Tenantcheck Insights · Case study
Tenancy Tribunal case 5448408 — Tenancy dispute at 37B Merrick Road, Pyes Pa, RD 3, Tauranga 3173, Bottom
Published 16 April 2026 · Application 5448408
Landlord favoured
At a glance
Key facts from the published tribunal order.
Outcome
Landlord favoured
From published order
Location
Tauranga
Tribunal region
Adjudicator
M Steens
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.
Order
- No order for suppression is made.
- The Bond Centre is to pay the bond as follows: Tenant: $0.00 Landlord: $1,980.00
- The term of the fixed-term tenancy of Stella Jade Callagher and Mark Manuariki Harris at 37B Merrick Road, Pyes Pa, RD 3, Tauranga 3173, Bottom Flat, is reduced and ended on 24 December 2025.
- The landlord’s claim for reimbursement of the filing fee is dismissed.
Reasons
- Both parties attended the hearing.
- The dispute concerned a fixed-term tenancy which began in September 2025 and was due to end in September 2026, but which came to an end in December 2025. The landlord sought the bond and filing fee; the tenants sought release from liability under the fixed-term tenancy and return of the bond.
- The Tribunal may reduce a fixed-term tenancy where there has been an unforeseen change in the applicant’s circumstances, the applicant would suffer severe hardship if the term were not reduced, and that hardship would be greater than the hardship to the other party if the term were reduced.
- If the term is reduced, the Tribunal may order reasonable compensation for resulting loss.
- Section 85 of the Residential Tenancies Act 1986 also requires the Tribunal to determine the dispute according to the substantial merits and justice of the case.
- In Platinum Rentals v Madden, 1 the District Court accepted that hardship and termination issues must be assessed by reference to the actual facts, including continued occupation, payment of rent, and when the tenant in truth acted on the hardship. 2
- I find there was an unforeseen change in the tenants’ circumstances in this sense. Not merely that there were occupants upstairs, which was obvious from the outset, but that the level, frequency and nature of the noise was materially different from what they reasonably expected. The tenants said they could hear conversations, television, and bodily noises at night (“farting” and “talking”), that this affected their sleep, and that they were not prepared to live like that in their own home. The landlord broadly accepted there was a sound issue. He and his partner had been to the home and tested it, and accepted some noise could be heard from upstairs.
- I do not, however, treat this as a separate proven breach of quiet enjoyment under s 38 warranting termination on that basis alone. Lucas v Patterson shows why care is needed. 3 Joyce QC accepted that noise can be relevant under s 38(2), but held that not every interference crosses the threshold, and that “Proportionality must not be forgotten”. 4 He concluded at paragraph 41, that the evidence there – noise and privacy concerns relating to renovations at the premises in question – did not justify a finding of breach of s 38 or termination on that footing. 5 The same caution should be applied here. The noise evidence is real and important, but it is better treated as informing hardship under s 66 than as founding a separate quiet-enjoyment remedy.
- I find the tenants would have suffered severe hardship if held to the full fixed term. Their evidence was consistent that the problem was persistent, affected sleep, and caused real discomfort and loss of privacy. They were entitled to say they should not have to wear earplugs or headphones every night in order to occupy the premises. I accept that the noise was the principal reason for leaving.
- I also find the landlord would suffer hardship if the term were reduced. The tenants did not raise the issue until 2 December 2025, at a poor time of year for 1 Platinum Rentals v Madden [2013] DCR 125. 2 Ibid. at [64] 3 Lucas v Patterson [2005] DCR 76. 4 Ibid. at [36]. 5 Ibid at [41]. reletting, despite living at the premises since September 2025. They accepted in hindsight that earlier notice would have been better.
- Although they sourced a proposed replacement tenant, she withdrew on 19 December 2025. After that, the tenants did nothing further to assist. On the other hand, the landlord also accepted he could have done more sooner, and that he had wrongly assumed the tenants would continue the whole replacement process themselves. Both parties therefore fell short to some degree in mitigation.
- Balancing those matters, I find the tenants’ hardship was greater than the landlord’s hardship, so the fixed term should be reduced. But the reduction should not be backdated to an artificially early date. Platinum Rentals v Madden is helpful here. 6 The Court emphasised that the tenant’s own actions help identify when hardship truly crystallised, and that an adjudicator errs by fixing a termination date without proper regard to continued occupation, continued payment, and the timing of complaint. 7
- Here, the tenants remained until December, paid rent through 21 December 2025, and effectively treated 24 December 2025 as the exit point. That is the proper date to which the term should be reduced.
- Where the term is reduced, the Tribunal may award the landlord reasonable compensation for resulting loss under s 66(2). It should be noted that this is not prohibited by s 32, which is directed to contractual provisions requiring accelerated rent, increased rent, or a fixed penalty on breach, not to compensation awarded by the Tribunal under the Act itself.
- Importantly, s 49 does not assist unless there has been a breach. In Keenan v Ohlson, Judge Walker held that where a tenant was simply seeking release from a fixed term and the parties were negotiating an early exit, “there was no breach by the tenant,” and s 49 would only have applied had the landlord refused release and the tenant then “unilaterally cancelled the tenancy and vacated”. 8
- Here, there was no such unilateral breach. Rather, there was a mutual arrangement that the tenants could be released if they found a replacement tenant. The correct approach is therefore to assess reasonable compensation under s 66(2), in light of the substantial merits and justice of the case under s 85, by reference to the landlord’s actual loss flowing from the December 2025 exit, including a realistic vacancy period, but without allowing a windfall recovery.
- I assess reasonable compensation at four weeks’ rent, namely $1,980.00. 6 Platinum Rentals v Madden [2013] DCR 125. 7 Ibid. at [62] and [65]. 8 Keenan v Ohlson (2001) TT 328/00, Judge Walker.
- That figure fairly recognises: a. the tenants’ genuine and consistent evidence that the noise was real and materially affected their occupation; b. the fact that the tenants delayed too long before raising the issue; c. the unfortunate Christmas timing, which materially increased the reletting difficulty; d. the fact that the tenants ceased assisting once the proposed tenant withdrew; e. the landlord’s acceptance that he too could have done more sooner; f. the fact the Landlord did interview the proposed tenant and paid for the vetting procedure; and g. the fact that the landlord limited his claim to the bond rather than seeking the whole period of vacancy.
- On the material before the Tribunal, four weeks is a fair reflection of the substantial merits and justice of the case: s 85 of the Act
- I would dismiss the separate claim for the filing fee. In my view the outcome is mixed. The tenants succeed in having the fixed term reduced. The landlord succeeds only to the extent of reasonable compensation from the bond.
- I decline to grant name suppression.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s1, s16, s32, s38, s38(2), s49, s66, s66(2), s85
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5448408?
The tribunal order states: No order for suppression is made.
How much money was awarded in case 5448408?
Verified claim lines are listed on this page.
What type of tenancy dispute was case 5448408?
The dispute type was not classified.
Where can I read the official tribunal order for case 5448408?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13456050-Tenancy_Tribunal_Order.pdf.