[2019] NZTT Auckland 4213048
TENANCY TRIBUNAL AT Auckland

APPLICANT:

Gourav Ahuja and Isha Isha
Tenants

RESPONDENT:

Barfoot & Thompson Limited
Landlord

TENANCY ADDRESS: 404B Ellerslie-Panmure Highway, Mount Wellington,
Auckland 1060

ORDER
1. The Bond Centre is to pay the bond of $2,400.00 (5015374-009) to Barfoot &
Thompson Limited for rent less compensation as set out in the table below.
2. It is declared that the term of the fixed-term tenancy of Gourav Ahuja and Isha
Isha at 404B Ellerslie-Panmure Highway, Mount Wellington, Auckland is ended
as at the end of 30 October 2019.

Description
Rent due to 30 October 2019
Compensation: Refund portion release fee
Total award
Net award to landlord
Bond to be paid to landlord

Landlord
$2,657.00
$2,657.00
$2,400.00
$2,400.00

Tenant
$257.00
$257.00

Reasons:
1. The tenants attended the hearing in person. Anya Petrova attended for the
landlord.
2. The tenants have applied for reduction of the fixed-term tenancy originally due
to end on 4 July 2020.
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 3. The Tribunal may reduce a fixed term tenancy where:
a. there has been an unforeseen change in the applicant’s circumstances;
b. there would be severe hardship to the applicant if the term is not reduced;
and
c. the applicant’s hardship would be greater than the hardship to the other
party if the term is reduced.
(see s 66(1) of the Residential Tenancies Act 1986 (RTA))
4. On 13 June 2019, the tenants signed a tenancy agreement for the premises for
a fixed term ending 4 July 2019. However, a couple of months later, after being
prompted by a relative, the tenants decided to purchase their first home. They
therefore urgently wanted to end the fixed-term tenancy so they could move to
their new home and pay just their mortgage, and avoid paying rent.
5. Barfoots agreed to assist with early termination but required an $805.00 breakfee for its costs in obtaining a new tenant. It confirmed that the tenant would be
liable for the loss of any rental incurred due to the early termination due to the
premises being untenanted or a lesser rental obtained.
Unforeseen change in the applicant’s circumstances?
6. There was clearly a change in the tenants’ circumstances. The tenants
contracted to buy a house and it is possible that decision threatened severe
financial hardship. However, the change was entirely foreseeable and
avoidable.1 The tenants purchased the house in full knowledge that they were
bound to rent the premises until 4 July 2020. It was the tenants themselves who
changed their circumstances. In my view, s 66 is not intended to capture
tenants’ changes of circumstances where the tenants have simply decided it
would be better for them to discard the fixed-term tenancy in favour of different
living circumstances. Rather, s 66 is intended to capture changes to tenants’
circumstances which are unavoidable. If it were otherwise, tenants could simply
fdecide that a different tenancy was more desirable, commit themselves to the
new tenancy and then rely on s 66 to avoid their obligations under the original
tenancy.
7. The tenants argued they were inadequately informed that if they wished to
break the lease they would not only have to pay a break fee, but also any deficit
in rent the landlord incurred in trying to re-tenant the premises. The tenancy
agreement states the term of the tenancy is fixed. It also states the owner may
charge reasonable costs incurred in consenting to a lease break. I accept the
tenants did not appreciate the detail of their obligations, but the agreement is
clear: the tenants were bound to pay rent for the full period and would be liable

1

See Bond v Tang NZTT 25 August 2019 for a discussion on the meaning of “foreseeable”.

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 for the owner’s reasonable if a break were consented to. Those terms do not
suggest the tenants would not be liable for rent while the fixed tenancy was in
effect.
8. The tenants suggest the letting agent told them if they broke the lease they
would only have to pay a break fee. I consider it more likely that the letting
agent told them about the break fee but simply did not elaborate that they would
also have an obligation to pay rent. That obligation is clear because it is the
essence of a fixed-term tenancy agreement.

Did landlord breach the agreement in respect to attempting to re-let the premises
9. The tenants emailed Barfoots about their buying a house on on 29 August
2019.
10. The (unsigned) application for early release from a fixed term tenancy form that
was sent to the tenants by Tracy Watts, a Barfoots manager, on 30 August
2019 states:
The tenants agree to pay Barfoot & Thompson Ltd the sum of $700 + GST being a
fee for the time involved in a telephone attendance with the tenants and posting /
emailing / faxing out the application, receiving, perusing, processing the tenants
application, contacting the owner for instructions, receiving the owners instructions
contacting the tenants again to arrange an appointment to sign, attending with tenant
on signing this agreement, conducting an exit inspection, and completing the
inspection report and attending to processing the bond and placing further
advertising, and paying the account.
The tenants understand that they cannot guarantee any replacement teants will agree
to pay the same level of rent as they are currently paying. The tenants agree that they
will be liable, at the conclusion of the fixed term for any difference between the
agreed rate of rent they are currently paying in terms of the agreement and the rent
payable by the replacement tenants… and any shortfall in rental which might occur
due to non-occupancy…

11. On 3 September 2019, the tenants told Barfoots that it “may be able to start the
new tenancy by 29 of September 2019”. On 26 September 2019, the tenants
told Barfoots they would be moving out on 29 November 2019.
12. On 3 September 2019, Amy Chiu of Barfoots, began marketing the premises.
13. The tenants are scathing about Barfoot’s early efforts to find new tenants. In an
email to Barfoots dated 14 October 2019, they complained, “But when it was
time to paly your part to let the property your Letting Manager didn’t perform her
obligated responsibilities. I was not expecting…unprofessional and ignorant
behaviour at such a time.”
14. The tenants refer to several inadequacies:

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 a. An advertisement on Trade-me mentioned only one allocated car park
when it had three.
b. The pictures posted of the interior were incorrect, depicting a superior fitout
to the premises.
c. The letting agent arranged for two potential tenants to attend the premises
for viewing on 5 September 2019 without giving the tenants notice. The
letting agent was late to arrive meaning the potential tenants left. On 7
September 2019, the tenants required the letting agent to give at least 5-6
hours’ notice of visits to view, but the letting agent did the same thing with
another potential tenant on 12 September 2019.
d. No set viewing times were advertised. The Trade-me website did not have
a link to enable prospective tenants to book a viewing time.
e. There was a lack of communication until the tenants approached the
branch manager on 17 September 2019.
15. Ms Petrova said the understatement of allocated carparks was due to difficulties
with the Trade-me template. The premises were also advertised on other
platforms such as the Barfoots’ own website and Facebook. She said that
prospective tenants could book viewings through the Barfoots website or could
text, email, or phone Barfoots to make appointments to view, which were also
effective ways to arrange viewings.
16. The superior photographs would have had a measurable impact on potential
tenants. If anything, more potential tenants would have been interested in the
property. It is unlikely, that disappointment at the reality versus the photographs
would have deterred a genuine prospective tenant.
17. On 13 September 2019, the tenants contacted Ms Chiu who advised she was
going on holiday and someone else would attend to the re-tenanting attempts.
However, by 16 September the tenants considered inadequate progress was
being made.
18. On 17 September 2019, some two weeks after the premises was first
marketed, the tenants spoke to Barfoots’ branch manager, John Simpson, to
express their concerns the premises were not being marketed effectively. Mr
Simpson personally progressed the matter as requested by the tenants. The
advertisement on Trade-me was amended to refer to three carparks and set
viewing times on 21 November and 22 November were added.
19. On 22 September 2019, Mr Simpson reported that nine people had been
through the premises on the weekend. On 24 September, Mr Simpson texted
that there had been no resulting applications, but requested a viewing time for
the following day.
20. Ms Petrova says that a lot of effort was put into obtaining tenants for the
premises, but that rentals were generally slow at the time. She says she herself
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 negotiated strenuously with the new
commencement date to 30 October 2019.

tenant

to

bring

forward

their

21. I consider that Barfoots did make reasonable attempts to find new tenants in a
timely way. It is true a mistake was made on Trade-me about the number of car
parks the premises had and set viewing times would have been better.
However, Barfoots made genuine efforts as soon as it was told on 3 September
of the date the premises were available. It placed advertisements the same day
and had potential tenants visiting the premises by 5 September. Then, on 17
September, the branch manager heeded the tenants’ criticisms and fixed the
advertising area and arranged for set viewing times. It is not appropriate to
apply a gold standard test to Barfoots’ efforts to re-let the property. The
standard should be one of reasonableness. If there were issues to begin with,
that must be balanced against Barfoots professional steps to remedy those
issues from 17 September. Overall, I consider that Barfoots efforts were
reasonable. Therefore, Barfoots did not breach of the break-lease agreement to
try to re-let the premises.
22. I have, however, decided to order that the landlord pay compensation of
$257.00 because although I have found Barfoots were not in breach of the
reletting contract, the letting agent arranged for entry without proper notice on
several occasions. I do that by way of reduction of the release fee. That order
means the tenants do not have to pay Barfoots anything in addition to the bond,
which will be released to Barfoots to cover the rent due up to 30 October 2019.

Other
23. Ms Petrova says the new tenants are paying $10.00 per week less rent that the
tenants paid, but that Barfoots will not be trying to recover the loss from the
tenants. She also said that Barfoots would not seek to recover from the tenants
if the premises had to be re-let again with further rent loss occurring. So that the
tenants have certainty about that, I order that the tenancy ends as at 30
October 2019.
24. The bond should be paid out Barfoots.

R Kee
19 December 2019
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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 $200. 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 0800 233 222 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/enforcingdecisions or phone Tenancy Services on 0800 836 262.
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 0800 836 262
ranei.
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 0800 836 262.

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