Published tribunal order
Tenancy Tribunal case 5259263 — 14-day notice at Unit/Flat Unit 417, 139B Greys Avenue, Auckland Central,
Decided 5 Jun 2025 · Published 5 Jun 2025 · Application 5259263
Mixed / unclear
- 14-day notice
- Harassment
Order
- The tenancy at Unit/Flat Unit 417, 139B Greys Avenue, Auckland Central is terminated immediately and possession is granted to Kainga Ora Homes and Communities.
- Tamarau Sabian Stevens must pay Kainga Ora Homes and Communities the sum of $27.00 immediately.
- The names of the landlord’s staff members who work at the tenancy address are suppressed.
Reasons
- The landlord, represented by Mr Temu, attended the hearing, which was conducted remotely. Two attempts to reach the tenant by phone were unsuccessful.
- The tenant is currently remanded in custody. The file shows that on 22 May 2025, the notice of hearing was posted to him at the prison, as notified by the landlord. The tenant made no effort to attend the hearing by video or phone.
- I am satisfied that the tenant received notice of the hearing.
- The landlord has applied for termination of the tenancy based on two grounds: a. Section 55(1)(c), assaulting or threatening to assault an agent of the landlord; b. Section 56, breaching the tenant’s obligation under section 40(2)(c) not to interfere with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants. Evidence
- The onus of proof is on the landlord to establish the facts to support the application. The standard of proof is on the balance of probabilities. The Tribunal must be satisfied that an alleged fact is more likely than not to be true.
- This type of case would not usually be conducted by phone, but the landlord requested the matter to be treated with some urgency.
- The landlord had filed two witness statements as well as video clips of CCTV footage and had set out a summary of events. Phone numbers for the witnesses were also provided. Because the evidence was clear and uncontested, no phone calls to the witnesses were required.
- The names of the two staff member witnesses have been redacted from this decision because there is no public interest in their names being known and because of risks to their personal safety for the reasons outlined in the evidence below.
- The tenancy address is part of a complex which has over 200 individual apartments as well as some communal areas for the tenants and their visitors. These include a communal kitchen, lounge, laundry and computer room. There is a reception area, and the facility is staffed 24 hours a day. Assault 1: 5 May 2025
- The events that led to the application for termination began on 5 May 2025 when the tenant was in the computer room with a visitor to the facility. Mr Temu explained that the visitor is known to the staff and is a friend of one of the tenants.
- The CCTV footage shows the tenant and the visitor both seated at computer terminals. The tenant then gets up and approaches the visitor who remains seated. There is no audio to the footage. The tenant is speaking to the visitor and appears agitated. The visitor remains seated, looking at the computer screen. The tenant then punches the visitor in the face, and swings at him a few times as the visitor slowly falls off his chair, with his hands over his face.
- The tenant returns to his computer monitor, and while standing, uses the mouse. The tenant goes back to the visitor who remains on the floor and the tenant kicks him once. He walks back to his chair and then returns and stomps on the visitor twice. The tenant then leaves the view of the camera.
- The visitor remains on the floor for about 10 seconds before getting up and back on to his seat. About 40 seconds later, the tenant returns, accosts the visitor and then punches him in the face. Again, he swings at the visitor while he is falling to floor.
- Mr Temu advised that this all occurred at about 9.45am. Following this, staff heard the visitor calling out. The Police were called, and the tenant was arrested. Assault 2: 5 May 2025
- At approximately 3.24pm that same day, staff heard a resident yell “stop” in one of the building corridors. Staff checked live camera feeds and saw the tenant advancing towards the male partner of another resident. Staff intervened and verbally de-escalated the situation.
- The camera footage shows the tenant in the computer room. Two other people are seated at computers. The tenant stands up and approaches the door as another man enters the room. The tenant kicks the other man in the stomach. The other man leaves.
- Ms B provided a signed statement dated 6 May 2025. She was on shift on the afternoon and evening of 5 May. She said that she heard commotion in the Waiora ground floor corridor and stood up to look at what was happening, while Ms A checked CCTV and confirmed there was an incident involving the tenant. Ms B and another staff member approached the group on the computer room. The tenant returned. Ms B asked him to come with them, to try to remove him from the area. About half an hour later the tenant apologised to the visitor and they hugged each other. Threat to kill: 5 May 2025
- Later that evening on 5 May there was a further incident.
- At approximately 9:30pm, two staff, Ms A and Ms B, noticed the tenant lying on the floor of the computer room vaping and a short time later, approached him to do a welfare check to see how he was. Staff engaged with him, initially without any issues. Ms A knelt beside the tenant while Ms B stood. The conversation was calm and respectful. Ms A asked if he would like to speak to a support worker, but he politely declined, saying that he did not want to be a bother.
- Ms A asked the tenant to get up off the floor and he said he would, after they left. She also asked him to use the headphones provided when listening to music. He remained calm. When Ms A asked the tenant not to vape in the computer room, his voice lowered, which meant she could not hear him. She leaned in a bit closer and asked him to repeat himself.
- Ms A says that the tenant then said, “I’m not afraid to kill you, I’m not afraid to kill anyone”. At this stage she leaned back and replied, “There is no need for aggression”.
- Ms A says that at this point, the tenant’s behaviour changed quite rapidly, snapping up to standing, while she did the same. Ms B responded to this quick movement by physically intervening in the space between them. He repeated “I’m not afraid to fucking kill you” at Ms A, while snapping his head towards her in a threatening manner.
- Because of the tenant’s earlier violent incidents and close proximity and his intimidating posture, gestures and language, Ms A no longer felt safe and started to slowly retreat, backing away. She says that Ms B used verbal de-escalation, to ensure he didn’t follow Ms A, as well as telling Ms A to leave. She retreated to reception.
- Ms B’s description was that after Ms A asked the tenant not to vape, his demeanour quickly changed. While he was on the floor he said, “I’m not afraid to kill anybody and not afraid to kill you.” This was directed at Ms A.
- Ms B says that the tenant quickly got up off the floor and became aggressive towards Ms A. He positioned himself in a fighting stance and tried to advance towards Ms A. Ms B stood in between them to maintain distance between them. She placed her hand on the tenant’s chest to stop him moving towards Ms A.
- Ms B heard the tenant say to Ms A, “I’m not afraid to fucking kill you”. Ms B said to him, “It is not worth it and we’re leaving.” She told Ms A to leave, while she kept her hands out to keep space. The tenant said, “She’s being fucking annoying, fucking leave,” while he was pointing towards the exit.
- The two staff walked backwards towards the exit of the computer room and retreated to reception. The Police were called and Ms B accompanied them to the tenant’s apartment, where he was arrested. During the arrest, the tenant said, “I said I will kill anyone not her.”
- The CCTV footage of the incident shows Ms A and the tenant get up from the floor. While Ms B is between Ms A and the tenant, he makes a sudden movement, raising his arms from his sides abruptly and briefly in a jerk-like motion, while at the same time moving his feet suddenly. He then raises one arm and points. Assault 3: 12 May 2025
- Mr Temu described a third physical assault on 12 May 2025 at approximately 9:26pm. A distressed female resident ran towards the front desk screaming towards staff, “Are you watching the cameras!” Before staff could ask any questions, the tenant came running into the main lobby, followed by another male resident holding a chair. Staff immediately tried to de-escalate the situation and opened the front entrance door to separate the two residents. The tenant ran out the door while staff tried to calm the other resident. The distressed female resident informed staff that the tenant had just beaten someone up on the communal lounge. Police were contacted.
- The CCTV footage shows the tenant entering the communal lounge where someone is sleeping on the couch. The tenant then punches their head or face approximately 9 times before stomping on their head. An item falls from his pocket. Mr Temu explained that was a pocketknife. Two other people then enter the room while the tenant walks away. The female checks on the victim, while the male approaches the tenant.
- The landlord also produced footage of the female at the front desk when the tenant comes running through reception followed by the male, holding a chair, The tenant retreats out the door.
- Mr Temu said that the Police arrived at approximately 9:37pm and the assault victim was taken to hospital. The tenant was not on the premises at that time and was arrested the next morning. Submissions
- Mr Temu noted that under section 55(2) of the Act, the Tribunal may refuse to make an order under subsection (1), if, but only if, it is satisfied that: a. The breach has been remedied (where capable of remedy). b. The landlord has been compensated for any loss arising from the breach; and c. It is unlikely that the tenant will commit any further breach of a kind to which section 55 applies.
- Mr Temu submitted that the tenant’s behaviour toward the Kāinga Ora staff member is not capable of being remedied. He has not compensated Kāinga Ora for the breach (and the breach is not capable of being compensated). The Tribunal cannot be satisfied that it is unlikely that the tenant will not commit a further breach given: a. In the short period since commencing his tenancy at the property, as detailed above, the tenant has displayed aggressive, threatening and intimidating behaviour towards staff. b. The tenant has also been involved in other serious incidents with other residents and their visitors at 139 Greys Ave, impacting on their right to peace and quiet enjoyment. c. The tenant is often the active aggressor whose behaviour is escalating and putting other residents, staff and the wider community at risk.
- It was submitted that for these reasons this is not a situation where the Tribunal should exercise its discretion under section 55(2) and refuse to make an order terminating the tenancy.
- As for the application under section 56, Mr Temu said that incidents described have demonstrated interference with the reasonable peace, comfort and privacy of other residents and their visitors. The tenant has breached his tenancy agreement and the RTA by behaving in a way that impacts negatively on his neighbour and the community. He submitted that given the seriousness of the incidents, these breaches cannot be remedied or compensated for. It would be inequitable for the Tribunal to refuse to terminate the tenancy.
- As well as the assaults and threat of assaults on 5 May 2025 and 12 May 2025, there have been other recorded instances where the tenant has interfered with the reasonable peace, comfort and privacy of neighbours.
- Mr Temu produced a copy of a section 55A notice dated 5 January 2025 which records an incident on that date at approximately 10:55am, when the tenant was involved in a verbal altercation with another resident. The incident occurred in the reception area. Staff had to intervene to stop him from getting into a physical altercation with the other resident.
- Mr Temu also said that on 27 April 2025 at around 4:17pm, the tenant was observed on CCTV footage punching a computer screen in the computer room and as a result, it was broken. A section 40(2)(c) notice was issued to the tenant for that incident.
Should the tenancy be terminated?
- Section 55 provides: (1) Subject to subsection (2), on any application made to it under this section by the landlord, the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that— ... (c) the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, any of the following persons: ... (iii) any agent of the landlord: (2) The Tribunal may refuse to make an order under subsection (1) if, but only if, it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies (but see also section 78A(3)(b)).
- “Assault” is defined in section 2 of the Crimes Act 1961 as the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose.
- In the present case, the tenant did not physically assault Ms A. The evidence is that he said that he was not afraid to kill her. This may well be construed as a threat to kill, rather than a threat to assault. It is possible that killing someone does not include an assault.
- I find that a threat to kill, accompanied by an aggressive stance may well constitute an assault. The tenant had already assaulted two people that day. There were good grounds for the two staff members to believe that he was threatening to assault Ms A. On that basis, the tenant’s actions constituted an assault.
- If that interpretation of the criminal law is incorrect, I note that section 85 of the Act provides: (1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
- I find it unlikely that Parliament intended that a tenancy could be terminated for an assault on the landlord (or agent), but not a threat to kill. The substantial merits of the case, in the circumstances outlined (where that day the tenant had assaulted two other people, including kicking a victim on the floor) warrant a termination under section 55(1)(c).
- I also find that the breach is not capable of remedy, and given the two assaults earlier that day, the violent attack on 12 May and the previous matters involving aggressive behaviour (on 5 January and 27 April), I am not satisfied that it is unlikely that there will be a further breach.
- In any event, the landlord has provided grounds for termination under section 56 which provides that the Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
- Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
- The tenant has breached his obligations by exhibiting violent and frightening behaviour towards three visitors to the facility in the common areas of the computer room and the lounge. I accept the landlord’s submission that this is a breach of other tenants’ right to peaceful and quiet enjoyment of the premises. They should be able to enter and enjoy the common areas without witnessing assaults or threatening behaviour and without fear of being the next victim.
- These are not minor breaches. The tenant has exhibited frightening behaviour on at least four occasions between 5 and 12 May (including threatening to kill a staff member). There were two previous incidents in January and April. This is behaviour which the other tenants, staff, and visitors to the facility should not have to tolerate.
- It would be inequitable to refuse to terminate.
- Because Kāinga Ora–Homes And Communities has wholly succeeded with the claim I must reimburse the filing fee.