What was the outcome of Tenancy Tribunal case 4983738?

The tribunal order states: Theresa Latafoti Henry must pay Kāinga Ora–Homes And Communities

How much money was awarded in case 4983738?

Filing Fee: $27.00 awarded to landlord; For Failure To Mitigate Loss: $12,414.18 awarded to landlord

What type of tenancy dispute was case 4983738?

The dispute type was not classified.

Where can I read the official tribunal order for case 4983738?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11147284-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4983738?

The tribunal order states: Theresa Latafoti Henry must pay Kāinga Ora–Homes And Communities

How much money was awarded in case 4983738?

Filing Fee: $27.00 awarded to landlord; For Failure To Mitigate Loss: $12,414.18 awarded to landlord

What type of tenancy dispute was case 4983738?

The dispute type was not classified.

Where can I read the official tribunal order for case 4983738?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11147284-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 169 Spa Road, Taupo, Taupo 3330 Tenancy Tribunal Case 4983738 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4983738 — net $12,253.18 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
for failure to mitigate loss	$12,414.18	for failure to mitigate loss
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$12,253.18
Total payable by Tenant to Landlord	$12,253.18

Order

Theresa Latafoti Henry must pay Kāinga Ora–Homes And Communities $12,253.18 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $188.00 () to Kāinga Ora–Homes And Communities immediately.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears and refund of the bond following the end of the tenancy. Rent arrears and failure to mitigate loss
The tenancy ended on 19 August 2024. The landlord provided a rent summary, which shows that rent arrears were $19,336.98 on this date. At the date of the hearing, rent arrears totalled $18,621.27. The tenant has been making payments towards the arrears since the tenancy ended.
I have reduced the level of rent arrears owed by the tenant by one third, because I do not consider that the landlord acted reasonably in the circumstances to mitigate their loss. My reasons for this are detailed below. The law – mitigation of loss
Section 49 Residential Tenancies Act 1986 (RTA) provides that: 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.
In Huang v Ashworth [2024] NZDC 15726, the District Court helpfully summarised the law regarding mitigation of loss in the context of the RTA as follows: [8] If either the landlord or tenant breaches the provisions of the tenancy agreement or the Act, the other party must take reasonable steps to minimise any loss arising from that breach. Accordingly, where the tenant fails to pay rent owing, there is an obligation on 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. [9] The rules that apply to mitigation of loss were described by Lord Haldane in British Westinghouse Electric and Manufacturing Co v Underground Electric Railway Co of London, as follows: [T]he law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate is a question of fact dependent upon the particular circumstances of each case. [10] The learned author of Law of Contract in New Zealand puts it this way: The burden which lies on the defendant of proving that the plaintiff has failed in his or her duty of mitigation is by no means a light one, for this is a case where a party already in breach of contract demands positive action from one who is often innocent of blame. [11] Of relevance is s 55(1)(a) of the Act, which contains the power for a landlord to end a tenancy where rent is more than 21 days in arrears. In Housing New Zealand v Witika the landlord, Housing New Zealand, had allowed five months of arrears of rent to accumulate before it took steps to terminate the tenancy. In the Tribunal the adjudicator applied a “standard practice” of limiting rent arrears to 6 – 8 weeks on the basis that allowing rent arrears to accrue significantly beyond 21 days was indicative of a failure to mitigate loss. He awarded Housing New Zealand only $1760 of the $2256.43 arrears of rent claimed. In the District Court Judge Kerr overturned that decision. On appeal it was held that Housing New Zealand had acted reasonably in relation to the tenant given its position as the provider of state housing. It should not be restricted in its ability to recover the full amount of rent arrears on the basis of a failure to mitigate loss. Judge Kerr concluded: The learned adjudicator, as a matter of practice, seems to have dealt with claims for arrears by fixing an allowance of up to six weeks or two months worth of arrears as being the maximum allowable in any claim. In my view, that artificially creates a ceiling, which in terms of the principles relating to mitigation should not be created. If mitigation of damages is to be based on all the circumstances of the case and on the factual situation pertaining, then each case must be treated on its own merits, and to adopt a practice which may have the effect of tying an adjudicator’s hands in my opinion is not appropriate. [11] The Court held there is a duty to mitigate any loss by ensuring rent does not get too far in arrears. The test of what is required by the landlord to mitigate loss is a factual one that requires the Court to consider: (a) whether the landlord took all reasonable steps to mitigate its loss; and (b) more particularly, whether it acted reasonably having regard to all the circumstances of the case. [12] Judge Kerr avoided imposing an artificial ceiling on the amount of arrears a landlord can let build up but clearly indicated that there is a duty to mitigate when the rent goes into arrears. [13] On one view Judge Kerr appears to be placing a gloss on the obligation to mitigate for an organisation such as Housing New Zealand. This is because under s 3B(a)(i) of the Housing Corporation Act 1974, one of the objectives of Housing New Zealand is to exhibit “a sense of social responsibility by having regard to the interests of the community in which it operates.” As the main provider of social housing in New Zealand at the time, it may be considered as contrary to Housing New Zealand’s social obligation to promptly evict tenants who cannot pay their rent. My view is that this analysis by Judge Kerr is an excellent illustration of the need to assess reasonable steps with regard to all the circumstances of the case. Applying that approach to this case, I do not consider that a landlord who has made a considered and sympathetic decision to allow a tenant to have more time to pay arrears should be prejudiced if payment is not made.
The case of Huang v Ashworth involved a tenancy that began in 2019 and ended on 3 January 2023. Throughout a significant period of the tenancy, the tenant had not paid the full amount of rent. As of March 2022, the tenant was 13 weeks behind in rent. Arrears continued to accrue throughout 2022 until the tenancy ended on 3 January 2023. The landlord sought an order for $10,000.00 for rent arrears.
The landlord in Ashworth had engaged in ongoing discussion with the tenant about payment of the arrears. At different times, arrangements were put in place for the tenant to pay the arrears. The tenant made numerous promises to the landlord to pay the arrears and would sometimes “top up” their rental payment to reduce the arrears. Based on the tenant’s multiple promises, the landlord allowed the tenant more time to pay the arrears, rather than seeking eviction. The District Court found the landlord’s attempts to resolve the issue of rent arrears without resorting to eviction reasonable, but only up to a point. At paragraph [18], the District Court stated: [18]... Where a tenant repeatedly breaches promises to make up arrears and instead additional arrears are incurred there comes a point where it is being naïve or careless to your own interests to persist giving the tenant more time to pay. For that reason, I do not consider that the full arrears can be claimed. In other words I am satisfied on balance of probabilities that there was some failure to mitigate loss...”
The District Court considered a reduction of one third of the total rent arrears claimed to be a reasonable reflection of the landlord’s failure to mitigate their loss. Analysis
This tenancy began on 4 April 2011. From 6 November 2018 – 19 August 2018, the tenant was in a constant state of increasing rent arrears. On 6 November 2018, the tenant owed $136.00 in rent. By the end of the tenancy, they owed $19,336.98.
The landlord gave evidence that they never took any formal steps such as applying to the Tribunal for mediation or a hearing to recover the arrears. The only action the landlord took was to contact the tenant by various means and discuss arrangements for a payment plan. The landlord gave evidence that at times the tenant stuck to the payment plan, but at other times they did not. The landlord states that some of the arrears accrued during the Covid-19 lockdown period. The landlord states that they took a particularly lenient approach to non- payment of rent and not seeking termination during this time.
The tenant gave evidence that the main reason for the arrears accruing was because their ex-husband was a gambler. He used to share the tenancy with the tenant, but after they separated, his name was taken off the tenancy. In more recent times, the tenant has become ill with osteoarthritis. She has also assumed responsibility for looking after three grandchildren, including a set of young twins.
The landlord is a provider of social housing and therefore, a more generous approach is to be taken regarding an assessment of whether they acted reasonably to mitigate their loss. Even on such an approach, I do not consider that they did. Rent arrears have steadily increased over a 6 year period of this tenancy. Other than contacting the tenant to organise a payment plan, which the tenant never stuck to for any significant period of time, the landlord did nothing to stop the arrears from increasing. At the date of the hearing, the arrears totalled almost 4 years’ worth of rent. I consider that from 12 May 2020 when rent arrears totalled $5,122.00 the landlord was naïve or careless to their own interests in allowing the tenant more time to pay the arrears. In doing so, the landlord allowed rent arrears to increase all the way until the end of the tenancy. On the balance of probabilities, I am not satisfied that the landlord acted reasonably to mitigate their loss. Therefore, I have made a reduction to the arrears of one third, which I consider to be reasonable.
The landlord’s claim for rent arrears is granted for an adjusted amount of $12,414.18. Filing fee
Because Kāinga Ora–Homes And Communities has wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4983738 — net $12,253.18 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
for failure to mitigate loss	$12,414.18	for failure to mitigate loss
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$12,253.18
Total payable by Tenant to Landlord	$12,253.18

Order

Theresa Latafoti Henry must pay Kāinga Ora–Homes And Communities $12,253.18 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $188.00 () to Kāinga Ora–Homes And Communities immediately.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears and refund of the bond following the end of the tenancy. Rent arrears and failure to mitigate loss
The tenancy ended on 19 August 2024. The landlord provided a rent summary, which shows that rent arrears were $19,336.98 on this date. At the date of the hearing, rent arrears totalled $18,621.27. The tenant has been making payments towards the arrears since the tenancy ended.
I have reduced the level of rent arrears owed by the tenant by one third, because I do not consider that the landlord acted reasonably in the circumstances to mitigate their loss. My reasons for this are detailed below. The law – mitigation of loss
Section 49 Residential Tenancies Act 1986 (RTA) provides that: 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.
In Huang v Ashworth [2024] NZDC 15726, the District Court helpfully summarised the law regarding mitigation of loss in the context of the RTA as follows: [8] If either the landlord or tenant breaches the provisions of the tenancy agreement or the Act, the other party must take reasonable steps to minimise any loss arising from that breach. Accordingly, where the tenant fails to pay rent owing, there is an obligation on 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. [9] The rules that apply to mitigation of loss were described by Lord Haldane in British Westinghouse Electric and Manufacturing Co v Underground Electric Railway Co of London, as follows: [T]he law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate is a question of fact dependent upon the particular circumstances of each case. [10] The learned author of Law of Contract in New Zealand puts it this way: The burden which lies on the defendant of proving that the plaintiff has failed in his or her duty of mitigation is by no means a light one, for this is a case where a party already in breach of contract demands positive action from one who is often innocent of blame. [11] Of relevance is s 55(1)(a) of the Act, which contains the power for a landlord to end a tenancy where rent is more than 21 days in arrears. In Housing New Zealand v Witika the landlord, Housing New Zealand, had allowed five months of arrears of rent to accumulate before it took steps to terminate the tenancy. In the Tribunal the adjudicator applied a “standard practice” of limiting rent arrears to 6 – 8 weeks on the basis that allowing rent arrears to accrue significantly beyond 21 days was indicative of a failure to mitigate loss. He awarded Housing New Zealand only $1760 of the $2256.43 arrears of rent claimed. In the District Court Judge Kerr overturned that decision. On appeal it was held that Housing New Zealand had acted reasonably in relation to the tenant given its position as the provider of state housing. It should not be restricted in its ability to recover the full amount of rent arrears on the basis of a failure to mitigate loss. Judge Kerr concluded: The learned adjudicator, as a matter of practice, seems to have dealt with claims for arrears by fixing an allowance of up to six weeks or two months worth of arrears as being the maximum allowable in any claim. In my view, that artificially creates a ceiling, which in terms of the principles relating to mitigation should not be created. If mitigation of damages is to be based on all the circumstances of the case and on the factual situation pertaining, then each case must be treated on its own merits, and to adopt a practice which may have the effect of tying an adjudicator’s hands in my opinion is not appropriate. [11] The Court held there is a duty to mitigate any loss by ensuring rent does not get too far in arrears. The test of what is required by the landlord to mitigate loss is a factual one that requires the Court to consider: (a) whether the landlord took all reasonable steps to mitigate its loss; and (b) more particularly, whether it acted reasonably having regard to all the circumstances of the case. [12] Judge Kerr avoided imposing an artificial ceiling on the amount of arrears a landlord can let build up but clearly indicated that there is a duty to mitigate when the rent goes into arrears. [13] On one view Judge Kerr appears to be placing a gloss on the obligation to mitigate for an organisation such as Housing New Zealand. This is because under s 3B(a)(i) of the Housing Corporation Act 1974, one of the objectives of Housing New Zealand is to exhibit “a sense of social responsibility by having regard to the interests of the community in which it operates.” As the main provider of social housing in New Zealand at the time, it may be considered as contrary to Housing New Zealand’s social obligation to promptly evict tenants who cannot pay their rent. My view is that this analysis by Judge Kerr is an excellent illustration of the need to assess reasonable steps with regard to all the circumstances of the case. Applying that approach to this case, I do not consider that a landlord who has made a considered and sympathetic decision to allow a tenant to have more time to pay arrears should be prejudiced if payment is not made.
The case of Huang v Ashworth involved a tenancy that began in 2019 and ended on 3 January 2023. Throughout a significant period of the tenancy, the tenant had not paid the full amount of rent. As of March 2022, the tenant was 13 weeks behind in rent. Arrears continued to accrue throughout 2022 until the tenancy ended on 3 January 2023. The landlord sought an order for $10,000.00 for rent arrears.
The landlord in Ashworth had engaged in ongoing discussion with the tenant about payment of the arrears. At different times, arrangements were put in place for the tenant to pay the arrears. The tenant made numerous promises to the landlord to pay the arrears and would sometimes “top up” their rental payment to reduce the arrears. Based on the tenant’s multiple promises, the landlord allowed the tenant more time to pay the arrears, rather than seeking eviction. The District Court found the landlord’s attempts to resolve the issue of rent arrears without resorting to eviction reasonable, but only up to a point. At paragraph [18], the District Court stated: [18]... Where a tenant repeatedly breaches promises to make up arrears and instead additional arrears are incurred there comes a point where it is being naïve or careless to your own interests to persist giving the tenant more time to pay. For that reason, I do not consider that the full arrears can be claimed. In other words I am satisfied on balance of probabilities that there was some failure to mitigate loss...”
The District Court considered a reduction of one third of the total rent arrears claimed to be a reasonable reflection of the landlord’s failure to mitigate their loss. Analysis
This tenancy began on 4 April 2011. From 6 November 2018 – 19 August 2018, the tenant was in a constant state of increasing rent arrears. On 6 November 2018, the tenant owed $136.00 in rent. By the end of the tenancy, they owed $19,336.98.
The landlord gave evidence that they never took any formal steps such as applying to the Tribunal for mediation or a hearing to recover the arrears. The only action the landlord took was to contact the tenant by various means and discuss arrangements for a payment plan. The landlord gave evidence that at times the tenant stuck to the payment plan, but at other times they did not. The landlord states that some of the arrears accrued during the Covid-19 lockdown period. The landlord states that they took a particularly lenient approach to non- payment of rent and not seeking termination during this time.
The tenant gave evidence that the main reason for the arrears accruing was because their ex-husband was a gambler. He used to share the tenancy with the tenant, but after they separated, his name was taken off the tenancy. In more recent times, the tenant has become ill with osteoarthritis. She has also assumed responsibility for looking after three grandchildren, including a set of young twins.
The landlord is a provider of social housing and therefore, a more generous approach is to be taken regarding an assessment of whether they acted reasonably to mitigate their loss. Even on such an approach, I do not consider that they did. Rent arrears have steadily increased over a 6 year period of this tenancy. Other than contacting the tenant to organise a payment plan, which the tenant never stuck to for any significant period of time, the landlord did nothing to stop the arrears from increasing. At the date of the hearing, the arrears totalled almost 4 years’ worth of rent. I consider that from 12 May 2020 when rent arrears totalled $5,122.00 the landlord was naïve or careless to their own interests in allowing the tenant more time to pay the arrears. In doing so, the landlord allowed rent arrears to increase all the way until the end of the tenancy. On the balance of probabilities, I am not satisfied that the landlord acted reasonably to mitigate their loss. Therefore, I have made a reduction to the arrears of one third, which I consider to be reasonable.
The landlord’s claim for rent arrears is granted for an adjusted amount of $12,414.18. Filing fee
Because Kāinga Ora–Homes And Communities has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4983738 — Tenancy dispute at Unit/Flat 3, 169 Spa Road, Taupo, Taupo 3330

At a glance

Tenancy Tribunal case 4983738 — Tenancy dispute at Unit/Flat 3, 169 Spa Road, Taupo, Taupo 3330

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions