What was the outcome of Tenancy Tribunal case 5057068?

The tribunal order states: Samantha Caulton must pay Property Brokers Manawatu Limited As Agents For

How much money was awarded in case 5057068?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $33,723.00 awarded to landlord

What type of tenancy dispute was case 5057068?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5057068?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11450169-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5057068?

The tribunal order states: Samantha Caulton must pay Property Brokers Manawatu Limited As Agents For

How much money was awarded in case 5057068?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $33,723.00 awarded to landlord

What type of tenancy dispute was case 5057068?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5057068?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11450169-Tribunal_Order.pdf.

49 Matamau Street, Palmerston North, Palmerston North Tenancy Tribunal Case 5057068 — Rent arrears

Claims and awards in Tenancy Tribunal application 5057068 — net $33,750.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 14.2.2025, reduced for lack of mitigation	$33,723.00	Rent arrears to 14.2.2025, reduced for lack of mitigation
Filing fee	$27.00	Filing fee
Net award	$33,750.00
Total payable by Tenant to Landlord	$33,750.00

Order

Samantha Caulton must pay Property Brokers Manawatu Limited As Agents For Purple Pear Ltd $33,750.00 immediately, calculated as shown in the table below.

Reasons

The hearing was held in two parts – on 17 December 2024 and on 18 February 2025. Ms Parry, representing the landlord, attended both teleconference hearings. Ms Caulton, the tenant, only attended the teleconference hearing on 17 December 2024. At the hearing on 18 February 2025, Ms Caulton’s phone number, the last three digits being 468, was called several times, without response. As the tenant was served, the second hearing proceeded in her absence.
The landlord has applied for termination and possession, rent arrears, refund bond and refund of the application fee. At the second hearing on 18 February 2025, the landlord withdrew the claims for termination and possession and for refund of the bond.
The landlord has provided rent records which prove the amount owing to 14 February 2025 in rent arrears is $37,470.00.
There is an unusual background to this situation, as the owner of the property was managing the tenancy from 7 August 2021 until around October 2024, when they turned the management of the property over to a property management company. Prior to that, according to the property manager, of the two owners involved in managing the tenancy, apparently each believed that the other was monitoring the rent payments but in fact neither was doing so, resulting in at least over a year of unpaid rent.
The tenant said, for her part, she had arranged for her rent to be redirected from the Ministry of Social Development to the owners and, as she had not heard from the owners about any non-payment of rent, she believed that MSD were continuing to pay the rent.
The property manager then alerted the tenant to the issue with non-payment of rent around October 2024. Following that, the property manager said that the tenant was pro-active in arranging for the rent payments to be reinstated and redirected by MSD again. Since then, the property manager said that rent payments have been consistent every week. However, the property manager did not believe the tenant was as pro-active in arranging to pay off the debt owing for past rent arrears.
At the hearing on 17 December 2024, the tenant said she was going to MSD with an advocate to see if she could arrange for MSD to pay the rent arrears, despite having difficulties with MSD about this prior to the first hearing. I adjourned the hearing to provide the tenant with an opportunity to do this and directed that the tenant provide written confirmation from MSD of their position in relation to payment of the rent arrears prior to the next hearing. However, the tenant did not provide any such information from MSD for the second hearing on 18 February 2025, nor had she provided any such information to the property manager, according to Ms Parry, nor did the tenant attend the second hearing to provide any update on this.
Ms Parry said the owners want the tenant to retain her tenancy but wish to arrange for the tenant to pay extra towards the rent arrears debt. Mitigation of loss
There is an obligation under the Residential Tenancies Act 1986 (“RTA”) that landlords mitigate their loss. That requirement is found in section 49 RTA which 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 question then becomes, what are the rules of law relating to mitigation of loss or damage following a contract breach? The rules of law are summarised in Halsbury’s Laws of England (4 th ed, 1975) vol 12 at [1193]-[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.
In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689, Lord Haldane described the rule as to mitigation of loss as follows: That the 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.
It is open to the Tribunal to reduce the level of rent ordered to be paid, following a finding that the landlord failed to mitigate their loss. I note for example, the District Court decision of Dunn and Dunn v Beedie and Beedie CIV-2014-088- 000349. In that case, the Tribunal determined that: In this instance the Beedies breached the agreement by falling into rent arrears. Mr & Mrs Dunn took some steps but failed to take the ultimate step, which was to terminate the tenancy. In recognition of this failure to properly mitigate the loss I have reduced the amount of rent arrears owed by 10%.
The Dunns’ appealed the Tribunal’s decision to the District Court. What happened then was somewhat unusual because the Beedies requested that the appeal be found in the landlord’s favour thereby requiring that they pay the full arrears to the landlord, but the Court commented that: I note in passing that the adjudicator could not be faulted for rightly pointing to s 49 of the Act and there have been cases where that clause has worked to reduce rent arrears where failure to mitigate exists.
In this case, from the rent summary provided, the rent fell into arrears early in the tenancy from around November 2021, escalating in amount for the first half of 2022, then reducing again in July 2022. After a rent payment on 6 June 2023, there were no rent payments made for a period of 16 months, other than one payment of $510.00 on 6 September 2023, until 9 October 2024, by which time the amount of rent arrears had ballooned significantly to $35,940.00.
The property manager said the owners had health and other issues. However, even allowing for the reasons provided by the landlord for not taking action sooner, namely a misunderstanding between the two owners about who was monitoring rent payments, and their health issues, the rent arrears have been allowed to grow significantly over the period of the tenancy without the landlord mitigating the situation by seeking any rent arrears order or termination earlier.
In the circumstances and from the evidence, I find the landlord has failed to properly mitigate their loss regarding rent arrears. As such, I reduce the rent arrears owing by the tenant in the amount of $37,470.00 by 10% to $33,723.00.
Therefore, the tenant is to pay the landlord a total of $33,723.00 in rent to 14 February 2025. Filing fee
Because Property Brokers Manawatu Limited As Agents For Purple Pear Ltd has substantially succeeded with the claim I have reimbursed the filing fee. Suppression
The landlord did not request name suppression whereas the tenant requested name suppression at the first hearing. The tenant has not been successful with the claim and did not provide any evidence as to her reasons for seeking name suppression. Therefore, I do not grant name suppression to the tenant. See section 95A(1) and section 95A(4) RTA.

Claims and awards in Tenancy Tribunal application 5057068 — net $33,750.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 14.2.2025, reduced for lack of mitigation	$33,723.00	Rent arrears to 14.2.2025, reduced for lack of mitigation
Filing fee	$27.00	Filing fee
Net award	$33,750.00
Total payable by Tenant to Landlord	$33,750.00

Order

Samantha Caulton must pay Property Brokers Manawatu Limited As Agents For Purple Pear Ltd $33,750.00 immediately, calculated as shown in the table below.

Reasons

The hearing was held in two parts – on 17 December 2024 and on 18 February 2025. Ms Parry, representing the landlord, attended both teleconference hearings. Ms Caulton, the tenant, only attended the teleconference hearing on 17 December 2024. At the hearing on 18 February 2025, Ms Caulton’s phone number, the last three digits being 468, was called several times, without response. As the tenant was served, the second hearing proceeded in her absence.
The landlord has applied for termination and possession, rent arrears, refund bond and refund of the application fee. At the second hearing on 18 February 2025, the landlord withdrew the claims for termination and possession and for refund of the bond.
The landlord has provided rent records which prove the amount owing to 14 February 2025 in rent arrears is $37,470.00.
There is an unusual background to this situation, as the owner of the property was managing the tenancy from 7 August 2021 until around October 2024, when they turned the management of the property over to a property management company. Prior to that, according to the property manager, of the two owners involved in managing the tenancy, apparently each believed that the other was monitoring the rent payments but in fact neither was doing so, resulting in at least over a year of unpaid rent.
The tenant said, for her part, she had arranged for her rent to be redirected from the Ministry of Social Development to the owners and, as she had not heard from the owners about any non-payment of rent, she believed that MSD were continuing to pay the rent.
The property manager then alerted the tenant to the issue with non-payment of rent around October 2024. Following that, the property manager said that the tenant was pro-active in arranging for the rent payments to be reinstated and redirected by MSD again. Since then, the property manager said that rent payments have been consistent every week. However, the property manager did not believe the tenant was as pro-active in arranging to pay off the debt owing for past rent arrears.
At the hearing on 17 December 2024, the tenant said she was going to MSD with an advocate to see if she could arrange for MSD to pay the rent arrears, despite having difficulties with MSD about this prior to the first hearing. I adjourned the hearing to provide the tenant with an opportunity to do this and directed that the tenant provide written confirmation from MSD of their position in relation to payment of the rent arrears prior to the next hearing. However, the tenant did not provide any such information from MSD for the second hearing on 18 February 2025, nor had she provided any such information to the property manager, according to Ms Parry, nor did the tenant attend the second hearing to provide any update on this.
Ms Parry said the owners want the tenant to retain her tenancy but wish to arrange for the tenant to pay extra towards the rent arrears debt. Mitigation of loss
There is an obligation under the Residential Tenancies Act 1986 (“RTA”) that landlords mitigate their loss. That requirement is found in section 49 RTA which 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 question then becomes, what are the rules of law relating to mitigation of loss or damage following a contract breach? The rules of law are summarised in Halsbury’s Laws of England (4 th ed, 1975) vol 12 at [1193]-[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.
In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689, Lord Haldane described the rule as to mitigation of loss as follows: That the 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.
It is open to the Tribunal to reduce the level of rent ordered to be paid, following a finding that the landlord failed to mitigate their loss. I note for example, the District Court decision of Dunn and Dunn v Beedie and Beedie CIV-2014-088- 000349. In that case, the Tribunal determined that: In this instance the Beedies breached the agreement by falling into rent arrears. Mr & Mrs Dunn took some steps but failed to take the ultimate step, which was to terminate the tenancy. In recognition of this failure to properly mitigate the loss I have reduced the amount of rent arrears owed by 10%.
The Dunns’ appealed the Tribunal’s decision to the District Court. What happened then was somewhat unusual because the Beedies requested that the appeal be found in the landlord’s favour thereby requiring that they pay the full arrears to the landlord, but the Court commented that: I note in passing that the adjudicator could not be faulted for rightly pointing to s 49 of the Act and there have been cases where that clause has worked to reduce rent arrears where failure to mitigate exists.
In this case, from the rent summary provided, the rent fell into arrears early in the tenancy from around November 2021, escalating in amount for the first half of 2022, then reducing again in July 2022. After a rent payment on 6 June 2023, there were no rent payments made for a period of 16 months, other than one payment of $510.00 on 6 September 2023, until 9 October 2024, by which time the amount of rent arrears had ballooned significantly to $35,940.00.
The property manager said the owners had health and other issues. However, even allowing for the reasons provided by the landlord for not taking action sooner, namely a misunderstanding between the two owners about who was monitoring rent payments, and their health issues, the rent arrears have been allowed to grow significantly over the period of the tenancy without the landlord mitigating the situation by seeking any rent arrears order or termination earlier.
In the circumstances and from the evidence, I find the landlord has failed to properly mitigate their loss regarding rent arrears. As such, I reduce the rent arrears owing by the tenant in the amount of $37,470.00 by 10% to $33,723.00.
Therefore, the tenant is to pay the landlord a total of $33,723.00 in rent to 14 February 2025. Filing fee
Because Property Brokers Manawatu Limited As Agents For Purple Pear Ltd has substantially succeeded with the claim I have reimbursed the filing fee. Suppression
The landlord did not request name suppression whereas the tenant requested name suppression at the first hearing. The tenant has not been successful with the claim and did not provide any evidence as to her reasons for seeking name suppression. Therefore, I do not grant name suppression to the tenant. See section 95A(1) and section 95A(4) RTA.

Tenancy Tribunal case 5057068 — Rent arrears at 49 Matamau Street, Palmerston North, Palmerston North

At a glance

Tenancy Tribunal case 5057068 — Rent arrears at 49 Matamau Street, Palmerston North, Palmerston North

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions