Tenancy Terminated for Assaulting a Neighbour

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[2025] NZTT 5153093

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Unit/Flat [ADDRESS], [POSTCODE], Crescent Flats

ORDER

1. The tenancy of [NAME] at Unit/Flat [ADDRESS], [POSTCODE], Crescent Flats is terminated, and possession is granted to [COMPANY], at 11.59pm on Monday, 03 March 2025.

Reasons: 1. The hearing was conducted remotely by telephone. A representative of Kainga

Ora-[NAME] attended the hearing. The Tribunal called the tenant on the telephone number provided. The call was answered by the tenant’s [NAME]. The [NAME] advised that she did not have authority to represent the tenant at the hearing and that the tenant did not have a telephone number.

2. I am satisfied that the tenant was served with notice of the hearing. The notice specifically states that the Tribunal would contact the tenant on the number provided in the application and, if that number was incorrect, the tenant should advise the Tribunal of the correct number. The Tenant has not contacted the Tribunal to advise that he could not be reached at the number in the application or why he would not attend the hearing. The hearing proceeded in the tenant’s absence.

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3. The landlord says that the tenant has assaulted a [NAME] and has applied for termination of the tenancy under section 55(1)(c)(v) of the Residential Tenancies Act 1986 (RTA).

4. In the alternative, the landlord has applied for termination of the tenancy under section 56 of the RTA on the grounds that the tenant has breached a term of the tenancy agreement or his obligations under the RTA and the breach is not capable of remedy.

Burden of proof: 5. As the applicant, the landlord must prove their claim to the civil law standard of

proof, on the balance of probabilities. Where an allegation is particularly serious, and in particular involving criminal offending as is the case here, the Tribunal requires evidence of a sufficiently high standard to meet the burden.

Landlord’s submissions: 6. The landlord had provided a submission, and this was supported by a written

statement from [NAME] and a witness of part of the [NAME]. Both witnesses attended the hearing and confirmed their written statements. The landlord has also provided a written response regarding the [NAME] incident from the Police to a Request for Information.

7. Since 05 July 2024, the tenant has occupied one of the landlord’s units in a complex of 22 pensioner units, which are spread across 3 buildings. Both witnesses reside in the building which includes the premises. [NAME] resides in the unit next to the premises.

8. It is [NAME] that:

a. On 13 January 2025 at approximately 12.20pm, [NAME], who is 71 years of age, said he could hear the tenant yelling obscenities from an area outside the premises. The tenant said that this had continued for 10 minutes when he became ‘fed up’ with the tenant’s behaviour and went outside to confront him. [NAME] said he grabbed the tenant who yelled at him to “get your hands off me”. [NAME] said he was not sure what happened next as he has hight blood pressure and he felt himself getting weak. [NAME] said that the next thing he remembered was that he was lying at the top of the steps when the tenant kicked him in ribs. [NAME] said that he then fell down the stairs.

b. [NAME] said that she was in her unit and could hear the tenant shouting. She said she tried to ignore it but it started to sound like an argument, so she went to see what was happening. This witness said she saw [NAME] falling down the stairs and that she saw the tenant kick [NAME] at the bottom of the stairs.

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c. [NAME] said that he was then taken to hospital where he stayed for 3 days being treated for his injuries, including a broken rib.

9. There is a discrepancy between the witnesses’ evidence as the tenant says he was kicked at the top of the stairs and the witness says it occurred at the bottom. The landlord says that this could be because [NAME] may have struggled to recall the exact details as he had just suffered an [NAME] and had become weak due to high blood pressure.

10. The records provided by the Police confirm that the Police did attend an incident at the premises on 13 January 2025 regarding a complaint of common [NAME]. The Police also state in the records that the [NAME] resides at the premises, that he has not yet been located and [NAME] charges are to follow.

Termination -The law: 11. The landlord seeks termination under section 55(1)(c)(v) of the RTA. This section

provides for the termination of tenancies for [NAME]. It reads:

(1) Subject to subsection (2) of this act, 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 caused, or has threatened to [NAME], or has caused or permitted any person to [NAME], or to threaten to [NAME], any of the following persons:…

(v) [NAME] of the premises or of any building of which the premises constitutes part.…

(2) The Tribunal may refuse to make an order under subsection (1) of this section if, but only if, it s 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))].

12. [NAME] is defined in section 2(1) of the Crimes Act 1961 as:

[T]he 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 [NAME] to believe on reasonable grounds that he has the present ability to effect his purpose.

13. In the case of [NAME] v [NAME], High Court Christchurch, CIV- 2004– 409 – 717, 2 July 2004, his Honour Judge Keane accepted that an [NAME], or threat of [NAME], once made could not be remedied. His Honour however, formed the view that the discretion under section 55(2) of the RTA remained, regardless of whether the breach was capable of remedy or not. The High Court held that if the breach could not be remedied, then the issue could be set aside and the Tribunal go on to consider the two remaining factors under section 55(2),

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namely whether the landlord had been compensated for any loss arising from the breach and whether it was unlikely that the tenant would commit any further breach.

Analysis: 14. Based on the evidence presented by the landlord, I am satisfied on the balance

of probabilities that the tenant assaulted a [NAME] of the tenancy address by kicking him in the ribs. A [NAME] is regarded as someone who resides next door or in close proximity. I regard [NAME] of this [NAME], living in the unit next to the premises, as a [NAME] of the tenancy address.

15. The landlord has proven to the required standard that the tenant assaulted a [NAME].

16. The next issue I must determine is whether this is an appropriate case to exercise my jurisdiction not to terminate the tenancy under section 55(2) of the RTA. The breach is not capable of remedy and the landlord is not able to be financially compensated.

17. Therefore, the only remaining factor I must consider is whether it is unlikely that the tenant will commit any further breach of the same kind in the future.

18. I regard the [NAME] that took place as serious; [NAME] was hospitalised for three days. The tenant did not attend the hearing. He has not provided any reassurance that this type of behaviour would not reoccur. I am not satisfied that it is unlikely that the tenant will commit any further breach of the same kind in the future.

19. The landlord has proven their claim under section 55(1)(c)(v) of the RTA and I decline to exercise my discretion to not terminate the tenancy under section 55(2). The tenancy is terminated.

20. As I have terminated the tenancy under section 55(1)(c)(v) of the RTA there is no need for me to consider the landlord’s alternative application.

[NAME]

28 February 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to [NAME] your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit [NAME]/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi [NAME]/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.[NAME]/disputes/enforcing-decisions https://www.[NAME]/disputes/enforcing-decisions http://www.[NAME]/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: [NAME]/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].