants themselves. Instead, the landlord submitted file notes of conversations that the landlord had with these people. These file notes are very light on detail about what each person saw or heard and no information is given about the circumstances of these people’s observations such as distance, lighting and whether their view was in any way obscured. All of this means that I am unable to attach much weight to this evidence.
The photographs of the neighbour’s split lip do not strengthen the landlord’s case. This is because the tenant accepts that he punched the neighbour in the face, but states that he did this in self-defence as the neighbour was attacking him with a wrench. The photograph of the neighbour’s injury does not advance the landlord’s claim that the tenant was the aggressor.
The landlord claims that the male in the recording shouting profanities is the tenant, but the tenant denies that this is him. The landlord did not call the person who took this recording as a witness or anyone else. This means that no one else is able to verify that the person in the recording is the tenant. As a result, I am not persuaded on the balance of probabilities that it is.
For all of the above reasons, the landlord has not convinced me on the balance of probabilities that the tenant did not act in self-defence when he punched the neighbour.
The landlord’s application for termination under section 55(1)(c) is dismissed. Suppression
The tenant did not make an application for suppression.
The landlord’s written application requested suppression. The landlord has not been wholly or substantially successful in their claim and therefore, I am not required to grant suppression under section 95A(1) RTA.
I have a residual discretion to grant the landlord suppression under section 95A(4) RTA. This section requires me to consider the interests of the parties and public. In Lewis v Wilson & Horton [2003] 3 NZLR 546 at paragraph 43, The Court of Appeal endorsed the approach taken in the High Court, which held: ...that the principle of open justice dictates that there should be no restriction on publication of information about a case ‘except in very special circumstances.’
The landlord did not advance their application for suppression at the hearing. I was not referred to any special circumstances why name suppression should be granted and none are apparent from the facts of this case.
I have considered the interests of the parties and the public interest. I do not consider that this is an appropriate case to grant name suppression.

Tenancy Tribunal case 4980644 — 14-day notice at Unit/Flat 205, 115 Oreil Avenue, West Harbour, Auckland

At a glance

Tenancy Tribunal case 4980644 — 14-day notice at Unit/Flat 205, 115 Oreil Avenue, West Harbour, Auckland

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