What was the outcome of Tenancy Tribunal case 5117148?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 5117148?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5117148?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5117148?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11435332-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5117148?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 5117148?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5117148?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5117148?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11435332-Tenancy_Tribunal_Order.pdf.

36 Parkes Avenue, Saint Johns Hill, Whanganui 4501 Tenancy Tribunal Case 5117148 — 14-day notice

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The applicant is granted possession of the property at 36 Parkes Avenue, Saint John’s Hill, Whanganui 4501 today Monday 17 February 2025 at 5.00 pm.

Reasons

Both parties attended the hearing by telephone.
The applicant has applied under section 65 Residential Tenancies Act 1986 (“RTA”) for a possession order for the property owned by it at 36 Parkes Avenue, Saint John’s Hill, Whanganui 4501 (“the property”).
While this decision has not referred to all the evidence presented, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to the applicant’s claim has been omitted.
By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
The applicant provided the following evidence in support of its application: a. The parties entered into an agreement for sale and purchase of the property dated 10 June 2019 (“the contract”) which provided for the respondent as purchaser to: i. Pay a deposit of $18,000.00 ii. Pay $2,325.20 per month from 28 June 2019. iii. Pay the balance on a settlement date to be determined under the terms of the contract. iv. Clause 34.0 provides that if “the purchaser fails to perform any covenant or condition contained in the contract”, the vendor will give the purchaser 14 days’ notice to remedy. If the default is not remedied, “the agreement will be cancelled”. b. As the purchaser had not completed settlement within the timeframe contained in the contract, the applicant offered the respondent two options by email of 23 June 2022: i. A new contract for a period of two years; or ii. A tenancy. c. By email on 12 July 2022 the respondent accepted the first option and so rejected a tenancy of the property. d. A Deed of Variation of the contract (“the Deed”) was prepared by the applicant’s solicitor. The applicant claimed that it had been signed by both parties but only an unsigned copy was supplied in evidence. An email from the applicant’s solicitor dated 21 October 2024 advised the applicant that the respondent had not signed the Deed of Variation. e. The applicant’s solicitor issued a Settlement Notice to the purchaser on 3 December 2024 giving the purchaser 12 working days to settle the purchase. f. The purchaser has not settled the purchase and has not made any monthly payments since 28 June 2024. g. The applicant confirmed that it had not agreed to a residential tenancy with the respondent and that he had not given the respondent any right to occupy the property other than as contained in the contract. h. In summary, the applicant’s position is that because the respondent has failed to settle the purchase and the contract is at an end, the respondent occupies the property as a squatter and the applicant needs to obtain a possession order to cancel the contract pursuant to section 28(4)(a) of the Property Law Act 2007.
The respondent gave evidence at the hearing as follows: a. He was unable to obtain finance to purchase the property and could not proceed to settlement. b. Upon the expiry of the contract in 2022, the applicant granted the respondent a residential tenancy of the property and that all payments made since have been for rent. c. He has not made any payments since June 2024 as he believes the deposit he paid of $18,000.00 can be applied to rent due. d. He believes that there is an email exchange between the parties confirming this but has not produced a copy. e. He confirmed that he has not signed the Deed. f. In summary, the respondent’s position is that he occupies the property as a tenant.
Section 65 RTA was considered by the High Court in Sergeant v Nigro and Tapsell [2019] NZHC 328. The Court held that there are three conditions which must be met before an order can be made: a. The premises must be residential premises. b. The applicant is entitled to possession. c. Another person or persons are in possession as squatters, trespassers or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so.
If these three elements are established then the Tribunal must make a possession order.
The premises are clearly residential. It remains to consider whether the applicant is entitled to possession and whether the respondent has been granted a right of occupation.
The respondent is in default under the contract and has been served a Settlement Notice that has not been complied with by the purchaser. Pursuant to clause 11 of the contract, the applicant is entitled to cancel the contract once it has taken possession of the property. There is nothing in the evidence before the Tribunal that suggests that the applicant as vendor under the contract does not have a right to cancel the contract once it has possession.
The fact that the Deed has not been signed does not alter the nature of the parties’ contractual relationship: it remains that of vendor and purchaser under the contract. There is no evidence before the Tribunal that the relationship changed to that of landlord and tenant. Indeed, the landlord’s email evidence is that the respondent rejected an offer of that relationship.
The respondent has failed to provide any documentary evidence in support of his claim that the applicant agreed to a residential tenancy. On the contrary, the applicant has provided clear documentary evidence that the respondent rejected the offer of a tenancy and accepted an extension of the contract.
On the evidence before the Tribunal, the applicant has proven on the balance of probabilities that the applicant as the owner is entitled to possession and the respondent does not have a right of occupation granted by the owner/applicant. The applicant is entitled to a possession order so that the contract can be cancelled.

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The applicant is granted possession of the property at 36 Parkes Avenue, Saint John’s Hill, Whanganui 4501 today Monday 17 February 2025 at 5.00 pm.

Reasons

Both parties attended the hearing by telephone.
The applicant has applied under section 65 Residential Tenancies Act 1986 (“RTA”) for a possession order for the property owned by it at 36 Parkes Avenue, Saint John’s Hill, Whanganui 4501 (“the property”).
While this decision has not referred to all the evidence presented, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to the applicant’s claim has been omitted.
By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
The applicant provided the following evidence in support of its application: a. The parties entered into an agreement for sale and purchase of the property dated 10 June 2019 (“the contract”) which provided for the respondent as purchaser to: i. Pay a deposit of $18,000.00 ii. Pay $2,325.20 per month from 28 June 2019. iii. Pay the balance on a settlement date to be determined under the terms of the contract. iv. Clause 34.0 provides that if “the purchaser fails to perform any covenant or condition contained in the contract”, the vendor will give the purchaser 14 days’ notice to remedy. If the default is not remedied, “the agreement will be cancelled”. b. As the purchaser had not completed settlement within the timeframe contained in the contract, the applicant offered the respondent two options by email of 23 June 2022: i. A new contract for a period of two years; or ii. A tenancy. c. By email on 12 July 2022 the respondent accepted the first option and so rejected a tenancy of the property. d. A Deed of Variation of the contract (“the Deed”) was prepared by the applicant’s solicitor. The applicant claimed that it had been signed by both parties but only an unsigned copy was supplied in evidence. An email from the applicant’s solicitor dated 21 October 2024 advised the applicant that the respondent had not signed the Deed of Variation. e. The applicant’s solicitor issued a Settlement Notice to the purchaser on 3 December 2024 giving the purchaser 12 working days to settle the purchase. f. The purchaser has not settled the purchase and has not made any monthly payments since 28 June 2024. g. The applicant confirmed that it had not agreed to a residential tenancy with the respondent and that he had not given the respondent any right to occupy the property other than as contained in the contract. h. In summary, the applicant’s position is that because the respondent has failed to settle the purchase and the contract is at an end, the respondent occupies the property as a squatter and the applicant needs to obtain a possession order to cancel the contract pursuant to section 28(4)(a) of the Property Law Act 2007.
The respondent gave evidence at the hearing as follows: a. He was unable to obtain finance to purchase the property and could not proceed to settlement. b. Upon the expiry of the contract in 2022, the applicant granted the respondent a residential tenancy of the property and that all payments made since have been for rent. c. He has not made any payments since June 2024 as he believes the deposit he paid of $18,000.00 can be applied to rent due. d. He believes that there is an email exchange between the parties confirming this but has not produced a copy. e. He confirmed that he has not signed the Deed. f. In summary, the respondent’s position is that he occupies the property as a tenant.
Section 65 RTA was considered by the High Court in Sergeant v Nigro and Tapsell [2019] NZHC 328. The Court held that there are three conditions which must be met before an order can be made: a. The premises must be residential premises. b. The applicant is entitled to possession. c. Another person or persons are in possession as squatters, trespassers or otherwise than pursuant to any right of occupation granted by a person having lawful authority to do so.
If these three elements are established then the Tribunal must make a possession order.
The premises are clearly residential. It remains to consider whether the applicant is entitled to possession and whether the respondent has been granted a right of occupation.
The respondent is in default under the contract and has been served a Settlement Notice that has not been complied with by the purchaser. Pursuant to clause 11 of the contract, the applicant is entitled to cancel the contract once it has taken possession of the property. There is nothing in the evidence before the Tribunal that suggests that the applicant as vendor under the contract does not have a right to cancel the contract once it has possession.
The fact that the Deed has not been signed does not alter the nature of the parties’ contractual relationship: it remains that of vendor and purchaser under the contract. There is no evidence before the Tribunal that the relationship changed to that of landlord and tenant. Indeed, the landlord’s email evidence is that the respondent rejected an offer of that relationship.
The respondent has failed to provide any documentary evidence in support of his claim that the applicant agreed to a residential tenancy. On the contrary, the applicant has provided clear documentary evidence that the respondent rejected the offer of a tenancy and accepted an extension of the contract.
On the evidence before the Tribunal, the applicant has proven on the balance of probabilities that the applicant as the owner is entitled to possession and the respondent does not have a right of occupation granted by the owner/applicant. The applicant is entitled to a possession order so that the contract can be cancelled.

Tenancy Tribunal case 5117148 — 14-day notice at 36 Parkes Avenue, Saint Johns Hill, Whanganui 4501

At a glance

Tenancy Tribunal case 5117148 — 14-day notice at 36 Parkes Avenue, Saint Johns Hill, Whanganui 4501

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions