What was the outcome of Tenancy Tribunal case 5296979?

The tribunal order states: The application for strike-out is declined.

How much money was awarded in case 5296979?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5296979?

The primary dispute was Rent arrears. Related themes: Harassment.

Where can I read the official tribunal order for case 5296979?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12204469-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5296979?

The tribunal order states: The application for strike-out is declined.

How much money was awarded in case 5296979?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5296979?

The primary dispute was Rent arrears. Related themes: Harassment.

Where can I read the official tribunal order for case 5296979?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12204469-Tribunal_Order.pdf.

98 Paritai Drive, Orakei, Auckland 1071 Tenancy Tribunal Case 5296979 — Rent arrears

Order

The application for strike-out is declined.
David Chan is granted possession of the premises at 98 Paritai Drive, Orakei, Auckland 1071 immediately.

Reasons

The Tribunal must consider an application filed by the owner of the premises, seeking a possession order against the occupiers on the basis that the occupants have no right of possession.
Both parties appeared at the video hearing on 5 August 2025, with the respondents being legally represented by Mr McNae.

BACKGROUND

There is an involved background in this case, but it can be summarised as follows:
The evidence is that there is a long relationship between Mr Chan (the applicant and owner) and Mr Ghee (the respondent and occupier). This is particularly around investing in properties and property development. My understanding Mr Chan would provide the funding, and Mr Ghee would then administer the development, presumably with both then sharing the profits arising.
For reasons that I need not set out in this decision, the business relationship between Mr Chan and Mr Ghee soured. It is plain that both parties consider they have been severely wronged by the other, and further that each has broken agreements around property developments.
Mr Chan owns the relevant property at 98 Paritai Drive, Orakei, in Auckland. In that regard I have been provided with a copy of the title, which records that Mr Chan is the sole owner. Mr Ghee considers that he is also an owner of the premises, but I will discuss that further below.
In any event, in 2020 Mr Chan agreed that Mr Ghee and his family could move into 98 Paritai Drive. As I will discuss more fully below, there was a ‘tenancy agreement’ drawn up, but in an earlier decision from the Tribunal, it was determined that there was no valid tenancy formed. Original Tribunal decision
That earlier Tribunal order arose from an application filed by Mr Chan seeking a termination of the tenancy, and return of possession on the basis that there was a tenancy, and the tenant was over a half million dollars in rent arrears. The application was made against ‘Aaron Ghee as Trustee of Williamson Family Trust’, that will be relevant later.
The Tribunal struck out the application, on the basis that there was in fact no tenancy in place, so there was no landlord / tenant relationship, and therefore no obligation to pay rent.
The Adjudicator noted the enmeshed relationship between the parties, and that the application she needed to consider, was a claim from Mr Chan that he was the landlord and the Williamson Family Trust the tenant.
The Adjudicator notes that Mr Chan’s position arose from a tenancy agreement between the parties which rented the premises for a weekly rental of just under $5,000 per week.
The Adjudicator determined that there was no landlord / tenant relationship present despite the parties concluding a standard residential tenancy agreement.
The adjudicator then set out a detailed reasoning for why she reached that conclusion, including that (in summary): a. The tenancy agreement was entered into only to facilitate mortgage borrowing. b. The intention of the parties was for the rent payments were to be recycled back into their business dealings.
The Adjudicator concluded that this was a sham tenancy.
Neither party appealed that decision. Current applications
Mr Chan then filed two applications with the Tribunal (the matters before me), both seeking that possession return to him. One application recorded Mr Ghee as the respondent, the second was simply an extension to include the rest of Mr Ghee’s family as respondents. While the original application could have been amended, the effect is the same, that in short Mr Chan is seeking an order that requires all occupants to vacate the premises and return him possession of the premises.

APPLICANTS CASE

Mr Chan seeks an order returning possession of the premises to himself.
Mr Chan’s position is that the title for the premises is under his name, and he pays all of the costs in relation to the property, and is therefore entitled to have possession of it. Mr Chan disputes that the respondents have any right to possess the premises.
Mr Chan summarised his business dealings with Mr Ghee, including that they had applied for mortgage finance in August 2020 which was rejected by ASB, and that Mr Ghee “orchestrated” a tenancy agreement with a property manager, then, with the ‘rental’ and reduced amount sought of the requested borrowing, lending was approved.
Mr Chan states that he allowed Mr Ghee to stay in the property as a friend, until another development was completed. Otherwise, Mr Chan states there is no agreement, verbal or written, that Mr Ghee owns 98 Paritai Drive.
In conclusion, Mr Chan states that there has been no joint venture with Mr Ghee that would allow him to possess these premises.

RESPONDANTS CASE

The respondents were legally represented by Mr McNae who filed comprehensive submissions and evidence in advance of the hearing.
Mr McNae submitted that Mr Chan and Mr Ghee have been in a partnership in relation to the development of properties, but there has been limited documentation around this, but it was otherwise for a common purpose they held. In short, the arrangement was for the development of properties, where Mr Chan would provide the funding, and Mr Ghee would undertake the development work.
Mr McNae states that in 2023 there were financial difficulties for both parties, and later there was a meeting with an accountant where there was no dispute that there was a partnership, but ultimately, Mr Chan acted in a way contrary to that partnership.
Mr McNae submits that the respondents oppose the application on the grounds that: a. The application should be struck out as an abuse of process under the principle of Henderson v Henderson. Otherwise, b. Mr Ghee is entitled to possession of the premises.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
Mr Chan seeks a possession order under section 65 of the RTA, which relates to the eviction of squatters, and holds the following: (1) Where, on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person, the Tribunal shall make a possession order granting possession of the premises to the applicant. (2) Nothing in subsection (1) shall limit or affect the provisions of the Trespass Act 1980, or any other remedy that may be available to the person lawfully entitled to possession of the premises. (3) To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.

ANALYSIS

There are two matters I must consider. Firstly I must consider whether the application must be struck out as an abuse of process, and if that application is unsuccessful, then the question is whether a possession order can be granted. Application to strike out Mr Chan’s application as an abuse of process
Mr McNae submits that the application should be struck out as an abuse of process given the principle of Henderson v Henderson. It was submitted that this application could have been advanced at the original hearing in the Tribunal. Furthermore, the parties are the same, and there is no change to the factual basis of the dispute.
This principle of Henderson v Henderson arises from a decision issued long ago, in 1843. That Judgment, Henderson v Henderson (1843) 2 HARE 100, states in part: In trying this question I believe I state the Rule of Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which ought to have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence of even accident omitted part of their case. The plea of res judicata applies, except in some cases, not only to the points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but their every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
In the much more recent High Court decision of Mah v Tey [2013] NZHC 573, the High Court confirmed that: It is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings.
And the Court of Appeal in Petersen v Lucas [2015] NZCA 627, the Court of Appeal confirmed an earlier decision that: A party cannot bring a case relating to a certain party, certain consequences of conduct, and a certain time frame and then when it fails bring another case raising similar complaint relating to the same party, the same sequence and the same timeframe. Parties must bring their whole case to the Court so there can be finality of litigation.
Mr McNae’s submissions around the general principles of Henderson v Henderson are correct. The principle brings finality to disputes by requiring that a party bring all claims at the first instance. But the principle is not an absolute prohibition on bringing claims at a later time involving the same or similar parties, or related facts.
At its most basic, to strike the claim out, I would need to be satisfied that the matters before me relate to the same parties, and same facts, and I find they do not.
The original claim was a claim made against Mr Ghee as a trustee. The claim was filed against “Aaron Ghee as Trustee of Williamson Family Trust”. The current claims are filed against different parties, that is Araon Ghee and the other occupants of the premises, but in their personal capacity (not as trustees).
Secondly, I find that the facts are not the same. As set out above, when the claim was initially filed and advanced in the Tribunal, it was on the basis that there was a tenancy between Mr Chan and Mr Ghee as a trustee of the trust. The Tribunal in effect declared that there was no tenancy, so this current application is on the basis that the occupants are not tenants, but occupiers, or to use the statutory term, squatters. As observed by Mr McNae in his written submissions, “indeed, Mr Chan’s new narrative is at odds with his claims in the previous proceeding”.
A defence to an argument that a claim should be struck out on the basis of Henderson v Henderson, is if there is new information, and I find there is. That is the decision of the Tribunal that there was no residential tenancy.
The respondent’s position is that if Mr Chan wanted to pursue the matter, it needed to be via an appeal in the District Court. I am not sure about that. The Tribunal did not consider an application for possession given the occupiers were squatters (an application under section 65), so it is difficult to see how an argument could be advanced on appeal for possession on that basis.
It would not be an abuse of process to allow the claim to be considered given the different fact situation. I observe that if Mr Chan believed that Mr Ghee was a lawful tenant, and had applied to terminate his tenancy on the basis that he was a squatter, then that would probably have been an abuse of process in itself.
Accordingly, the application to strike out the claim is declined. Application for possession order
Section 65 of the RTA relates to the eviction of squatters. A squatter is a non- tenant in possession of premises when they have no lawful right to be in possession. Again, section 65 holds:
Eviction of squatters (1) Where, on the application of any person entitled to possession of any residential premises, the Tribunal is satisfied that any other person is in possession of the premises as a squatter or trespasser, or otherwise than pursuant to any right of occupation granted to that person by any person having lawful authority to grant that right to that other person, the Tribunal shall make a possession order granting possession of the premises to the applicant. (2). ... (3). To avoid doubt, the Tribunal has jurisdiction under this section even though the premises are not subject to a tenancy agreement.
Section 65 was considered by the High Court in Sergeant v Nigro and Tapsell [2019] NZHC 328. The Court confirmed [at 74] that there are three conditions which have to be met before a possession order can be made: a. The premises which are the subject of the application must be residential premises; and b. The applicant for possession must be entitled to possession of those premises; and 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 the Applicant can prove (a) and (b) then the onus will move to the Respondent to prove on the balance of probabilities that they have a right of occupation granted by any person with lawful authority to grant it and that the right has not been terminated. I will now consider this application applying that three part test:

Are the premises residential premises?

Yes, there is no suggestion otherwise.

Is the Applicant entitled to possession of the premises?

Yes, Mr Chan is recorded on the title as the owner. As I will discuss below (and as I raised at the hearing), my impression is that Mr Ghee and his family were on the premises on the basis of a bare licence from Mr Chan. The Tribunal has already determined that there is no residential tenancy, and other than the occupiers’ argument of a constructive trust (which I will discuss below), no other grounds have been identified which would argue against Mr Chan having a right to possess the premises.
In Paraire v Paraire — Part Mangatawa 10 Block (2015) 105 Waikato Maniapoto MB 67 (105 WMN 67) Judge Clark discussed the revocation of a bare licence as follows: A bare licence is revocable at will. The decision to revoke a bare licence must be communicated to the licensee for effective revocation. This may be by express or implicit notice, or by the licensor doing some act inconsistent with the continuance of the licence, or by threatening proceedings for trespass.
Plainly in this case Mr Chan has revoked the bare licence. I find that Mr Chan has established a right to possession of the premises.

Do the Respondents otherwise have a right to possess the premise?

It is now for the occupants to establish that they have a right to possess the premises sufficient to displace the owner’s right.
The Respondents have not identified any right to possess the premises other than there being a claimed constructive trust, so the question is whether that would be sufficient to decline to grant possession to the applicant (the owner).
A constructive trust, is a trust which arises by operation of law, and is a claim which arises in equity.
In Butler Equity and Trusts in New Zealand (2003) at 282, the authors introduce their discussion of the doctrine of the constructive trust as follows: A constructive trust arises by operation of law and not by the express or implied intention of the parties. In Carl Zeiss Stiftung v Herbert Smith & Co (No 2) Edmund Davies LJ said that the law provides no clear and all-embracing definition of a constructive trust: ‘Its boundaries have been left perhaps deliberately vague, so as not to restrict the Court by technicalities in deciding what the justice of a particular case may demand’...
In the Court of Appeal decision of Gillies v Keogh [1989] 2NZLR 327, Cooke P noted: It is however important that whatever the legal rubric there should be clear criteria for the imposition of constructive trusts in the area of de facto relationships. These will necessarily involve a value judgment, but there is nothing unusual about that. The essential requirements I see to be twofold: that the plaintiff contributed in more than a minor way to the acquisition, preservation or enhancement of the defendant's assets, whether directly or indirectly; and that in all the circumstances the parties must be taken reasonably to have expected that the plaintiff would share in them as a result. Both statements need some amplification. In the first place, by contributions to assets one is not referring to those contributions to a common household that are adequately compensated by the benefits the relationship itself confers. The contribution must manifestly exceed the benefits. Putting it in conventional estoppel terms, the plaintiff's contributions must have been to his or her detriment; ... The contributions may then be recognised by the imposition of a trust over a particular asset or particular assets, which may in turn be quantified or satisfied by a monetary award.
However, the primary problem for the Respondents, is that the Tenancy Tribunal does not have jurisdiction to determine equitable claims, that would be a matter for the High Court to determine.
I note the High Court decision of Willigers v Churchill Fishing International Limited [2020] NZHC 2212. It was a case where the occupier, like in the case before myself, argued that a possession order could not be granted, because they had an equitable interest in the premises, in that case a resulting trust. That was not accepted by the Court, which held: Second, the reason why the Tribunal and the District Court are wrong has not been persuasively set out to this Court. Ms Haszard argued that the Tribunal was wrong not to consider the evidence that Mr Willigers had an interest by way of resulting trust in the property. But even if this is established I am unclear why that would give rise to right of possession to the property, certainly possession in the nature of a tenancy. Any claim to an equitable interest will need to be established in the High Court first before the question of equitable remedy is addressed, and I note that only a percentage interest is sought by Mr Willigers. Effective relief could still be granted even if the present claims in relation to possession fail. It is also relevant that a caveat is presently in place and this exists to protect Mr Willigers’ claims to an equitable interest. [Adjudicator’s emphasis]
I again note the High Court decision in Sergeant v Nigro. In that case, the Tribunal had in effect considered whether the occupier had a right to possess the premises, based on an equitable claim then before the High Court. The District Court and High Court were critical of the Tribunal’s approach in considering the merits of the claim in equity.
I note here that Mr Ghee has confirmed in his affidavit that he currently has a claim before the High Court, therefore there are strong similarities between this case and Sergeant v Nigro.
The High Court (in Sergeant) went on to consider whether section 85 of the RTA (which looks to the Tribunal reaching fair outcomes based on the substantial merits and justice of the case) could have been applied to consider the equitable claim, but that was not accepted. The Court confirmed: [93] ...Section 85, when interpreted in that way, does not provide the opportunity to infuse considerations from the High Court claim into the Tribunal’s factual determinations under s 65. [94] It is not open to the Tribunal to consider the fact of a claim or the contents of the claim in another court when deciding if the trustees were entitled to possession and/or if Mr Sergeant was in possession as a squatter or trespasser or otherwise than pursuant to any right of occupation granted to him. The Judge was correct to hold that the Tribunal had erred in its approach in this regard.
I note also the High Court decision of Davis v Gwilliam [2002] NZHC 2228, in which the High Court supported a decision of the Tribunal, which granted possession of the premises to an estate, when the occupier was the beneficiary of the estate. Cooke J confirmed that: The first point is that the plaintiff and her daughter have no right of occupation of the property in question. They are only beneficiaries of the estate. There is no right to the property itself.
Accordingly, just having some associated rights around the premises, does not translate into a right of occupation.
For those reasons, the Tribunal cannot find that there is an equitable right of occupation for the respondents, which means that they have not established a right of possession. Vexatious claim
The respondents submit that Mr Chan’s claim is vexatious. I find it was not, the claim was valid and reasonably brought, as demonstrated in the fact of the applications success.

CONCLUSION

The application for strike out is declined.
Mr Chan’s application for a possession order is granted.

Tenancy Tribunal case 5296979 — Rent arrears at 98 Paritai Drive, Orakei, Auckland 1071

At a glance

Tenancy Tribunal case 5296979 — Rent arrears at 98 Paritai Drive, Orakei, Auckland 1071

At a glance

Claims & awards

Order

Reasons

BACKGROUND

APPLICANTS CASE

RESPONDANTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Are the premises residential premises?

Is the Applicant entitled to possession of the premises?

Do the Respondents otherwise have a right to possess the premise?

CONCLUSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

APPLICANTS CASE

RESPONDANTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Are the premises residential premises?

Is the Applicant entitled to possession of the premises?

Do the Respondents otherwise have a right to possess the premise?

CONCLUSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions