What was the outcome of Tenancy Tribunal case 5343886?

The tribunal order states: By way of declaration, this Tribunal has the jurisdiction to hear this application.

How much money was awarded in case 5343886?

Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5343886?

The dispute type was not classified.

Where can I read the official tribunal order for case 5343886?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13524367-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5343886?

The tribunal order states: By way of declaration, this Tribunal has the jurisdiction to hear this application.

How much money was awarded in case 5343886?

Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5343886?

The dispute type was not classified.

Where can I read the official tribunal order for case 5343886?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13524367-Tribunal_Order.pdf.

7 Tainui Street, Stoke, Nelson 7011 Tenancy Tribunal Case 5343886 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 5343886 — net $1,678.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$28.00	Filing fee reimbursement
Bond (with landlord	$1,650.00	Bond (with landlord
Net award	$1,678.00
Total payable by Landlord to Tenant	$1,678.00

The tenant attended the hearing, set down to be conducted via video conference. There was no entry into the conference by the landlord, nor any call in to the conference by one of the telephone numbers provided on the Notice of Hearing. I was satisfied adequate service had completed and I continued with the hearing.

The landlord advised Tenancy Services prior that she would not be attending. She claimed a separate tenancy agreement existed and this Tribunal was not the correct jurisdiction. No such tenancy agreement was provided. There is a recorded current bond at this address but it is not in the name of either the landlord or tenant here. The landlord of record in the Bond Centre record was active during this tenancy, interacting at times with the tenant.

The tenant has applied for refund of the bond. The landlord has not filed a counterclaim with Tenancy Services.

The preliminary matter to decide was jurisdiction. Jurisdiction

The tenancy formed via a signed House sharing agreement and commenced 18 February 2025. This agreement stated that the Residential Tenancies Act 1986 did not apply. It also provided that any dispute should be determined by the Disputes Tribunal.

The head tenant in that agreement were the named landlord to this application.

The tenant stated she was told this form of agreement was used to avoid any compliance issue under the Residential Tenancies Act 1986.

The tenant and her husband, along with their six children moved into the main house. They moved in their own appliances.

A bond of $1,650.00 was paid over two payments. Evidence of this was provided.

I heard the landlord lived in a separate dwelling on the same property, with a separate entrance. Utilities bills were divided between the two dwellings but other than that there was little or no movement or shared activities between the two dwellings by the respective occupants.

The Tribunal’s general jurisdiction, under s77(1) of the RTA is to: “...determine in accordance with this Act any dispute that— (a)exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b)relates to any tenancy to which this Act applies or to which this Act did apply at any material time.”

Section 2 RTA provides that a “landlord” and “tenant” are respectively grantor and grantee of a tenancy. “...tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment...” rent, means any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the tenant; but does not include any sum of money payable or paid by way of bond”

Factors that point to this being a tenancy are; a. The respective parties had exclusive possession of their defined area. b. The only shared area was the laundry which under s.2 RTA is a” facility” and therefore does not fall within the definition of “premises” in the RTA. The washing machine was provided by the tenant. c. Ms Noteboom paid “rent” to Ms Pont-Briggs. d. The “bond” was paid to and is held by Ms Pont-Briggs.

Section 10 of the RTA states that where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply. In this case, it is on the landlord to establish why this jurisdiction is not correct.

In Bailes v Nalini (2020) NZTT 4261603, 4268721, North Shore, the Tribunal held in similar circumstances in considering the issue of jurisdiction where there was a “flatmate agreement”, that; “The fact that the parties have entered into a “flatmate” agreement which records that the RTA does not apply, is of no effect. That is because section 11 of the RTA confirms that the parties cannot contract out of the RTA, to the tenant’s detriment. That provision holds:

A ‘flatmate’ resides in the premises by way of a licence from the owner of the premises In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006, Judge Broadmore considered the definition of a flatmate. He states (at para [22]: “By ‘flatmates’ I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”

As discussed at the hearing, having considered this situation I am not satisfied the landlord has proven this arrangement falls within any exception detailed in s 5 of the RTA.

In Harding v Caroto and Others, [2021] NZHC 1265 Walker J found that the Tribunal’s jurisdiction should be construed generously: [37] [T]the purpose and policy of the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions. There are many provisions which support that view. One illustrative indicator is s 10 which stipulates that the onus of establishing the facts on which it is contended that the Act does not apply lies on the party trying to exclude the Act. The s 11 restrictions on contracting out of the Act are another.

Further, in Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the Residential Tenancies Act 1986 is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act, and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.

The tenant seeks only the return of her bond. The implication of declaring this jurisdiction is that it could expose the landlord to further tenant claims. The tenant stated that is not intended, she just wants her bond back.

No grounds to determine this jurisdiction does not apply have been provided by the landlord.

This Tribunal has the jurisdiction to consider the application. Bond

Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant. Filing fee

Because Odrianna Joan Noteboom has wholly succeeded with the claim I must reimburse the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 5343886 — net $1,678.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$28.00	Filing fee reimbursement
Bond (with landlord	$1,650.00	Bond (with landlord
Net award	$1,678.00
Total payable by Landlord to Tenant	$1,678.00