What was the outcome of Tenancy Tribunal case 5021791?

The tribunal order states: The tenancy of Cardena Esera and Tua Taka at 27 Tau Drive, Flat Bush,

How much money was awarded in case 5021791?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $14,771.43 awarded to landlord

What type of tenancy dispute was case 5021791?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5021791?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11020223-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5021791?

The tribunal order states: The tenancy of Cardena Esera and Tua Taka at 27 Tau Drive, Flat Bush,

How much money was awarded in case 5021791?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $14,771.43 awarded to landlord

What type of tenancy dispute was case 5021791?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5021791?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11020223-Tenancy_Tribunal_Order.pdf.

27 Tau Drive, Flat Bush, Auckland 2019 Tenancy Tribunal Case 5021791 — Rent arrears

Claims and awards in Tenancy Tribunal application 5021791 — net $5,998.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 30 October 2024	$14,771.43	Rent arrears to 30 October 2024
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,998.43
Total payable by Tenant to Landlord	$5,998.43

Order

The tenancy of Cardena Esera and Tua Taka at 27 Tau Drive, Flat Bush, Auckland 2019 is terminated, and possession is granted to Nzpro Property Management Limited As Agent For Mj Corporation Ltd immediately.
Cardena Esera and Tua Taka must pay Nzpro Property Management Limited As Agent For Mj Corporation Ltd. $5,998.43 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $8,800.00 (6537052-001) to Nzpro Property Management Limited As Agent For Mj Corporation Ltd. immediately.

Reasons

Both parties attended the hearing.
The tenancy began on 5 June 2024 and was a fixed-term tenancy until 2 June 2026.
The landlord applied for termination of the tenancy for breach of the tenant’s obligations and abandonment, rent arrears and refund of the bond. Termination for abandonment or breach of the tenant’s obligations?
The landlord’s application for termination for abandonment is dismissed however, their application for termination due to breach of the tenant’s obligations is granted. I deal with each claim for termination in turn below. Abandonment
On 1 October 2024, the landlord applied to the Tribunal for termination for breach of the tenant’s obligations under section 56 Residential Tenancies Act 1986. The landlord claimed that the tenant was in rent arrears and a 14-day notice was sent on 30 September 2024.
On 8 October 2024, the landlord discovered that the tenant had left the property and filed a new application with the Tribunal that same day for termination due to abandonment. The landlord requested that their abandonment application be dealt with under section 91AA of the Residential Tenancies Act 1986. This section allows the Tribunal to make a finding that the tenant has abandoned the property and terminate the tenancy on the papers within 10 days of the application being filed. This process is known as “expedited abandonment”.
On 17 October 2024, the Tribunal issued an order declining to grant the landlord’s application for expedited abandonment. The landlord’s application for termination due to abandonment was scheduled to be heard on the same day as their original application for termination for breach of the tenant’s obligations, namely 30 October 2024.
At the hearing on 30 October 2024, the landlord confirmed that they were only seeking rent arrears up to the date of the hearing on 30 October 2024. A key difference between an application for termination of a fixed-term tenancy due to abandonment, as opposed to breach of the tenant’s obligations, is that an application for abandonment allows the landlord to seek rent arrears up to the end of the fixed-term period or the date of commencement of a new tenancy. See section 61(3)(b) RTA. An application for termination of a fixed-term tenancy for breach of a tenant’s obligations only allows the landlord to claim rent arrears up to the date of the hearing. As the landlord only sought rent arrears up to the date of the hearing, I invited them to withdraw their application for termination due to abandonment and indicated that I would grant it for breach of the tenant’s obligations. The landlord declined to do this.
In Wright v Morton (TT363/96, 638/94, 494/94, Dunedin, 19/09/96), the landlord applied for termination of a fixed term tenancy. The tenant was aware of the application and vacated the premises. The landlord then withdrew their application for termination and claimed rent arrears to the end of the fixed term on the basis that the tenant had abandoned the tenancy. At pages 9 and 10 of the judgement the judge stated: “In short, in my view Mr Horder is correct in his submission that the landlords clearly wanted the tenant out of the premises and their desire for vacant possession was achieved when the tenant voluntarily left the premises on 9 August. In my view there was ample evidence before the tenant adjudicator to support a finding that the tenant did not in fact abandon the premises but left in accordance with the landlord’s wishes as reinforced by the application for an order to the Tenancy tribunal terminating the tenancy. Mr Horder submitted and Mr Morton conceded that if the landlords had obtained an order terminating the tenancy the landlords would not have been entitled to future rent.”
Applying the principles in Wright v Morton, the Tenancy Tribunal in a later case of McDowell Real Estate Ltd v Haraki TT 11/01869/RO, 2 December 2011, [2011] RTHNZ 41, 2011 WL 13174245 declined to allow the landlord to amend their original application for termination for rent arrears to abandonment. This case concerned a fixed-term tenancy. The landlord originally applied to the Tribunal for an order for termination for rent arrears. The tenant vacated the property 13 days after the application was filed. The landlord then sought to amend their original application for termination for rent arrears to abandonment, as this would allow them to seek rent arrears to the end of the fixed term, as opposed to the termination date.
The current case is similar to Wright v Morton and McDowell Real Estate Ltd v Haraki. Like the landlords in those cases, the landlord in this case first filed their application for termination on the basis of breach of the tenant’s obligation to pay rent. Like the tenants in those cases, the tenant in this case voluntarily left the premises after becoming aware of the landlord’s application. The landlord wanted the tenant out of the premises and their desire for vacant possession was achieved when the tenant voluntarily left.
The landlord’s application for termination due to abandonment is dismissed. I find that the tenant did not abandon the premises, but left voluntarily in accordance with the landlord’s wishes. Breach of the tenant’s obligations
Where a landlord applies to terminate for breach, and rent is at least 21 days in arrears on the hearing date, the Tribunal must terminate the tenancy. See sections 55 and 56(2) Residential Tenancies Act 1986.
At the date of the hearing, rent was in arrears of $14,771.43 (47 days). Rent was at least 21 days in arrears at the hearing date. The tenancy is terminated.

How much does the tenant owe?

The landlord provided a rent summary which records the total rent arrears up to 30 October 2024 as $14,771.43.
The tenant claimed that they should only be liable for rent arrears up to 4 October 2024 of $6,600.00. The tenant stated that they had a phone call with one of the employees at NZPRO Property Management Ltd around late September 2024/early October 2024. The tenant was unable to recall the discussion in detail, but submitted that the message conveyed to them by this person was that if the tenant left the property, they would only be liable to pay rent up to the vacate date, plus additional costs incurred in finding a new tenant. The tenant submitted that this was a verbal conversation they had over the phone. There was no additional email or text message correspondence with this employee. The tenant did not summons this employee as a witness to support their case at the hearing.
The landlord claimed that the tenant should pay rent arrears up to the date of the hearing, namely $14,771.43. The landlord submitted that they had discussed the process for assigning the tenancy with the tenant and had been very clear in their communication with the tenant that they would remain liable for payment of the rent until a new tenant was found. The landlord provided the Tribunal with an email sent to the tenant on 23 September 2024. In this email, the landlord outlined the process for assigning the tenancy. The final paragraph of the email reads: “Please be reminded that you will need to continue paying rent until we find the new replacement...”
In the absence of any supporting evidence to corroborate the tenant’s version of events, I am not satisfied on the balance of probabilities that the landlord should be estopped from claiming rent arrears up to the date of the hearing. The email sent to the tenant on 23 September 2024 clearly and unequivocally advised the tenant that they would remain liable for payment of rent until a new tenant was found.
The landlord’s claim for rent arrears is granted for a total of $14,771.43 Refund of the bond
The landlord claimed that the bond should be refunded to them in full to repay some of the arrears.
The tenant claimed that the bond should be refunded to them and a payment plan arranged to repay the arrears. The tenant stated that they required the bond to help them get back on their feet.
The purpose of a bond is to provide security to the landlord in case a tenant does not pay rent or breaches any of their other obligations under the RTA. In this case, the rent arrears are significant, and the bond will go some way towards reimbursing the landlord for breach of the tenant’s obligations. The bond will not cover the whole rent arrears and the landlord will need to pursue the tenant for payment of the balance.
In the circumstances of this case, I find it appropriate that the bond should be refunded to the landlord in full. Filing fee
Because Nzpro Property Management Limited As Agent For Mj Corporation Ltd. has wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 5021791 — net $5,998.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 30 October 2024	$14,771.43	Rent arrears to 30 October 2024
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,998.43
Total payable by Tenant to Landlord	$5,998.43

Order

The tenancy of Cardena Esera and Tua Taka at 27 Tau Drive, Flat Bush, Auckland 2019 is terminated, and possession is granted to Nzpro Property Management Limited As Agent For Mj Corporation Ltd immediately.
Cardena Esera and Tua Taka must pay Nzpro Property Management Limited As Agent For Mj Corporation Ltd. $5,998.43 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $8,800.00 (6537052-001) to Nzpro Property Management Limited As Agent For Mj Corporation Ltd. immediately.

Reasons

Both parties attended the hearing.
The tenancy began on 5 June 2024 and was a fixed-term tenancy until 2 June 2026.
The landlord applied for termination of the tenancy for breach of the tenant’s obligations and abandonment, rent arrears and refund of the bond. Termination for abandonment or breach of the tenant’s obligations?
The landlord’s application for termination for abandonment is dismissed however, their application for termination due to breach of the tenant’s obligations is granted. I deal with each claim for termination in turn below. Abandonment
On 1 October 2024, the landlord applied to the Tribunal for termination for breach of the tenant’s obligations under section 56 Residential Tenancies Act 1986. The landlord claimed that the tenant was in rent arrears and a 14-day notice was sent on 30 September 2024.
On 8 October 2024, the landlord discovered that the tenant had left the property and filed a new application with the Tribunal that same day for termination due to abandonment. The landlord requested that their abandonment application be dealt with under section 91AA of the Residential Tenancies Act 1986. This section allows the Tribunal to make a finding that the tenant has abandoned the property and terminate the tenancy on the papers within 10 days of the application being filed. This process is known as “expedited abandonment”.
On 17 October 2024, the Tribunal issued an order declining to grant the landlord’s application for expedited abandonment. The landlord’s application for termination due to abandonment was scheduled to be heard on the same day as their original application for termination for breach of the tenant’s obligations, namely 30 October 2024.
At the hearing on 30 October 2024, the landlord confirmed that they were only seeking rent arrears up to the date of the hearing on 30 October 2024. A key difference between an application for termination of a fixed-term tenancy due to abandonment, as opposed to breach of the tenant’s obligations, is that an application for abandonment allows the landlord to seek rent arrears up to the end of the fixed-term period or the date of commencement of a new tenancy. See section 61(3)(b) RTA. An application for termination of a fixed-term tenancy for breach of a tenant’s obligations only allows the landlord to claim rent arrears up to the date of the hearing. As the landlord only sought rent arrears up to the date of the hearing, I invited them to withdraw their application for termination due to abandonment and indicated that I would grant it for breach of the tenant’s obligations. The landlord declined to do this.
In Wright v Morton (TT363/96, 638/94, 494/94, Dunedin, 19/09/96), the landlord applied for termination of a fixed term tenancy. The tenant was aware of the application and vacated the premises. The landlord then withdrew their application for termination and claimed rent arrears to the end of the fixed term on the basis that the tenant had abandoned the tenancy. At pages 9 and 10 of the judgement the judge stated: “In short, in my view Mr Horder is correct in his submission that the landlords clearly wanted the tenant out of the premises and their desire for vacant possession was achieved when the tenant voluntarily left the premises on 9 August. In my view there was ample evidence before the tenant adjudicator to support a finding that the tenant did not in fact abandon the premises but left in accordance with the landlord’s wishes as reinforced by the application for an order to the Tenancy tribunal terminating the tenancy. Mr Horder submitted and Mr Morton conceded that if the landlords had obtained an order terminating the tenancy the landlords would not have been entitled to future rent.”
Applying the principles in Wright v Morton, the Tenancy Tribunal in a later case of McDowell Real Estate Ltd v Haraki TT 11/01869/RO, 2 December 2011, [2011] RTHNZ 41, 2011 WL 13174245 declined to allow the landlord to amend their original application for termination for rent arrears to abandonment. This case concerned a fixed-term tenancy. The landlord originally applied to the Tribunal for an order for termination for rent arrears. The tenant vacated the property 13 days after the application was filed. The landlord then sought to amend their original application for termination for rent arrears to abandonment, as this would allow them to seek rent arrears to the end of the fixed term, as opposed to the termination date.
The current case is similar to Wright v Morton and McDowell Real Estate Ltd v Haraki. Like the landlords in those cases, the landlord in this case first filed their application for termination on the basis of breach of the tenant’s obligation to pay rent. Like the tenants in those cases, the tenant in this case voluntarily left the premises after becoming aware of the landlord’s application. The landlord wanted the tenant out of the premises and their desire for vacant possession was achieved when the tenant voluntarily left.
The landlord’s application for termination due to abandonment is dismissed. I find that the tenant did not abandon the premises, but left voluntarily in accordance with the landlord’s wishes. Breach of the tenant’s obligations
Where a landlord applies to terminate for breach, and rent is at least 21 days in arrears on the hearing date, the Tribunal must terminate the tenancy. See sections 55 and 56(2) Residential Tenancies Act 1986.
At the date of the hearing, rent was in arrears of $14,771.43 (47 days). Rent was at least 21 days in arrears at the hearing date. The tenancy is terminated.

How much does the tenant owe?

The landlord provided a rent summary which records the total rent arrears up to 30 October 2024 as $14,771.43.
The tenant claimed that they should only be liable for rent arrears up to 4 October 2024 of $6,600.00. The tenant stated that they had a phone call with one of the employees at NZPRO Property Management Ltd around late September 2024/early October 2024. The tenant was unable to recall the discussion in detail, but submitted that the message conveyed to them by this person was that if the tenant left the property, they would only be liable to pay rent up to the vacate date, plus additional costs incurred in finding a new tenant. The tenant submitted that this was a verbal conversation they had over the phone. There was no additional email or text message correspondence with this employee. The tenant did not summons this employee as a witness to support their case at the hearing.
The landlord claimed that the tenant should pay rent arrears up to the date of the hearing, namely $14,771.43. The landlord submitted that they had discussed the process for assigning the tenancy with the tenant and had been very clear in their communication with the tenant that they would remain liable for payment of the rent until a new tenant was found. The landlord provided the Tribunal with an email sent to the tenant on 23 September 2024. In this email, the landlord outlined the process for assigning the tenancy. The final paragraph of the email reads: “Please be reminded that you will need to continue paying rent until we find the new replacement...”
In the absence of any supporting evidence to corroborate the tenant’s version of events, I am not satisfied on the balance of probabilities that the landlord should be estopped from claiming rent arrears up to the date of the hearing. The email sent to the tenant on 23 September 2024 clearly and unequivocally advised the tenant that they would remain liable for payment of rent until a new tenant was found.
The landlord’s claim for rent arrears is granted for a total of $14,771.43 Refund of the bond
The landlord claimed that the bond should be refunded to them in full to repay some of the arrears.
The tenant claimed that the bond should be refunded to them and a payment plan arranged to repay the arrears. The tenant stated that they required the bond to help them get back on their feet.
The purpose of a bond is to provide security to the landlord in case a tenant does not pay rent or breaches any of their other obligations under the RTA. In this case, the rent arrears are significant, and the bond will go some way towards reimbursing the landlord for breach of the tenant’s obligations. The bond will not cover the whole rent arrears and the landlord will need to pursue the tenant for payment of the balance.
In the circumstances of this case, I find it appropriate that the bond should be refunded to the landlord in full. Filing fee
Because Nzpro Property Management Limited As Agent For Mj Corporation Ltd. has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 5021791 — Rent arrears at 27 Tau Drive, Flat Bush, Auckland 2019

At a glance

Tenancy Tribunal case 5021791 — Rent arrears at 27 Tau Drive, Flat Bush, Auckland 2019

At a glance

Award balance

Claims & awards

Order

Reasons

How much does the tenant owe?

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?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions