Tenant’s Retaliatory Notice Claim Rejected by Tenancy Tribunal

OUTCOME: Dismissed

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[2026] NZTT 5498969

TENANCY TRIBUNAL AT WAITĀKERE

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The tenant’s application is dismissed.

2. It is declared that the landlord’s termination notice dated 2 April 2026 is valid and it terminates the tenancy at 11.59pm on 1 July 2026.

3. The tenant’s request for name suppression is refused.

Reasons:

1. Both parties attended the hearing on 4 June. The hearing was conducted by video conference. The landlord was represented by her [NAME] manager.

2. The tenant claims that the landlord’s 90-day termination notice dated 2 April 2026 is retaliatory and therefore invalid and she seeks an order to that effect.

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Adjournment

3. This application was filed on 8 May. The notices of hearing were sent on 29 May. On 2 June the tenant applied to the Tribunal on for an adjournment. She said that she was not given enough time to add further information and to prepare for the hearing.

4. I refused the adjournment but said that the tenant could renew her application at the hearing, which she did.

5. After hearing evidence and submissions from the parties I said that I would consider the case including whether to adjourn the hearing. For the following reasons I have not adjourned the hearing, and I have made a final order.

6. As set out in the next section, there is a time limit within which an application to set aside a termination notice for retaliation must be filed. The reason for that is that the parties need certainty as soon as reasonably possible as to whether the termination notice takes effect or not. For the same reason, such applications need to be heard promptly.

7. Parties are expected to provide their evidence to the Tribunal promptly, ideally with their application or soon afterwards. Parties are entitled to receive reasonable notice of the hearing. That can be as little as a few days. Waiting until receipt of the hearing notice before gathering and filing evidence is not reasonable and it is not a good reason for an adjournment. That is especially so in a case like this where time is of the essence.

8. Arranging witnesses to attend is rather different because until there is a hearing date, witnesses cannot make their own arrangements to be available for the hearing. I note that parties can apply to the Tribunal for a witness summons to issue to require a witness to attend.

9. In this case I do not think that the [NAME] who the tenant wanted to give evidence would have added anything material to the evidence. What happened during the [NAME] tenancy is recorded in the Tribunal’s order made at the time and that is considered below.

10. The tenant has had ample time to provide her written evidence, and it is difficult to see what further relevant evidence she could have provided. I am satisfied that I have been able to come to a properly considered decision without needing to adjourn the hearing.

11. I note that the tenant has written to the Tribunal since the hearing stating that I made a comment about the shortness of the hearing time available for the hearing and she expressed her concern that there was not enough time for the hearing. My concern related to the scheduling of the hearing, not the time available for the hearing. The scheduled time for a hearing is intended to allow for hearing time and decision writing time. In my view more time should have been allowed for decision writing. There was enough time for the hearing itself

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and the parties had a full opportunity to give their evidence and make their submissions.

Law

12. Section 54 of the Residential Tenancies Act 1986 (the Act) provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if:

[I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.

13. Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00.

14. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest.

15. There are four issues to consider: a. Does the termination notice comply with s 51 of the Act? b. If so, was the application made within 28 working days of the notice being

served? c. Has the tenant proved that, in terminating the tenancy, the landlord was

motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord?

d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?

16. The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to … to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.

17. Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.

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Background 18. This tenancy began in February 2023 initially for a one-year fixed term. The

tenant said that she raised some maintenance issues with the landlord during the tenancy. The landlord dealt with most of them but there was one that she said the landlord has not dealt with. That is the condition of the window in one of the bedrooms which the tenant said allows draughts into the room making it cold, damp and prone to mould.

19. There is another issue concerning the curtains in the room but that is very much a secondary issue. After hearing evidence about it, my view is that the landlord it is not relevant to my consideration of this application. It is unlikely that it would have any bearing on service of the termination notice.

20. The landlord served a 90-day termination notice on the tenant in May 2025. There was a discussion between the [NAME] and the tenant about the notice and the landlord withdrew the notice. The tenant said that it was withdrawn because the landlord accepted that it was retaliatory.

21. The [NAME] denied that and said that it was withdrawn for compassionate reasons following the death of the tenant’s mother who was also a joint tenant of the premises. The agent’s written explanation for the notice at the time was that the landlord felt that the relationship between them had broken down. The tenant responded by contending that the explanation proved that it was retaliatory. That is incorrect.

22. The tenant’s case is essentially that the problem with the window has not been resolved and it is her insistence that the landlord take some remedial action in relation to it that has motivated her to serve another termination notice.

23. The landlord denies that, and her agent said that she is not in good health, and she wants possession of the premises so that she can carry out relevelling work on the [NAME]. The landlord denies that the window does not comply with the relevant [NAME] standards.

Discussion and Decision

24. The tenant refers to a Tribunal decision concerning a termination notice served on the [NAME]. That order was issued on 20 April 2024 and ordered the landlord to pay the [NAME] compensation and exemplary damages for an unlawful termination notice.

25. The application included a claim of a retaliatory notice but that was withdrawn at the hearing. At that time, landlords could not serve a 90-day notice without a reason and the landlord’s reason was that she intended to carry out extensive repairs to the premises.

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26. The Tribunal found that the repairs that the landlord intended to and did carry out were minor and that the [NAME] could have remained living in the premises while they were carried out.

27. The Adjudicator said that there was not much evidence to support a claim that the notice was retaliatory. That said, I accept that it is evidence that the landlord was willing to serve a termination notice without a lawful reason.

28. In this case the landlord does not need a reason to a serve a termination notice. It is for the tenant to prove that the notice was motivated in whole or in part by her complaints concerning the condition of the premises.

29. There is little direct evidence regarding the condition of the premises. As I have said, the issues concerning the curtains appears minor and the evidence falls short of establishing that there is substantial merit in the complaint. I note that the curtains in the premises at the start of the tenancy were not thermally backed and so the landlord cannot be required to replace them with thermally backed curtains. That leaves the issue of the windows.

30. The [NAME] said that the windows are not defective. They are aluminium windows without a thermal break which means that they conduct cold from the outside into the premises. They are not ideal, but they are not defective just because they lack a thermal break. Good curtains would help, but thermally backed curtains are not mandatory. There is no standard for curtains. Where curtains need replacing, they should be replaced with curtains of a similar or better standard.

31. There are no photographs of the windows showing them to be defective. Indeed, there is no evidence at all that they are defective other than the tenant’s claims that they are.

32. The landlord has produced evidence that the premises are out of level and that she had obtained a quotation for relevelling work to be carried to the premises.

33. Taking all things into consideration, I am not satisfied that in giving the termination notice, the landlord has been motivated in whole or in part by the tenant’s complaints. I accept that she intends having the premises relevelled and that she may well sell the premises.

34. I would not go as far as to say that the tenant’s complaints are frivolous or vexatious, but they are not supported by the evidence. Therefore, it is difficult to see why the landlord would feel compelled to serve a termination notice because of the complaints.

35. It follows that the tenant has not proved her claim of retaliation, and her application must be dismissed.

36. There is no good reason to order suppression of the tenant’s name.

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37. I note that the termination date is now 22 days away. I would hope that if the tenant needs more time to find other accommodation and move out in an orderly way that the landlord would be reasonable in accommodating that. I cannot, of course, impose any such requirement.

[NAME]

09 June 2026

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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, or the failure to make an order, where the amount in dispute on appeal is

less than $1000 • a final order to undertake work, or the failure to make an order, where the value of the

work in dispute on appeal is less than $1000.

Enforcement Where the Tribunal made an order about money or [NAME] 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 [NAME].

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: