RSS Feed

How to establish a claim at the Tenancy Tribunal?

Monday, November 27, 2017


This week's Tribunal case digest relates to Simpson, Alan Geraint vs K & S Ballantyne Family Trust, JR Kerr Family Trust and other parties.  The way the adjudicator sets out the order serves as a lesson for landlords on presenting and asserting your claim at the Tribunal. 

As our commentary largely relates to process (rather than the application of the Residential Tenancies Act), I will leave you to read about the facts of the case here. At the outset, it suffices to point out that the case concerns claims and counterclaims relating to carpet cleaning, breach of quiet enjoyment, and damage to motor vehicle.  Though the outcome (*spoiler alert*) is wholly unsatisfying for both parties, the adjudicator takes the opportunity to explain the process of making a successful claim thoroughly.  

Let's consider the adjudicator's words and break down the different elements needed for a successful claim at the Tenancy Tribunal. 

1. Threshold of proof 

There are two elements to a successful claim: 

  1. The burden/onus of proof: Which rests on the claimant (e.g. that would be you if you bring a claim for rent arrears against your tenant to the Tribunal); and 
  2. The standard of proof: Which in the case of Tribunal cases refer to the civil standard of proof that is on balance of probability (i.e. answering the question Is it more likely than not that the alleged events happened?

To borrow the language of Adjudicator Ward in Simpson, "(You must) by evidence(,) meet or exceed the threshold of proof" in order for your claim to be successful.  

The burden of proof is easy enough.  If you are the one asserting a claim, then it falls on you to furnish evidence to support that claim.  

Adjudicator Ward's commentary on the standard of proof is slightly more nuanced.  While it has always been the case that the standard of proof at the Tenancy Tribunal is that of a civil standard, the more serious the allegation the higher more cogent level of evidence is required to meet the standard.  In Simpson, the tenant alleges assault.  While not sidelining the assault claim as a criminal matter, Adjudicator Ward is prepared to listen to the claim so long as the tenant discharges the higher standard of proof.  

2. The credibility of evidence 

Tenancy adjudicators are often faced with conflicting accounts of what actually happened (especially in claim-counterclaim hearings).  When that happens, there will be a necessary examination of the credibility/quality of evidence from both sides. 

Credibility speaks to the trustworthiness of the parties' accounts which is less to do with presentation demeanour and confidence and more to do with these three essential requirements: 

  1. That the adjudicator intellectually and intuitively judges the testimony to be trustworthy;
  2. The evidence must be reasonable with no probable defects such as inconsistency or improbability; 
  3. The evidence must be consistent and supported by other acceptable evidence.
"Evidence which only satisfies the first two bullet points would only be plausible.  The third bullet point must be met for belief." 

The outcome of Simpson rests on the fact that neither party put forward credible evidence to support their claims and thus the threshold of proof remains out of reach of the adjudicator to award in anyone's favour.  

3. Other observations and learnings from Simpson 

Apart from mapping out the elements of the threshold of proof we are all under as claimants to the Tenancy Tribunal, note the following: 

  • On exit carpet cleaning: Tenancy agreement clauses that require tenants to commercially clean the carpets are unenforceable.  The Residential Tenancies Act requires tenants to leave properties reasonably clean and tidy not "pristine or even to a standard that the landlord could re-let immediately".  You cannot require your tenant to do that which is more than what is required by the RTA;
  • On verbal agreement/variations: If you verbally agree to vary an existing Tenancy Agreement and wish to submit the varied agreement as evidence at the Tribunal then the onus is on you to prove that such a variation took place; 
  • On assault/breach of quiet enjoyment: "It is important not to allow a simple clash of personalities to become the sole basis for a claim for breach of this type. To establish abuse or threatening behaviour the tenants must prove more than lively and colourful debate."
The next time you find yourself in the unfortunate position of being a party to a Tribunal dispute, use this breakdown summary to guide your case preparation and presentation. 

Recent Posts


CoreLogic Tribunal case study DTI clnz equity covid-19 Standards New Zealand ring-fencing landlord airbnb meth trademe nzpif wealth creation Jeff Bezos Guest blog p lab LIM legal productivity Must knows mortgage market Level 4 twg report scotney williams sublease holiday house anz lvr tenancy services watercare unitary plan Market report cash-flow letting fee RBNZ damage income yield How to auckland heater warm up new zealand house prices tenancy issues advice asbestos government minor dwelling insulation khh cat data security HHS auckland council reserve bank speculator buying Landlording banking Holler Property (Relationships) Act CCC barfoot and thompson housing affordability RTAA 2019 rta reform parry v inglis election2020 Sponsored post return negotiation wins fixed-term tenancy Gluckman Editor's Choice education HSWA investment strategy off the plan financial advisers act ask an expert tenancy tribunal Question and answer worksafe business positive cash flow Must know shower dome relationship Q&A rental market trespass skill shortage interest rates bond form boarding house beginner investor first home buying rent arrears property personal growth insurance buyer's agent development ird recycling equity finance meth contamination Investor story robert kiyosaki heating HHGA water bill tax sale and purchase renovation market rent subdivision election 2017 bad tenant gluckman report investor property cycle maintenance short-term rental debt enforcement buying rules housing bubble initio rent property value smoke alarm interest only rta bond tenant building management trust TCIT structure ventilation winz cgt inspection Kris Pedersen Mortgages and Insurance capital gain opes partners Case study sale and purchas partners property maintenance privacy rental wof television principal and interest mindset rent increase extractor fan Investment tip ocr warren buffett property management letting termination


Introducing Our Partners
Principal Sponsor - Kris Pedersen Mortgages & Insurance logo Gold Sponsor - Barfoot & Thompson logo Gold Sponsor - CoreLogic logo Property Apprentice logo Keith Hay Homes logo The Insulation Warehouse logo The Renovation Team logo The New Zealand Property Investors' Federation logo
09 360 2376

The Tenancy Practice Service and TPS Credit Control work closely with the Auckland Property Investors' Association. Our vision of bringing helpful resources, documents and high quality services to Auckland Property Investors and Property Managers is shared by APIA, so its a partnership that works well. 

The Auckland Property Investors' Association is a great organisation for those who want access to advice and information from a range of industry experts and partners. 

Mathieu Holt- Managing Director, The Tenancy Practice Service & TPS Credit Control
Through the Association I found the channels and methods to fund the purchase of property I never dreamed about. Grant Brown

All round it has been one of those things Neil and I felt was really worthwhile belonging to. We have learned so much it has just built our confidence in what we are doing.

Janice Bieleski
I read two articles in the monthly magazine that saved me over $5,000. That is my membership fee for the next 26 years and I am sure I will learn a whole lot more! John Duncan
Fantastic organisation. The networking opportunities are brilliant and provide us with information and opportunities that cannot be obtained anywhere else. We learn something new at every meeting and we've been in this game for nearly 20 years. Pauline and Gyanen Kumar

I find the information obtained from various APIA meetings very useful in guiding my own property investment and rental management.  I also enjoy the networking opportunities with like-minded investors.  I am inspired by other investors’ success and find the more experiences and knowledge that I share with others, the more confident I become.  

Thanks to all APIA event organizers and administrators for your brilliant work. 

Stella Shao

I like talking to people and learning from their experience because it gives me the confidence to invest well. I think it is a knowledge thing. I now know I am doing things the right way.

Stephen Weatherall

My APIA membership has become a total success.

Every time I attend a monthly or regional meeting I come away with so many useful and positive tips that have added value to my property investments and management.

Not only that, the website is a great place for practical advice and useful information. It has now evolved into an important resource for my business.

Talk about value for money! The discounts I have been getting at Bunnings when I present my APIA membership card have more than paid for my annual subscription!

Tim Duffett, Plan A Investments Limited