Tenant Ordered to Pay Rent Arrears Despite Reliance on WINZ Approval

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[2025] NZTT 5071789

TENANCY TRIBUNAL AT [Event location suppressed]

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.

2. [The tenant/s] must pay [The landlord/s] $9,984.14 immediately, as per the table below.

Description Landlord Tenant Rent arrears to 27 November 2024 $9,957.14 Filing fee reimbursement $27.00 Total award $9,984.14 Total payable by Tenant to Landlord $9,984.14

Reasons:

1. Both parties attended the hearing. The tenant attended by teleconference.

Background

2. On 4 September 2024 the parties signed an agreement, signed using the [NAME] app, for a tenancy of the premises for a fixed term from 7 September 2024 to 6 September 2025.

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3. It is of note that immediately above the parties’ signatures, the agreement records, “The landlords and tenants must sign here to show that they have read the agreement and attached documents in full and that they agree to all the terms and conditions outlined in the tenancy agreement. By signing this agreement you are entering a legally binding contract.”

4. On 5 September 2024 the tenant the messaged the landlord, “I have just left WINZ as the appointment that was supposed to be 8:30 this morning was in fact booked for the 12th. I have another appointment but the best I could get was tomorrow at 3:45. Very sorry to muck you about.”

5. On 6 September 2024 the tenant messaged the landlord, “So I got to speak to WINZ today and they have decided that 850 is outside of my means to pay in rent so have refused to help me into the property. I'm so sorry for wasting your time.”

6. The tenant’s evidence is that she considered the matter finished, closed the [NAME] portal and did not respond to any further messages sent to her by [NAME].

7. The landlord notified the tenant through the portal that he considered her obliged to continue with the tenancy.

8. He left the rental listing open and took a number of inquiries about possible tenancies for the premises. He says that he arranged viewings and after declining perhaps 5 applications for the tenancy found a [NAME] and an agreement was signed toward the end of November for a tenancy beginning on 9 January 2025.

9. Initially the landlord claimed rent from the tenant through to the date the new tenancy started but during the hearing the land offered to reduce the claim to the time the new agreement was signed.

10. A hearing on 25 February 2025 was adjourned to allow the parties to provide further evidence on the two issues that arose during that earlier hearing, namely:

a. whether the agreement was conditional on WINZ being prepared to support the tenancy; and

b. whether reasonable mitigation steps were taken by the landlord to reduce loss when the tenant advised that she could not take the tenancy.

Was the Agreement Conditional?

11. The tenant’s evidence is that during a conversation with the landlord before the agreement was signed, she made it clear that she was reliant on WINZ approving the tenancy and assisting her with the rent. She says it was clear and

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understood by the landlord that she would not be able to proceed with the tenancy if WINZ did not approve it.

12. The tenant says that the only reason she signed the agreement is because WINZ had told her she needed to have a signed agreement in place before she could apply to WINZ for housing support. If true, that would be a very surprising and risky policy.

13. For his part, the landlord says there was no such specific discussion. He says that he has previously provided tenants with offer letters to confirm the terms of an available tenancy for WINZ purposes, but has never been required to sign a binding residential tenancy agreement for that purpose. His position is that as far as he was aware, in signing the agreement, both parties were committing to it.

14. There is a tenancy agreement, signed by both parties that is clear in its terms. It is not expressed to be conditional in any way. For the Tribunal to find that the parties had agreed different or additional terms, there would need to be more clear evidence of that.

15. I do not doubt that the tenant genuinely believed she could not be required to proceed if WINZ did not approve the tenancy she had entered into. Her actions are consistent with that belief. That however is not the legal effect of the agreement that was signed. The warning contained in the agreement, quoted above, makes that clear.

16. I do not find it proved that the agreement was conditional and both parties were bound by its terms.

17. Although no such application has been made by the tenant, I have considered whether she might be entitled to ask the Tribunal to make an under s.66(1) RTA which allows the Tribunal to make an Order reducing a fixed term, “….where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced.”

18. Holding the tenant to the agreement she could not proceed with, will have harsh consequences. There is however no evidence of an unforeseen change in the tenant’s circumstances, or evidence that would enable the Tribunal to assess the comparative hardship the parties would suffer.

Did the Landlord take reasonable mitigation steps?

148. Section 49 RTA provides that, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from

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that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”

18. The Tribunal must accordingly ask what steps it would have been reasonable for the landlord to take in these circumstances, to limit the loss arising from the tenant’s breach.

19. It was reasonable for the landlord to keep the listing open and actively look for new tenants. The landlord did so. It was reasonable for the landlord to keep endeavouring to communicate with the tenant, which was done through [NAME], which included emails sent to the tenants e-mail address, although the tenant says that if she had seen emails directly from the landlord rather than from [NAME] and she may have taking a different approach to responding.

20. The evidence does not support a view that it was unreasonable for the landlord not to reduce the advertised rental.

21. As discussed during the hearing my concern is that despite those efforts, it did take quite a long time to establish a new tenancy, raising the question of whether the landlord was unreasonably selective in assessing new tenants, because he could rely on the tenant’s ongoing rent obligations.

22. The evidence shows multiple inquiries about the tenancy, active responses from the landlord and arranging viewings in an attempt to establish a new tenancy. The landlord says, which is likely to be the case, that it was in his interests to find a [NAME] sooner rather than later.

23. I do find it just that the tenant not penalised for the landlord selecting a [NAME] who could not move in for several weeks after the agreement was signed. The landlord’s agreement to reduce the rent claim to when that new agreement was signed, is appropriate.

24. I do not find it proved that the landlord has failed to take reasonable steps to mitigate the loss arising from the tenant’s breach of the agreement. The tenant is accordingly liable for rent from 7 September 2024 to 27 November 2024.

25. Because [The applicant/s] has substantially succeeded with the claim I must reimburse the filing fee.

[NAME] 26 March 2025

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Please read carefully: Visit justice.govt.[NAME]/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.[NAME]/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.[NAME]/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.[NAME]/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.[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 tenancy.govt.[NAME]/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.[NAME]/tribunals/tenancy/rehearings-appeals https://www.justice.govt.[NAME]/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.[NAME]/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.[NAME]/fines/about-civil-debt/ https://www.tenancy.govt.[NAME]/disputes/enforcing-decisions https://www.tenancy.govt.[NAME]/disputes/enforcing-decisions http://www.tenancy.govt.[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: tenancy.govt.[NAME]/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: