What was the outcome of Tenancy Tribunal case 5090448?

The tribunal order states: Rebecca Flavell and Vaughan Biggs must pay Abode Property Management

How much money was awarded in case 5090448?

Filing Fee: $27.00 awarded to tenant; Rent Arrears: $7,371.43 awarded to landlord

What type of tenancy dispute was case 5090448?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5090448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11360245-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5090448?

The tribunal order states: Rebecca Flavell and Vaughan Biggs must pay Abode Property Management

How much money was awarded in case 5090448?

Filing Fee: $27.00 awarded to tenant; Rent Arrears: $7,371.43 awarded to landlord

What type of tenancy dispute was case 5090448?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5090448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11360245-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 386 Richmond Road, Grey Lynn, Auckland 1021 Tenancy Tribunal Case 5090448 — Rent arrears

Claims and awards in Tenancy Tribunal application 5090448 — net $7,344.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Adjusted rent arrears and rent to 17 Feb 2025	$7,371.43		Adjusted rent arrears and rent to 17 Feb 2025
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$7,371.43	$27.00
Net award	$7,344.43
Total payable by Tenant to Landlord	$7,344.43

Claims and awards in Tenancy Tribunal application 5090448 — net $7,344.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Adjusted rent arrears and rent to 17 Feb 2025	$7,371.43		Adjusted rent arrears and rent to 17 Feb 2025
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$7,371.43	$27.00
Net award	$7,344.43
Total payable by Tenant to Landlord	$7,344.43

Order

Rebecca Flavell and Vaughan Biggs must pay Abode Property Management Limited Leigh Richmond $7,344.43 immediately, being rent arrears (adjusted for failure to mitigate loss) to the end of the fixed term tenancy.

Reasons

Both parties attended the hearing. Property Manager Ms Richmond appeared as agent for the landlord. Both tenants were present.
The tenant has applied for an order reducing their liability for rent arrears to the end of the tenancy on the basis the landlord failed to mitigate their loss following the tenant moving out of the premises three months prior to the end of the fixed term tenancy.
The landlord has cross-applied seeking rent arrears and rent to the end of the fixed term tenancy.
The parties previously appeared before the tribunal three months ago. In that decision, the tenant’s application to reduce the fixed term tenancy was dismissed. 1 Background
The parties confirmed the background facts as recorded in the previous decision remain agreed. Those background facts are: a. The parties entered into a fixed term tenancy from 17 February 2024 to 17 February 2025. b. The tenants found a property to purchase which exactly suited their needs. They made an offer that was accepted with an extended settlement date. c. The tenants advised the Property Manager (“PM”) on 2 September 2024 that they wished to be released from their fixed term tenancy from early November 2024. They agreed to meet the landlord’s reasonable expenses in arranging a new tenancy. The tenants were willing to be flexible over the exact end date to coincide with the start of a new tenancy and, ideally, the settlement date for their purchase. d. The PM arranged to have photographs taken for advertising purposes. e. In early October 2024 the tenants made enquiries of the PM regarding progress as they had not seen any advertisement for the property. f. The PM advised that the landlord had now decided to sell the property. The tenants co-operated fully with the selling agent in arranging for photographs to be taken and allowing open homes. g. The tenants believed that the landlord had agreed to the tenancy ending in early November 2024. When informed by the PM that the landlord was insisting on the tenants being liable for rent until settlement of the sale, the tenants felt that the goodwill they had fostered was lost. They therefore denied the selling agent further access. h. The landlord then decided not to sell the property until the end of the fixed term tenancy and instructed the PM to find a new tenant, but on a fixed term to 17 February 2025, the end of the tenants’ fixed term. i. The landlord has not been able to find a new tenant to date. 1 [2024] NZTT 5043388. The law as to mitigation of loss
Section 49 of the Residential Tenancies Act 1986 (the 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.
Therefore, if either the landlord or the 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.
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, 2 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.
The authors of Law of Contract in New Zealand put it this way: 3 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.
The duty to mitigate loss has recently been applied in the context of tenancy law in Huang v Ashworth [2024] NZDC 15726, and specifically in circumstances where a tenant seeks to end a fixed-term tenancy early, in Davies v Clarke [2017] NZDC 21608. Evidence and submissions
The tenant says the landlord breached their duty to mitigate their loss. The tenants acknowledge that they were asking to break the 12-month fixed term tenancy three months early, but they say the landlord owed them a duty of good faith to work with them in a situation where the tenants had approached the landlord two months prior to the date they wish to end the tenancy.
The tenants say they spoke to the PM on 2 September to request an early end to the fixed-term tenancy and agreed, in order to help reduce the landlord’s exposure to any risk, that they would pay the costs of arranging a new tenancy. They say they had negotiated a long settlement for the purchase of their new property to allow time for new tenants to be found for the rental property. 2 British Westinghouse Electric and Manufacturing Co v Underground Electric Railway Co of London [1912] AC 673 (HL). 3 Burrows et al Law of Contract in New Zealand, 5 th Ed, p. 842.
On 3 September, the PM came to the property and took photographs purportedly in order to post an advertisement for a new tenancy. The tenants say their expectation was that the property would be advertised immediately, and point to an email from the PM to the landlord on the same day in which the PM says, “I’m taking photos this morning and then can list the advert this afternoon.”
The tenants say that in the days and weeks that followed they did not see the premises advertised for rent on Trademe. On 8 September the tenant sent the PM a text message asking what the plans were for re-letting, and followed up again on 10 September 2024, but received no response.
The tenants say there were no viewings of the property by prospective tenants at any time while they were in the premises.
The tenants say the next contact they had was on 3 October 2024, when the PM advised the tenants the landlord had decided to sell the property instead of re-tenanting it. On the same day, the tenants were contacted by a real estate agent instructed to sell the house. The tenants met with that agent on 4 October 2024 to discuss a marketing program and during which they agreed to allow open homes in the three weekends leading up to an auction on 7 November 2024.
Following the change in strategy by the landlord, the tenants called the PM on Friday 4 October. They stated they were happy to assist in the selling process but wanted confirmation from the landlord that the tenants would be released from the fixed term tenancy on 7 November 2024. The PM said she would get in touch with the landlord and come back to the tenants.
On the same day, the PM called back to say the landlord would not be releasing the tenants. An email from the landlord to the PM dated 4 October 2024 was provided to the tenants in which the landlord stated they were not willing to release the tenants from their tenancy agreement and would only be amenable to release once the property was either sold or had “become unconditional”, or, failing that, until a suitable new tenant was found.
The tenants say this was not what they understood to have been agreed. They say they became worried that they would be held liable for rent until the end of the fixed term tenancy, and on 6 October 2024, they informed the real estate agent that they would no longer provide access to the premises for the purposes of selling it. They say they were no longer willing to put up with the disruption of their peaceful enjoyment (three weekends of open homes on both Saturday and Sunday) without agreement they could end the tenancy in November, and therefore they withdrew their consent.
The tenants say that at no time did they withdraw their consent for viewings to be held for prospective tenants. The PM confirmed she understood the withdrawal of consent was for open homes/purposes of selling only.
By email dated 14 October 2024, the tenant clarified to the PM that they were happy to cover the costs of reletting the premises and would allow tenant viewings.
The tenants say the property was only listed for rent on Trademe on 7 October 2024 and that both the delay in listing it, and its restrictive terms, made it unattractive to prospective tenants. A copy of the 7 October 2024 Trademe listing had not been filed but the listing was produced during the hearing. 4 The restrictive terms referred to were, “The property is available from 8 November 2024 for a short term lease.” The listing did not refer to an end date of the short- term lease.
The tenants say it was the landlord’s position that the “short-term lease” would only be until 17 February 2025, as this was stated in an email from the landlord to the PM dated 7 October 2024. In that email exchange, the PM sought to confirm the terms of a new tenancy with the landlord and suggested the terms be: 12 month fixed term agreement, rent $1290 per week, water additional, no pets and start date 8 November 2024. The landlord responded saying any new tenancy should only be an assignment of the existing fixed-term agreement, that is, until 17 February 2025.
The tenant relies on the authority Davies v Clarke [2017] NZDC 21608 in support of their claim that the landlord did not do enough to mitigate their loss. They say that when the tenant gave notice on 3 September 2024, being two months prior to the proposed tenancy end date, no action was taken to attempt to re-tenant the property until 7 October 2024. They say that in that 5-week period the landlord oscillated between re-tenanting for a 12-month period, selling, and then re-tenanting but only for a shorter fixed-term. They say that if the property had been listed in a prompt manner in September, it is likely new tenants would have been secured and the tenants would not have been liable for rent up until February 2025.
Further, they say the landlord did not approach the tenants to enquire whether the landlord could re-tenant on a short-term tenancy at a lesser weekly rent and ask the tenants to subsidise the short-fall (only). They say they would have been amendable to such an arrangement. The tenants confirmed they did not make such an offer to the landlord.
For the landlord, the PM largely confirmed the tenant’s narrative of events, but gave some additional evidence. 4 Viewed by all parties on Ms Richmond’s phone.
The PM confirmed when she contacted the landlord to inform them the tenants wished to leave, she had taken photos and suggested to the landlord that she could “list the advert this afternoon.” However, the PM said that after sending that email, she reflected and thought there was no necessity to advertise the tenancy straight away because it was still two months until the tenants were due to vacate. The PM said the usual lead time for advertising a tenancy is four weeks.
The PM says she did then list the tenancy for rent in the last week of September. The PM did not have evidence of the listing. The PM said it was the same text and information as the advert listed on 7 October but did not refer to it being a “short-term lease.” The PM said it was a “gold listing” on Trademe, which meant she paid extra for it to be at the top of the listings.
The PM says she removed the listing on 3 October 2024 when the landlord instructed her the property was going to be put on the market for sale instead. Between the last week of September and 3 October 2024, the PM says she received some interest via email, but none advanced to the point of viewing.
The PM said the rental market at that time was “funny” in that some places would be rented quickly, within a matter of days, and others not. The PM said the advertised rent, being $1290 (the same rent as the tenants were paying) was a fair market rent, and had in fact been reduced just prior to the current tenants moving in. It was previously $1350 per week.
The PM says the landlord had always intended to sell the property at the end of the fixed term in February 2025 as they had a financial need relating to another property they owned in Tauranga. The PM says that in early October the landlord made the decision to sell rather than re-tenant, in-line with their ultimate plans and also because the landlord thought putting the property on the market would be a quicker resolution than finding replacement tenants. The PM says the landlord agreed to release the current tenants if a buyer was secured at the auction to be held on 7 November 2024.
However, on 6 October 2024, when the tenants communicated that they would no longer allow access to the real estate agent responsible for selling the property, the PM says the landlord reverted to the original plan to re-tenant the property.
On 7 October 2024 the PM emailed the landlord asking if she should “start advertising today.” When the Tribunal asked what the reference to “start” advertising was, in circumstances where the PM said they had previously advertised the property in late September, the PM said it should have been “re- start” advertising.
The PM says the same advertisement as was posted in the last week of September was re-listed on Trademe, albeit that it now referred to a short term lease. The PM says she did not state the end of the short term lease as there was some flexibility available, although her instructions were it could not go beyond March 2025.
The PM said there was some interest, however the one prospective tenant that showed interest ultimately did not view the property as it did not come furnished. The PM said most prospective tenants wanted a six-month or 1-year fixed-term tenancy.
The advert has recently expired (in the weekend just been: 25 – 26 January 2025) and that given the fixed-term expires 17 February 2025 there is little hope of finding a tenant for the remainder of the term.
The PM said if the tenant had approached the PM/landlord with an offer to advertise the tenancy at a lower rate and have it subsidised by the tenants to the full current rent, the landlord would have been open to those options. The PM also said she had a wide network and she thought she could have found someone who needed such a short-term lease at a lower rate, for example those looking for a short tenancy while they undertake renovations.
The PM says the landlord tried to work with the tenants to find the best solution and says they are entitled to the full rent under the fixed-term tenancy as no suitable new tenant was found before its expiry.
The landlord therefore seeks the full rent to the end of the tenancy. Evidence was provided that the rent arrears to 31 January 2025 would be $11,610.00.
A figure was not provided for rent claimed until the end of the tenancy. I calculate that the landlord seeks a further $3,132.85 in future rent (being two weeks to 14 February 2025, and an additional three days to 17 February 2025 at a daily rate of $184.29 per day) in addition to the $11,610.00 in arrears to 31 January 2025.
The landlord’s total claim for rent arrears and rent to 17 February 2025 is therefore $14,742.86. Decision
I am satisfied the tenant has proven that the landlord did not take all reasonable steps to limit the loss arising from the tenant’s breach of the fixed-term tenancy.
There is no doubt the tenant was in breach of the fixed-term tenancy when they sought to end the tenancy on 7 November 2024 (or a date near to). The tenants acknowledge that. However, in circumstances where the landlord was first approached on 3 September 2024 and did not take steps to advertise the property for rent until 7 October 2024, I find the landlord failed to take reasonable steps to mitigate their loss.
As stated by DCJ Carruthers in Davies v Clarke and Snead which considered similar circumstances: 5 Having received that notice, there was still an obligation on the appellants to mitigate any losses by taking sensible, prudent and immediate steps to find another tenant and to cover the potential period of loss.
I am not satisfied the landlord has proven the property was advertised for rent in the week of 23 September 2024. The PM says the advert is unavailable to produce as evidence because it is not retrievable now that the listing has expired. However, given her evidence is that the landlord paid for a “gold listing” at that time, I would expect evidence such as a receipt from Trademe for that listing would be available. In the absence of such evidence, I am not satisfied the property was listed for rent at that time.
Furthermore, the tenants say in the days and weeks after 3 September 2024 they regularly checked for a listing on Trademe and had an alert set up which would have notified them if a listing had gone up. They say they did not see a listing.
I am satisfied the property was advertised for rent on 7 October 2024. That is consistent with the Trademe listing which was produced in the course of the hearing. That advertisement was listed just one month before the tenants hoped to be able to end the tenancy and one month after the landlord had received notice that the tenants wished to end the tenancy.
While I find the landlord did not take immediate steps to find another tenant, I do not consider the landlord was required to approach the tenants with a compromise that the tenants pay a “subsidy” towards the remaining rent if a new tenant could be found at a lesser rent. There is no obligation on the landlord to make that proposal, and indeed the tenants were free to make such an offer to the landlord but chose not to.
As in the case of Davies v Clarke and Snead, I find landlord’s failure to mitigate the loss is appropriately recognised by reducing the amount of rent owed by the tenant to the end of the fixed-term tenancy by half. I have calculated the award in this way: Rent arrears and rent to 17 Feb 2025$14,742.86 Less failure to mitigate loss Arrears claimable Filing fee reimbursement -$7,371.43 $7,371.43 -$27.00 Total award$7,344.43 5 Davies v Clarke [2017] NZDC 21608 at [46]. Bond
Neither party sought an order refunding the bond which is held by the Bond Centre. The bond held is $3,870. As no application has been made, I make no order and leave it to the parties to contact the Bond Centre concerning the release of the bond.
However, I note that had I been asked to make such an order, I would have released the bond to the landlord in partial payment of the total award, which would have left the tenant to pay the outstanding $3,747.43 to the landlord. Filing fee
As the tenant has substantially succeeded with the claim the landlord must reimburse the tenant’s filing fee. Suppression
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name and/or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. See s 95A of the Residential Tenancies Act 1986 (RTA).
The tenant applied for suppression of their name. While their claim was substantially successful, a previous decision relating to the same tenancy has been published without any suppression orders being applied. Given the parties names are already made public, and the tenant did not offer any evidence of a change in circumstances which would now make suppression necessary, there is no basis to suppress the tenant’s name.
I dismiss the application for suppression.

Tenancy Tribunal case 5090448 — Rent arrears at Unit/Flat 1, 386 Richmond Road, Grey Lynn, Auckland 1021

At a glance

Tenancy Tribunal case 5090448 — Rent arrears at Unit/Flat 1, 386 Richmond Road, Grey Lynn, Auckland 1021

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