Tenancy Tribunal Rejects Landlord's Termination Request Over Tenant Assault

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[2025] NZTT 5166533

TENANCY TRIBUNAL AT WHANGAREI | TE TARAIPIUNARA RETIHANGA KI WHANGĀREI-TERENGA-PARĀOA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

The application is dismissed.

Reasons:

Background

1. This tenancy began in October 2002. The landlord is recorded as [COMPANY], and the tenant is Karla White.1 The tenancy agreement is a standard Tenancy Services document.

2. On or around 11 February 2025, a contractor who was at the premises to install extractor fans cut through a soffit that has asbestos building materials in it.

3. [NAME] sent a text message and a letter to [NAME] on 11 February telling her that she needed to vacate the premises until remedial work could be done to make the premises safe. The landlord offered [NAME] alternative accommodation at [ADDRESS].

1 I have used [NAME]’s preferred spelling of her name in this decision.

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4. On 14 February, [NAME] arrived on site with [NAME], a builder, and [NAME]’ son, who works with him. [NAME] was there to carry out work on the soffit. [NAME] was there to oversee the work and to carry out a property inspection.

5. [NAME] and [NAME] were on site. [NAME] and [NAME] told [NAME] and [NAME] that they had to leave. [NAME] and [NAME] told [NAME] that she was responsible for the asbestos problem at the property. Some of these interactions are captured on a video recording taken on [NAME]’ phone. [NAME] called the police.

6. [NAME] discovered that he did not have the right materials to complete the repair. He left the premises to go to a building materials store in Paihia.

7. [NAME] stayed at the premises to “secure the space”. She stood near the damaged soffit. The heated exchanges continued between [NAME], and [NAME].

8. [NAME] said that at one point [NAME] threatened her grandchildren, and she decided to begin recording [NAME]. She said that [NAME] then attacked her, kicked her several times, and took her phone.

9. The application seeks termination of the tenancy on the grounds of assault. The hearing took place in Whangarei on 22 May 2025.

10. The issues to determine are:

a. Is it proven that [NAME] assaulted [NAME]?

b. If so, are there grounds for termination of the tenancy?

11. [NAME] raised several procedural/jurisdictional arguments. [NAME] said that the Tenancy Tribunal cannot and/or should not determine this application. I will address these arguments first.

Procedural / jurisdictional arguments

12. [NAME] said that:

a. This is an excluded tenancy under section 5(1)(r) of the Residential Tenancies Act 1986 (“RTA”).

b. Her rights to occupy the premises can only be determined by the Māori [ADDRESS], not by the Tenancy Tribunal. A related sub-argument is that the Tenancy Tribunal should not determine the application until the question of ownership is determined by the Māori [ADDRESS].

Section 5(1)(r)

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13. Section 5 RTA lists types of tenancies that the RTA does not apply to. If the RTA does not apply, the Tenancy Tribunal does not have jurisdiction.

14. Section 5(1)(r) states the RTA does not apply:

where the tenancy arises wholly from or depends upon the ownership by the tenant of any shares in a company that owns the premises

15. I acknowledge that this argument is an attempt by [NAME] to find a provision in the RTA that links to her broader argument that she has rights as an owner of the land, not (or not just) as a tenant. I make some comments about that argument below.

16. In terms of the specific question of whether this is an excluded tenancy under section 5(1)(r) for the following two reasons.

a. The first reason is because the premises are not owned by a company.2

b. The second reason is because I find that even if this was an excluded tenancy, the parties have contracted back into the RTA. Section 8 of the RTA confirms that parties to an excluded tenancy can contact back in to the Act. That provision holds:

8. Parties to excluded tenancies may agree that Act shall apply

(1) Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree.

(2) Without limiting subsection (1), any such agreement may confer upon the Tribunal, in respect of the tenancy, all or any of the jurisdiction conferred on the Tribunal by this Act in respect of tenancies to which this Act applies.

In this case, as noted above the parties used a standard form tenancy agreement from Tenancy Services. That agreement expressly records on page 2 of the agreement that:

The landlord and tenant agree that

...

4 This tenancy is subject to the Residential Tenancies Act 1986.

2 See the definition of a company in the Companies Act 1993

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In Featherston and Featherson v Barfoot and Thompson Limited3, the District Court confirmed that the effect of this wording in a standard form tenancy agreement is that the RTA applies to the tenancy, even if would otherwise be an excluded tenancy under section 5:

It is quite clear that the tenancy agreement imports all of the provisions of the Act into the tenancy. The agreement is in writing signed by the necessary parties and plainly is intended to incorporate all the provisions of the Act. …

Consequently, I am in no doubt that the Act applied to the tenancy and that the tenancy Tribunal had jurisdiction.

Māori [ADDRESS]

17. The Māori [ADDRESS] has jurisdiction to hear and determine any claim to the possession and ownership of Māori freehold land or any interest in such land.4

18. A recent decision from the Māori Appellate Court addressed the interplay between the Māori [ADDRESS] and the Tenancy Tribunal in the following terms:5:

It is clear that there have also been cases where the Tenancy Tribunal has considered claims involving Māori freehold land and declined to exercise its jurisdiction, particularly where there are proceedings before the Māori [ADDRESS].

In principle there is no barrier to a residential tenancy existing on Māori freehold land, and the Tenancy Tribunal determining whether a residential tenancy exists. This is however subject to the exclusion of tenancies between whanau members.

Section 5(1)(n) of the RTA provides that RTA does not apply where the premises continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner or by any member of their family. A family member is defined to include any person who is a member of the landlord or owner’s whānau or other culturally recognised group. Given the common whakapapa that ordinarily exists between owners, this is likely to mean the existence of a residential tenancy on Māori freehold land is likely to be the exception rather than the norm.

19. To my knowledge, [NAME] has not filed a claim in the Māori [ADDRESS] about the ownership of this land. I understand that another one of the Trust’s tenants on Te Kemara Ave, [NAME], may have filed such a claim but I have no details about that claim.

3 [2015] NZDC 12810 4 Section 18, Te Ture Whenua Maori Act 1993 5 [NAME] v [NAME] 2025 Māori Appellate Court MB 143, para 41-46

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20. Having regard to the Māori Appellate Court’s comments in [NAME], the relevant principles are:

a. It is possible to have a residential tenancy on Māori freehold land.

b. The Tenancy Tribunal has jurisdiction to determine whether or not a tenancy exists.

c. The exclusion in section 5(1)(n) requires careful consideration in tenancies on Māori freehold land, having regard to the definition of “family member”.

d. If the Tribunal has jurisdiction in any particular case, the Tribunal may still decline to exercise it.

21. All of these principles encourage the Tribunal to take a cautious approach in respect of tenancies on Māori freehold land.

22. I have elected to proceed with determining this application having regard to the following considerations:

a. For the reasons detailed below, I am not making an order terminating the tenancy.

b. No evidence or argument was put forward that section 5(1)(n) is relevant to this tenancy. In any event, for the reasons given above, I am satisfied that in the tenancy agreement the parties agreed that the RTA would apply.

c. There are currently no proceedings in the Māori [ADDRESS] in respect of the ownership of these premises.

Other procedural / jurisdictional arguments

23. I will briefly address some of the other jurisdictional / procedural arguments that [NAME] put forward.

24. [NAME] said that it was inappropriate for me to hear this application because I was the adjudicator on a Tenancy Tribunal matter between [NAME] and [NAME]’s neighbour [NAME].

25. In my view no conflict of interest arises merely because I was the adjudicator in a dispute relating to a neighbouring tenancy.

26. [NAME] and [NAME] issued an invoice to [NAME] seeking payment of $375,000 for failure to remediate asbestos, failure to provide potable water etc. [NAME] argued that the Tenancy Tribunal cannot hear the landlord’s application because their invoice is for an amount above $100,000 which is above the Tenancy Tribunal’s jurisdiction.6

6 Section 77(5) RTA

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27. My finding is that this invoice does not prevent the Tribunal from determining the Landlord’s application, and it does not require the Tribunal to transfer the proceedings to the District Court, because:

a. [NAME] has not filed a cross-application.

b. Even if [NAME] had filed a cross-application claiming a sum above $100,000:

i. The Tenancy Tribunal has exclusive originating jurisdiction to determine disputes between landlords and tenants under the RTA.7

ii. The $100,000 limit applies to orders that the Tribunal may make, not to the amount that a party may claim. The issues in dispute can, and should be heard by the Tenancy Tribunal even if the amount in dispute exceeds the $100,000 limit.8

Is it proven that [NAME] assaulted [NAME]?

Background

28. [NAME] alleges that [NAME] assaulted her by attempting to take her phone then kicking her several times when she refused to let it go.

29. I was not provided with any video recording of this alleged incident.

30. [NAME] was recording on her phone, but she no longer has that phone. [NAME] said that [NAME] took it from her in the assault and has not returned it. [NAME] denies this.

31. [NAME] and [NAME] both had their phones and were recording. At the hearing I was shown a very brief recording taken on [NAME]’s phone, which appears to show [NAME] lunging towards [NAME]. I was not provided with a copy of this recording.

32. The evidence that is available to me is the oral and statement evidence provided by [NAME], and [NAME].

Law

33. The burden of proof that applies in the Tenancy Tribunal is the civil standard of “on the balance of probabilities” or “more likely than not”, not the (usual) criminal standard of “beyond a reasonable doubt”.9

7 Section 82(1). See also Zhong v Levi HC Auckland CIV-2009-404-3190 8 Holler v Osaki [2012] NZHC 939, Cui v Shang [2018] NZHC 2810

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34. Where an application is made to terminate a tenancy on the grounds of assault, and criminal charges have also been laid, the Tribunal can and should determine the application before the criminal charges are heard by the court.10

35. An assault is defined as:11

]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.

36. Every person may, in the defence of themselves or another, use such force as in the circumstances he or she believes them to be, it is reasonable to use.12

37. The use of reasonable force in self-defence is a defence to a claim for termination of a tenancy for assault.13

Findings

38. At the hearing, [NAME] did not deny that he applied force to [NAME].

39. [NAME] said that his actions were in reasonable self-defence because [NAME] had assaulted both him and [NAME].

40. I asked [NAME] to describe the circumstances in which he applied force to [NAME]. He declined to do so. I asked [NAME] to demonstrate in what way he applied force to [NAME]. He declined to do so.

41. The use of reasonable force in self-defence is not an assault. [NAME] has the burden of proof to establish the necessary elements of a self-defence argument, including the requirement that the force used was reasonable in the circumstances that he believed them to be.

42. [NAME] and [NAME] may have reasons for declining to provide evidence such as the full video recordings on their phones or a detailed description of what happened. However, I can only make a decision based on the evidence that is available to me, not evidence that is withheld so that it may used in other proceedings.

43. [NAME] provided photographs showing heavy bruising on her legs.

44. My finding is that:

a. [NAME] applied force to [NAME] at the premises on 14 February 2025.

9 Kaipo v Clark & McCarthy (DC) TT233.02 10 Clarke v Housing New Zealand DC Blenheim CIV-2008-006-33, 19 March 2008 11 Section 2(1) Crimes Act 1961 12 Section 48 Crimes Act 1961 13 Bell v Kirton TT Timaru TT35/91 17 May 1991, Landlord v Gilliland & Butters [2024] 4917658, 4964853

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b. It is not proven that [NAME] acted in defence of himself or of [NAME] or that the force that he applied to [NAME] was reasonable in the circumstances.

c. [NAME]’s act of applying force to [NAME] was an assault.

Are there grounds for termination of the tenancy?

45. Section 55(1)(c) RTA states that the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that:

The tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault or to threaten to assault […] any agent of the landlord

46. The Tribunal has a limited discretion to refuse to terminate, if certain criteria are met.14

47. Section 55(1)(c) focuses on the words and actions of the tenant.

48. [NAME] is the sole tenant in this tenancy. It is not alleged that [NAME] assaulted [NAME]. [NAME] did allege that [NAME] threatened to hurt her grandchildren. [NAME] denied saying this, and there is no independent evidence of this alleged threat.

49. Applying section 55(1)(c), the Tribunal could only terminate the tenancy if it was proven that [NAME] “caused or permitted” [NAME] to assault [NAME].

50. Section 41(1) RTA is also potentially relevant to this analysis. Section 41(1) states:

The tenant shall be responsible for anything done or omitted to be done by any person […] who is in the premises with the tenant’s permission if the act or omission would have constituted a breach of the tenancy agreement if it had been the act or omission of the tenant

51. Section 41(1) broadens out the tenant’s responsibility. It makes the tenant responsible for the actions of others even if the tenant didn’t “cause or permit” them. It is enough if the tenant allowed the person onto the premises.

52. The Tribunal has, on occasion, found that section 41(1) applies in cases where the landlord sought termination for an assault or threat to assault by someone other than the tenant. In those cases, the Tribunal terminated on the grounds that the person who committed the assault was on the premises with the tenant’s consent.15

14 Section 55(2) RTA 15 Landlord v Campbell & Campbell [2022] 4326042, 4337320, Dimalanta & Dimalanta v Tenant [2022] NZTT 4327030, Otautahi Community Housing Trust v Walsh [2025] NZTT 5223511

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53. In other decisions, the Tribunal has acknowledged that section 41(1) applies, but has made a specific finding that the Tenant caused or permitted the assault. In those decisions, although section 41(1) is referred to, the basis of termination is section 55(1)(c).16

54. The distinction can be critical. It is critical in this instance. If section 41(1) applies in this case, the landlord’s claim would be simple. It is obvious that [NAME] was at the premises with [NAME]’s consent, but the question of whether [NAME] “caused or permitted” [NAME] to assault [NAME] is more complex.

55. Therefore, I must address the question of whether section 41(1) applies.

56. My finding is that it does not, for the following reasons:

a. Section 41(1) specifically refers to acts or omissions that would have been a breach of the tenancy agreement. The basis of a claim for termination for assault is not a breach of the tenancy agreement but a breach of the RTA. I do not think it can be argued that the reference to a breach of the tenancy agreement includes a breach of the RTA by implication. Section 56 RTA, which allows landlords or tenants to terminate a tenancy for breach, applies if “the other party has committed a breach of any of the provisions of the tenancy agreement […] or of this Act”.17 If Parliament had intended section 41(1) to apply to breaches of the RTA, it would have used the same wording.

b. If section 41(1) applied, then the “cause or permit” wording would not be necessary in section 55(1)(c). The Tribunal would only have to consider whether the person who committed the assault was at the premises with the tenant’s consent. The fact that the wording is there indicates that termination for assault is in a special category. A higher threshold of tenant responsibility is required. In support of this, I note that there are other types of breaches that are in this ‘special category’, such as the duty to not use the premises, or permit them to be used, for an unlawful purpose18, or the duty to not cause or permit any interference with the landlord’s other tenants.19 In claims for this type of breach, where the person who committed the breach is not the tenant but is a flatmate or guest of the tenant, the landlord must show not only that the breach occurred but that the tenant caused or permitted the other person’s behaviour. The ‘default’ section 41(1) responsibility on the tenant for anything done on the premises by consented visitors is not sufficient.

16 Kainga-Ora Homes & Communities v Nolte [2024] NZTT 5063128, Read v Broadmore [2025] NZTT 4959714, 5150052, 17 Section 56(1)(a) RTA 18 Section 40(2)(b) RTA 19 Section 40(2)(c) RTA

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c. As a general principle of statutory interpretation, where the law has a specific provision about a subject, there is a presumption that a more general provision is not intended to interfere with the special provision.20

57. Therefore, I may only make a termination order in this instance if the evidence shows me that [NAME] “caused or permitted” [NAME] to assault [NAME].

58. I heard evidence from [NAME], and [NAME] at the hearing on 22 May. I was also provided with video recordings taken by [NAME], which show some parts of what happened when [NAME] and [NAME] arrived at the property.

59. [NAME] had given notice that she and [NAME] were coming to the premises. [NAME] and [NAME] had a legal right under the RTA to enter the premises. [NAME] and [NAME] refused to allow [NAME] and [NAME] to enter. It is a breach of the RTA for a tenant, without reasonable excuse, to refuse to allow the landlord to enter the premises when the landlord has the legal right to enter.21

60. [NAME] could have chosen to leave at that point, and to issue a breach notice to [NAME].

61. [NAME] stayed. Although the video shows that [NAME] remained calm and non-reactive, the abuse from [NAME] and [NAME] escalated to the point that [NAME] felt unsafe. She rang the police.

62. A landlord may issue a notice to the tenant if the tenant, or anyone who is at the premises with the tenant’s consent, engages in anti-social behaviour. Anti- social behaviour is harassment, or any other act that reasonably causes alarm, distress, or nuisance that is more than minor. If three incidents of anti-social behaviour occur in a period of 90-days, and the landlord gives the tenant notice of the behaviour, the Tribunal must terminate the tenancy.22 [NAME] could have left the premises at this time and issued an anti-social behaviour notice. [NAME] and [NAME]’s behaviour, shown in [NAME]’ videos, clearly meets the definition of anti-social behaviour.

63. [NAME] stayed.

64. [NAME] and his son then left to get building materials from a local store. [NAME] stayed at the premises on her own. [NAME] was clearly angry about the asbestos incident, which had happened only a few days before. [NAME] was in temporary accommodation at this time.

20 This principle is known as generalia specialibus non derogant. [COMPANY] v Commissioner of Inland Revenue [1986] 1 NZLR 694 21 Section 48(2)(b) RTA 22 Section 55A RTA

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65. At one point [NAME] was seated in a chair near where [NAME] was standing, close to the soffit repair.

66. At the hearing, [NAME] showed a very brief portion of a video recording taken on [NAME]’s phone, which seemed to show [NAME] lunging at [NAME]’s phone. I was not provided with a copy of this video recording.

67. [NAME] described the assault as follows:

He had been standing in the porch area around the corner from where I was standing and popped in and out from around the corner to hurl more abuse at me. He would have been no more than 2 metres away).

He suddenly charged at me from my left side and grabbed, hit and kicked me in an attempt to grab my phone. I bent forward to protect my head in particular and would not let the phone go. He proceeded to kick me very hard (with boot type shoes on) until I let go of the phone. He then kicked me again for good measure and ran away.

68. I do not have good information about where [NAME] was positioned when this happened. Given that [NAME] had been close to where [NAME] was standing (“no more than 2 metres away”) and that he charged at [NAME] suddenly from around the corner, there is no reasonable basis to argue that [NAME] could have physically intervened to stop the assault.

69. There is no evidence to show that [NAME] encouraged [NAME] to attack [NAME].

70. It could be argued that [NAME] caused or permitted the assault by not asking [NAME] to leave before the assault happened. [NAME]’ video recording shows [NAME] behaving in an antagonistic and ‘shouty’ manner, but not (at that time) displaying any behaviour that is physically threatening. [NAME] and [NAME] obviously give different accounts of the way that [NAME] behaved after [NAME] left.

71. It is clear that [NAME] was upset about [NAME] and [NAME] being there. The situation was tense. In the circumstances it is understandable why [NAME] did not want to be on her own.

72. From [NAME]’s description of what happened, it seems that [NAME]’s actions were sudden and, in a sense, unpredictable. He reacted when [NAME] (allegedly) said something that [NAME] did not want recorded on [NAME]’s phone.

73. In summary:

a. There is no evidence that [NAME] encouraged or instructed [NAME] to assault [NAME].

b. There was no reasonable opportunity for [NAME] to physically intervene and prevent the assault.

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c. Both parties could have de-escalated the situation, but both chose not to. It appears that the escalation to physical violence was sudden and was triggered by a particular action. [NAME] could have asked [NAME] to leave, but on the evidence available to me there were no obvious indicators that [NAME] could quickly go from being verbally abusive to physically attacking [NAME].

74. My finding is that it is not proven that [NAME] “caused or permitted” [NAME] to assault [NAME].

75. Therefore, the grounds for terminating the tenancy under section 55(1)(c) are not made out.

Summary

76. In summary:

a. It is proven that [NAME] assaulted [NAME] at the premises on 14 February 2025. [NAME] applied physical force to [NAME]. [NAME]’s defence of reasonable force in self-defence is not proven.

b. Section 41(1) RTA does not apply. It is not sufficient that there was an assault on the landlord’s agent by someone who was at the premises with the tenant’s consent.

c. Section 51(1)(c) RTA applies. The evidence must show that the tenant “caused or permitted” the assault.

d. For the reasons given above, my finding is that it is not proven that [NAME] caused or permitted the assault.

77. It follows that the landlord’s application for termination must be dismissed.

[NAME]

11 June 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: