Tenant's Assault Leads to Tenancy Termination

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[2025] NZTT 5105868

TENANCY TRIBUNAL - Video Location

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

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

ORDER

1. The tenancy of [NAME] at Unit/[ADDRESS], [POSTCODE] is terminated, and possession is granted to [COMPANY], at 11.59 am on Tuesday 25 February 2025.

Reasons:

1. The landlord attended this video hearing on 18 February 2025.

2. The tenant did not attend the hearing by Teams video link. Telephone calls were made to the tenant on the number provided at the allocated hearing time. The call went to voicemail.

3. The matter had initially been set down for hearing on 8 January 2025. The tenant applied for an adjournment of that hearing on the grounds that he had just returned from a family funeral and his wish to file a cross application. The Tribunal granted the tenant’s adjournment application. The tenant was given until 16 January 2025 to file any counterclaim.

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4. On 13 February 2025, the tenant applied for a further adjournment on the grounds of another family funeral, to obtain legal advice and to file a cross application.

5. The application is a matter of significance and urgency. The request for an adjournment by the tenant was not supported by any independent evidence. The tenant had not filed his cross application by 16 January 2025, as previously ordered by the Tribunal. The Tribunal is required to deal with matters expeditiously. The tenant’s application for an adjournment was dismissed.

6. Kainga Ora (“[NAME]”) seek to terminate the tenancy on the grounds that the tenant has breached his obligations under s.55(1)(c) RTA by assaulting or threatening to assault an agent of the landlord, in this case, a [NAME] member.

7. Section 55(1)(c) RTA provides that the Tribunal shall terminate a tenancy where a tenant has assaulted or has threatened to assault, amongst other people, any agent of the landlord.

8. Section 55(2) RTA provides that the Tribunal may refuse to make any order under subsection (1) if, but only if, it is satisfied that the breach has been remedied (where capable of remedy), the landlord has been compensated for any loss arising from the breach and that it is unlikely that the tenant will commit any further breach of a kind to which s.55 RTA applies.

9. “Assault” is defined in s.2(1) of the Crimes Act 1961 as;

“The act of intentionally applying force 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 the purpose.”

10. 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

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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 of the same kind.

Landlord submissions 11. The tenancy commenced on 9 October 2020. The premises consist of a one

bedroom apartment on the top floor of a three storey walk up.

12. On 19 November 2024, [NAME] went to the premises to

carry out repairs. The tenant provided access to the contractors. The repairs were to a kitchen sink. The contractors asked the tenant to remove the dishes and water from the sink. The tenant refused to do so and said that it was the plumbers job. The contractors informed the tenant that they were not able to clear the sink and that the tenant should do so. The tenant replied by calling the [NAME] a “fucking racist South African” and that he would kill him. Fearing for their safety, the contractors left the premises.

13. A [NAME] Manager (“HSM”) visited the tenant on 21 November 2024 to discuss the allegation. The tenant denied making the remarks and said that the [NAME] had made a racist remark towards him. The tenant agreed to a [NAME] contractor going to the premises on 22 November 2024 with a [NAME] in attendance.

14. The tenant was issued with notice of the landlord needing to gain entry.

15. The tenant was subsequently advised that the [NAME], maintenance contractors and a locksmith would be at the premises at 10.00 am on 27 November 2024 and that the locksmith would be used to gain entry if the tenant were not present. A notice of entry was also left at the premises.

16. At 10.00 am on 27 November 2025, the [NAME], contractor and the locksmith met at the premises. The [NAME] rang the tenant’s intercom twice without response. They went up to the premises and knocked on the door, loudly announcing their name .The tenant did not respond.

17. Access to the premises was gained by the locksmith.

18. The [NAME] and contractor entered the premises, once again announcing themselves loudly.

19. The door to the bedroom was closed. The [NAME] knocked on the bedroom door. They heard a voice from inside the bedroom “who the fuck is in my room,

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fuck off.” The [NAME] moved towards the entry door with the intention of leaving.

20. The tenant emerged from the bedroom and said, “why the fuck are you in my home, its breaching the tenancy agreement.” The [NAME] replied that they were there to complete the maintenance work. The tenant said, “fuck off from property.”

21. As the [NAME] and contractor walked towards the door, the tenant approached the HSM from behind and pushed him in the back. The HSM continued to leave the premises. The tenant has then in closing the door, caught the [NAME] between the door and the door frame.

22. The [NAME] and contractors left. A report was made by the HSM to the Police.

23. [NAME] and the tenant met on 5 December 2025 to discuss the incident. In a letter to the tenant recording the meeting, [NAME] states that;

The tenant said that he was aware that [NAME] were coming as he had received the access letter.

The tenant variously said that he could not recall the incident, could not confirm if he had touched the staff member, did not touch the staff member and that the [NAME] and contractor should not have been in his home.

24. Evidence of the incident was provided by way of statement from [NAME] and the contractors.

25. Having reviewed all of the evidence, on the balance of probabilities, I prefer the evidence proffered by the landlord that the [NAME] was assaulted by the push to the back and being struck with the door by the tenant.

26. 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.

27. There is no evidence in front of me that would support a conclusion that the tenant is unlikely to commit a further breach of this kind. The factors that weigh

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with me in reaching this conclusion are the previous incidents of threatening language by the tenant towards [NAME] members and contractors and the nature of the unprovoked assault in the matter before the Tribunal. The tenant was fully aware of the proposed visit to the premises. [NAME] are entitled to go about their lawful business without being assaulted.

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

[NAME]

18 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 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: