Published tribunal order
Tenancy Tribunal case 5113228 — Rent arrears at Unit/Flat Flat 4, 89 Bruce McLaren Road, Henderson,
Decided 28 Feb 2025 · Published 28 Feb 2025 · Application 5113228
Mixed / unclear
- Rent arrears
- 14-day notice
Order
- Joshua Tafeamaalii and Moira Tafeamalii owes Kāinga Ora–Homes And Communities $10,741.00 (“the debt”), being rent arrears to 3 March 2025.
- Joshua Tafeamaalii and Moira Tafeamalii must pay rent and the debt as follows: a. By paying current weekly rent of $510.00 as due on Tuesday 4 March 2025, b. By paying current weekly rent of $510.00 as due on Tuesday 11 March 2025, c. By paying current weekly rent of $510.00 as due on Tuesday 18 March 2025, and thereafter, d. By fortnightly payments of $1,120.00, being $1,020.00 for rent and $100.00 for the debt. Payments will be every other Thursday 1 , with the first payment on 27/03/2025 and continuing until the debt is paid.
- Payments will be allocated in the following order: rent, and then rent arrears. 1 Rent is due on a Tuesday but by agreement the date is set two days later on a Thursday to align with the tenant salary payments.
- If the tenants fail to pay rent and rent arrears within 2 working days of the due dates: a. The tenancy at Unit/Flat Flat 4, 89 Bruce McLaren Road, Henderson, Auckland 0612 will terminate and the landlord will have immediate possession of the premises. b. The balance of the debt will be payable immediately.
Reasons
- Both parties attended the hearing, conducted via teleconference.
- The landlord has applied for termination of the tenancy and rent arrears. The landlord wants to provide the tenants a final opportunity to repay the debt to avoid immediate termination.
Should a conditional termination order be made?
- Where rent is at least 21 days in arrears on the date the application was filed, the Tribunal must make either a final or a conditional termination order. See section 55(1)(a) and (1A) Residential Tenancies Act 1986.
- I am satisfied the tenant should have a final opportunity to pay the debt within the period specified in the order. I am not totally certain they are unlikely to commit any further relevant breach but I do not doubt their commitment and I support the landlord’s desire to provide a final opportunity.
- When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In such situations, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome.
- Given the commitment expressed by the tenants, and the flexibility granted per s 85 RTA, I have granted a conditional termination order.
- The conditional termination order will lapse if it is fully complied with. If the tenants breach the order, the possession order may be enforced for 90 days from the first breach. See section 64(4)(b) Residential Tenancies Act 1986.
- The tenants confirmed their email address for service. That has been used for the service of this order. The tenants were made aware of the terms of this conditional order at the hearing. As this order is issued after 5pm 28 February 2025, the sealing date has intentionally been forward dated to 3 March 2025. Suppression
- Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name 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.
- Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
- The landlord did not request suppression in its application and no landlord name suppression is ordered.
- At the hearing the landlord made what appears to be a blanket request for tenant name suppression, as seen in other similar applications. There were no specific reasons provided for this request apart from a belief “the privacy of our tenant outweighs the public interest in this matter”. Respectfully, the public interest in orders where termination by order is a possibility being available (as is the default) is such that some special reason should exist for any order of tenant name suppression.
- I express in this order a concern raised previously in hearings with this landlord, and again today. The concern is the blanket approach in making such requests, while well intentioned, may be counterproductive and causing additional stress or confusion for the tenant.
- In the absence of any special circumstances, in what is a sensitive hearing where the focus is rightly on constructing a viable tenant payment structure so the tenancy may continue, the introduction of the concept of name suppression, and then the need to explain to the tenants what it is (and then typically why I am declining to order it) may be a hindrance rather than a benefit to the tenant. This aside is added for landlord consideration of its current approach, as it sees fit.
- I wish the tenants every success in the challenge ahead.
- No suppression order is made.