Tenancy Terminated for Threatening Assault

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[2025] NZTT 5223511

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Unit/[ADDRESS], [POSTCODE], [ADDRESS]

1. The tenancy of [NAME] at Unit/Flat [ADDRESS], [POSTCODE], [ADDRESS] is terminated, and possession is granted to [COMPANY] at 4pm on Thursday 17 April 2025.

2. [NAME] will pay [COMPANY] the sum of $27.00 immediately.

Description Landlord Filing fee reimbursement $27.00 Total award $27.00 Total payable by Tenant to Landlord $27.00

Reasons:

1. The hearing was conducted remotely. The landlord’s representatives attended the hearing as did [NAME]. Mr T and Mr K also attended to give evidence.

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2. The landlord has applied for termination of the tenancy for breach of the tenant’s obligations. The landlord relies on section 55(1)(c)(iv) to terminate the tenancy.

3. The tenant occupies a unit, one of 37 units managed by [COMPANY] ([NAME]) in the [ADDRESS] complex. The tenancy commenced on 29 April 2021. [NAME]’ partner, [NAME], also resides at the premises although he is not a named tenant on the agreement.

4. 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. The District Court in [NAME] v [NAME] 2008-[PHONE] have confirmed however that the Tribunal should proceed to hear an application even when a matter is pending in the criminal court, and cannot make the decision conditional on the outcome of criminal proceedings.

Landlords evidence

5. The landlord claims that on 17 March 2025 [NAME]’s partner, assaulted another tenant in the complex. He and [NAME] had driven from one end of the complex to a shared carpark outside Mr T’s unit. There was also a witness to this incident. Although the police were called at the time, their investigations are ongoing and at this stage no charges have been laid.

6. The landlord also stated that over the last year 3 notices of antisocial behaviour have been served on [NAME] regarding the behaviour in the complex of [NAME]. A 14-day notice for overcrowding has also been served. [NAME]’s tenancy agreement only allows for one occupant. The Manager also said they had been involved in conversations with [NAME], explaining that the behaviour of [NAME], was putting her tenancy at risk.

Mr T’s evidence

7. The alleged victim, Mr T gave evidence as follows.

8. On the night of 16 March 2025, he put a post on Facebook where he had written “For the majority of you, you are all a bunch of disappointments, fow vibrating, lazy, unheaftliy, unmotivated, uninspired ungodly disappointments. Wake up”. This post was not directed to anyone individually.

9. The next day, 17 March, he was sitting in his chair in his unit alone and next minute [NAME] burst into his unit through the door. He knew [NAME].

10. As he walked into the unit [NAME] was saying, "What the f… are you talking about on Facebook?" As he walked in, he kicked over the dog bowl of water and a pot plant.

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11. Mr T stood up and [NAME] took a swing at him using his left hand and trying to punch him and also trying to grab his singlet. He continued swinging trying to punch him about 3 times although none of the punches connected.

12. [NAME] started to walk backwards towards the door with Mr T following him. He saw [NAME]’s car outside his unit with [NAME] standing next to the car. He tried to swing another punch at Mr T again.

13. As he got to get in the car he said “You are a paedaphile, sleep with one eye open because I am going to kill you”.

14. [NAME] and [NAME] got into the car. At this point Mr T was standing in the shared parking area. [NAME] reversed back then drove the car towards Mr T causing to him to have to jump back on the verge to escape being hit.

15. The police were called.

16. Being fearful for his life, Mr T is now being accommodated elsewhere temporarily while this is resolved.

17. These events have had a traumatic effect on him.

Mr K’s evidence

18. A witness to these events, Mr K, also gave evidence.

19. Mr K was parked in the shared car park outside Mr T’s unit. It is very close to Mr T’s unit. He heard a person yelling in Mr T’s unit and when he looked into Mr T’s lounge he saw [NAME]. He knew [NAME] as he drives a couple of different cars loudly around the complex and lives with [NAME].

20. He was able to see through Mr T’s big lounge window, and could see [NAME] face to face with Mr T. He could also hear [NAME] yelling at Mr T, then saw [NAME] swing punches at him. There were several punches, but he wasn’t sure if any of his punches connected.

21. [NAME] came outside and Mr T was behind him. [NAME] went towards his car, and he said, "You better sleep with one eye open cunt, cause I will kill you in your sleep".

22. He then got into his car and left the complex.

[NAME]’s evidence

23. [NAME] listened to the evidence of Mr T and Mr K and had no questions for them. She acknowledged that she was outside by the car when the alleged events occurred in Mr T ‘s unit and agreed with the events as outlined by Mr T and Mr K.

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24. She said she was currently in Dunedin after a family bereavement but when she returned to Christchurch she would be ending her tenancy. There was no fixed date for that. She confirmed that she and [NAME] were still in a relationship, although they were both away at the moment.

Should the tenancy be terminated?

The law

25. The landlord seeks termination under section 55(1)(c)(iv) RTA. This section provides for the termination of tenancies for assault. It reads:

Section 55

(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 assault, or has caused or permitted any person to assault, or to threaten to assault, any of the following persons:…

(v) any occupier of any building of which the premises constitutes a

part.…

(2) The Tribunal may refuse to make an order under subsection (1) of this section 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))].

26. Section 41(1) RTA states: The tenant shall be responsible for anything done or omitted to be done by any person (other than the landlord or any person acting on the landlord’s behalf or with the landlord’s authority) who is in the premises with the tenant’s permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant.

27. Assault 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 other to believe on reasonable grounds that he has the present ability to effect his purpose.

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28. In the case of [NAME] v [NAME], High Court Christchurch, CIV- 2004 – 409 – 717, 2 July 2004, his Honour Judge Keane accepted that an assault, or threat of assault, once made could not be remedied. His Honour however, formed the view that the discretion under section 55(2) 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), 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

29. I have carefully considered the landlord’s submissions, and the evidence of Mr T, Mr K and [NAME] and I am satisfied on the balance of probabilities that [NAME] threatened to assault Mr T on 17 March 2025 by attempting to punch him of at least 3 occasions and threatened to kill him. [NAME] was not a named tenant, he was in the premises with [NAME]’s permission and as such she is responsible for his actions, as if they were committed by [NAME] herself

30. The landlord has therefore proven to the required standard that the requirements of Section 55(1)(c)(iv) are established.

31. 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) RTA. The breach is not capable of remedy and the landlord is not able to be financially compensated. 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.

32. I regard the threatened assaults and the threat to kill that took place as extremely serious and unprovoked and it has had a significant impact on Mr T, fearing for his life. I am not satisfied that it is unlikely that [NAME] will commit any further breach of the same kind in the future should he return to the complex. [NAME] has said she is planning to end the tenancy there is no fixed date for that.

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

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34. [NAME] has wholly succeeded with the claim I must reimburse the filing fee. Suppression was not sought.

[NAME]

15 April 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 support 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 tenancy.govt.nz/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 tenancy.govt.nz/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.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/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: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: Section 55