What was the outcome of Tenancy Tribunal case 5195159?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5195159?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5195159?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5195159?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11782668-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5195159?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5195159?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5195159?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5195159?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11782668-Tribunal_Order.pdf.

21 Chester Avenue, Greenhithe, Auckland 0632 Tenancy Tribunal Case 5195159 — Exemplary damages

Order

The tenant’s application is dismissed.

Reasons

Both parties attended the hearing. The tenancy
The parties entered into a fixed-term tenancy commencing 18 February 2023 and ending 18 February 2024. On or about 9 January 2024, the parties agreed to extend the fixed-term tenancy for a further year, to 18 February 2025.
On 20 December 2024, the landlord gave the tenant notice that the tenancy would not continue past the end of the current fixed-term and the tenancy would end on 21 February 2025. The notice stated: The Residential Tenancies Act 1986 requires me to give you at least 63 days’ notice to terminate the fixed-term tenancy (and not to continue it as a periodic tenancy after the expiry date) for the following reason: 63 days – The owner of the premises requires the premises within 90 days after the termination date (as above) as the principal place of residence (for at least 90 days) for the owner or a member of the owner’s family.
The notice given by the landlord on 20 December 2024 included an offer that the tenants could provide 28 days’ notice to end the fixed-term tenancy before 21 February 2025.
On 29 December 2024, the tenants emailed the landlord giving 28 days’ notice and stated they would move out by 26 January 2025.
The tenants moved out on 26 January 2025. Burden and standard of proof
The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. The tenant’s claim
The tenant seeks compensation for the landlord breaching the RTA by terminating the tenancy on the basis the owner or a family member was going to live in the premises when in fact the owner did not occupy the premises and sold the premises instead. The tenant says the reason given for termination was therefore unlawful, and the 63 days’ notice given was less than the 90 days’ notice required when ending a tenancy with the intention to sell.
No fixed-term tenancy shall be terminated unless the expiry of the term of the tenancy passes, or any of sections 55AA, 56A(1), 58(1)(d), (da), 58A, 59, 59A, or 59B apply, and notice is given in accordance with the applicable section. A fixed-term tenancy may also be ended by mutual agreement of the parties.
Section 51(1)(a) of the RTA, 1 stated a landlord may give 63 days’ notice if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.
Section 51(2)(a) of the RTA, 2 stated a landlord may give 90 days’ notice if the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition.
Section 60AA of the RTA, states a landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.
Breaching s60AA is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00.
The tenant did not seek exemplary damages. The tenant’s claim was framed as seeking compensation for the financial impact of moving to a new home during the holiday period, and the inconvenience caused.
The tenant seeks compensation of $3,600, being the equivalent of 4 weeks’ rent. The tenant says the 4 weeks’ rent represents the period they should have been able to remain in the property had they been given 90 days’ notice instead of 63 days’ notice.

How was the tenancy terminated?

On a date between 6 and 9 September 2024, the owner arranged for real estate agent to conduct a valuation of the premises. The tenants say they asked the landlord if the owners were intending to sell, but the landlord said they were not. The owners own a property management company and the landlord says it was not unusual for them to assess the value of their rental properties in order to arrange financing for other projects. 1 As at 18 December 2024. 2 Ibid.
On 20 December 2024 the landlord called the tenant to advise them the owners had decided to terminate the tenancy and were giving the tenants 63 days’ notice. During the call, the landlord said the owner, or a member of their family, intended to live at the premises. After the phone call, the landlord sent an email giving the tenants notice that the tenancy would end at the end of the fixed- term, on 21 February 2025. The notice included an offer that the tenants’ may end the tenancy earlier than that date, by giving 28 days’ notice.
The landlord says, as at 20 December 2024, the landlord’s intention was for the owner, or a member of their family, to live in the premises after the tenants moved out. The landlord says the owner, or a member of the family, had recently gotten married and it was the intention that he and his wife would move into the premises.
On 29 December 2024, the tenants emailed the landlord giving the landlord 28 days’ notice that they wished to end the tenancy earlier, as had been offered by the landlord in the letter dated 20 December 2024.
The tenants moved out on 26 January 2025.
The landlord says, over the holiday period, the owners made new plans to enter into a joint venture. Following that decision, the owner no longer intended to move into the premises, and decided to sell the premises instead.
On 11 February 2025, the owners signed an agency agreement with a real estate agent.
On or about 20 February 2025, the tenant’s daughter returned to the premises to collect some mail and noticed a for sale sign at the property.
The tenant’s say the owner’s decision to enter into a joint venture could not have been made “overnight.” They say it is not feasible that the owner made that decision in January or February 2025, rather they submit the owner never intended to live at the property and always intended to sell it. They say that is evidenced by the owner obtaining a valuation in September 2024.
As a result, the tenants say they were put in a position where they were forced to look for alternative accommodation during the holiday period, and as a result moved to an inferior property. My analysis
The applicant is required to establish the claim to the civil law standard of proof, that is, on the balance of probabilities.
On the evidence provided, I am not satisfied that it is more likely than unlikely that the owner did not intend to live at the premises after the tenancy expired, or that the owner’s intention changed before 29 December 2024 when the tenant’s issued their own notice to end the tenancy.
While the evidence of a valuation being undertaken in September 2024 indicates the owner wanted to know the value of the premises at that time, that does not necessarily show the owner had formed the intention to sell the premises. I accept that that it is not unusual for a landlord to undertake valuations for financial reasons, particularly where the owner runs a property development company that may use the premises as security for other ventures.
The landlord says, at the time notice was given, the owner intended to live at the premises, and that plan only changed after the Christmas holiday period. The tenants have not produced evidence to show that that is unlikely to be true, therefore they have not established their claim to the civil standard of proof.
On that basis, I decline to award the tenant the general damages sought. I also note that, had the tenant pursued a claim for exemplary damages, I would have found the landlord did not commit an unlawful act on the basis I am satisfied the landlord’s intention was to move into the premises at the time the notice was given. It follows that I would have declined to award exemplary damages.
In any event, I note that, in the end, the tenancy was not terminated pursuant to the landlord’s notice issued on 20 December 2024. The tenancy was terminated pursuant to the tenant’s notice given on 29 December 2024, in which the tenant provided 28 days’ notice to end the tenancy on 26 January 2025. Upon the tenant issuing their own notice to terminate the tenancy, the landlord’s notice issued on 20 December 2024 became null and void.
For all of the above reasons, the tenant’s application is dismissed. Should the tenant’s name be suppressed?
The tenants sought suppression of their names. However, the tenants were not wholly or substantially successful in their claim.
I have considered if I should grant a name suppression order for the tenants having regard to the interests of the parties and public interest under Section 95A(4) of the RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the tenant’s name and identifying details outweigh the interest of the open justice reporting principle.
In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the tenant and the public interest, the public interest outweighs the tenant’s interests.
Accordingly, I decline to order suppression of the tenant’s name and identifying details.

Tenancy Tribunal case 5195159 — Exemplary damages at 21 Chester Avenue, Greenhithe, Auckland 0632

At a glance

Tenancy Tribunal case 5195159 — Exemplary damages at 21 Chester Avenue, Greenhithe, Auckland 0632

At a glance

Claims & awards

Order

Reasons

How was the tenancy terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

How was the tenancy terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions