What was the outcome of Tenancy Tribunal case 4995469?

The tribunal order states: Hola Marie Fainu must pay Asian Community Engagement Trust $4,000.00

How much money was awarded in case 4995469?

Rent Arrears: $6,800.00 awarded to landlord

What type of tenancy dispute was case 4995469?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4995469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11287710-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4995469?

The tribunal order states: Hola Marie Fainu must pay Asian Community Engagement Trust $4,000.00

How much money was awarded in case 4995469?

Rent Arrears: $6,800.00 awarded to landlord

What type of tenancy dispute was case 4995469?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4995469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11287710-Tenancy_Tribunal_Order.pdf.

Unit/Flat 4, 11 Scanlen Terrace, Kelston, Auckland 0602 Tenancy Tribunal Case 4995469 — Rent arrears

Claims and awards in Tenancy Tribunal application 4995469 — net $4,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 14 July 2024	$6,800.00	Rent arrears to 14 July 2024
Net award	$4,000.00
Total payable by Tenant to Landlord	$4,000.00

Order

Hola Marie Fainu must pay Asian Community Engagement Trust $4,000.00 immediately, being rent arrears to 14 July 2024, less the bond, as calculated in the table below:
The Bond Centre is to pay the bond of $2,800.00 (6506329-003) to Asian Community Engagement Trust immediately.
The hearing is adjourned.
A further 150 minutes should be allowed for the next hearing of this matter scheduled before me at this court on the next available date. The purpose of this hearing will be to hear the remainder of the landlord’s claims.
A court appointed Mandarin interpreter is to attend the next hearing for the landlord.

Reasons

Mr Ding attended the hearing for the landlord. The landlord has applied for rent arrears, refund of the bond, compensation, damages and reimbursement of the filing fee.

How much is owed in rent?

The landlord has provided rent records in the form of a rent ledger which prove the amount owing.
The rent records also show that the tenant has been in continuous rent arrears since the beginning of October 2023. Given that the arrears have been allowed to accrue, it is necessary for me to consider whether the landlord has acted reasonably in respect of its duty to mitigate its losses.
Parties to a tenancy agreement 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 late October 2023.
It is relevant that the landlord is a not-for-profit organisation, akin to a social housing provider. The landlord has a mission of “... assisting Asian migrants in making New Zealand their home, and actively engaging in and contributing to the local community.” Part of its programme includes the provision of affordable housing. 2 1 See British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689. 2 https://www.ethniccommunities.govt.nz/community-directory/show/1208, retrieved on 10 January 2028.
In Housing New Zealand v Witika, the landlord, Housing New Zealand, had allowed five months of arrears of rent to accumulate before it terminated the tenancy. This Tribunal limited the rent arrears on the basis that rent arrears accruing significantly beyond 21 days was indicative of a failure to mitigate loss. In the appeal to the District Court, Housing New Zealand v Witika [1995] DCR 307, Judge Kerr overturned that decision finding that Housing New Zealand as a provider of state housing had acted reasonably in relation to the tenant and should not be restricted in its ability to recover the full amount of rent arrears on the basis of a failure to mitigate.
In David Huang v Carne Ashworth, Judge NJ Sainsbury referred to Judge Kerr’s decision in Housing New Zealand v Witika and confirmed that the test of what is required by a landlord in terms of mitigation of 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.
The rent arrears built up over a period of almost 10 months. The landlord said that the reason why it did not seek to terminate the tenancy due to rent arrears was because it of its mission and because by February 2024, the tenant had started making regular payments.
In the circumstances, I find that the landlord acted reasonably and make no deduction for failure to mitigate. Adjournment:
As the hearing progressed, it became apparent that Mr Ding required the assistance of a Mandarin interpreter. The hearing was adjourned to allow for an interpreter to be appointed. The remainder of the landlord’s claims will be heard at the next hearing.
The parties will be notified in writing by Tenancy Services of the date and time of the next hearing. .

Claims and awards in Tenancy Tribunal application 4995469 — net $4,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 14 July 2024	$6,800.00	Rent arrears to 14 July 2024
Net award	$4,000.00
Total payable by Tenant to Landlord	$4,000.00

Order

Hola Marie Fainu must pay Asian Community Engagement Trust $4,000.00 immediately, being rent arrears to 14 July 2024, less the bond, as calculated in the table below:
The Bond Centre is to pay the bond of $2,800.00 (6506329-003) to Asian Community Engagement Trust immediately.
The hearing is adjourned.
A further 150 minutes should be allowed for the next hearing of this matter scheduled before me at this court on the next available date. The purpose of this hearing will be to hear the remainder of the landlord’s claims.
A court appointed Mandarin interpreter is to attend the next hearing for the landlord.

Reasons

Mr Ding attended the hearing for the landlord. The landlord has applied for rent arrears, refund of the bond, compensation, damages and reimbursement of the filing fee.

How much is owed in rent?

The landlord has provided rent records in the form of a rent ledger which prove the amount owing.
The rent records also show that the tenant has been in continuous rent arrears since the beginning of October 2023. Given that the arrears have been allowed to accrue, it is necessary for me to consider whether the landlord has acted reasonably in respect of its duty to mitigate its losses.
Parties to a tenancy agreement 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 late October 2023.
It is relevant that the landlord is a not-for-profit organisation, akin to a social housing provider. The landlord has a mission of “... assisting Asian migrants in making New Zealand their home, and actively engaging in and contributing to the local community.” Part of its programme includes the provision of affordable housing. 2 1 See British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689. 2 https://www.ethniccommunities.govt.nz/community-directory/show/1208, retrieved on 10 January 2028.
In Housing New Zealand v Witika, the landlord, Housing New Zealand, had allowed five months of arrears of rent to accumulate before it terminated the tenancy. This Tribunal limited the rent arrears on the basis that rent arrears accruing significantly beyond 21 days was indicative of a failure to mitigate loss. In the appeal to the District Court, Housing New Zealand v Witika [1995] DCR 307, Judge Kerr overturned that decision finding that Housing New Zealand as a provider of state housing had acted reasonably in relation to the tenant and should not be restricted in its ability to recover the full amount of rent arrears on the basis of a failure to mitigate.
In David Huang v Carne Ashworth, Judge NJ Sainsbury referred to Judge Kerr’s decision in Housing New Zealand v Witika and confirmed that the test of what is required by a landlord in terms of mitigation of 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.
The rent arrears built up over a period of almost 10 months. The landlord said that the reason why it did not seek to terminate the tenancy due to rent arrears was because it of its mission and because by February 2024, the tenant had started making regular payments.
In the circumstances, I find that the landlord acted reasonably and make no deduction for failure to mitigate. Adjournment:
As the hearing progressed, it became apparent that Mr Ding required the assistance of a Mandarin interpreter. The hearing was adjourned to allow for an interpreter to be appointed. The remainder of the landlord’s claims will be heard at the next hearing.
The parties will be notified in writing by Tenancy Services of the date and time of the next hearing. .

Tenancy Tribunal case 4995469 — Rent arrears at Unit/Flat 4, 11 Scanlen Terrace, Kelston, Auckland 0602

At a glance

Tenancy Tribunal case 4995469 — Rent arrears at Unit/Flat 4, 11 Scanlen Terrace, Kelston, Auckland 0602

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed in rent?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed in rent?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions