But NZSIR denied making the alleged representation and opposed the application.
In a recently released decision, tribunal adjudicator Ross Armstrong said there was a direct conflict of evidence between Crespo and NZSIR and all the witnesses were “very sure of themselves” when they gave their evidence.
Ultimately he favoured the landlord and dismissed all of Crespo’s claims, saying he should have got delivery information “straight from the horse’s mouth”, meaning the courier company.
Crespo also tried to claim compensation and exemplary damages for unlawful entry by the landlord to the premises and exemplary damages for late lodgment of the bond.
Crespo signed a one-year fixed-term tenancy agreement that started on April 1, with rent at $5913 per week.
The premises are a high-end residence above Glenorchy-Queenstown Rd about 20 minutes’ drive from the centre of Queenstown.
The tribunal was told the parties spent some time negotiating the terms of the agreement because the tenant had some specific requirements.
The agreement contained some terms specifically agreed by the parties, including provisions for early termination of the tenancy.
Just 10 days into the tenancy, Crespo sent messages to NZSIR saying he was not able to get parcels delivered to the premises.
He also said to the property manager, Nikki Jones, that she had told him that “we 100% wouldn’t have any issues [concerning deliveries]”.
NZSIR, after ascertaining that the courier companies were not delivering to the premises, tried to resolve the problem without success.
Crespo then moved out on May 28.
He claimed NZSIR made a representation to him that the courier companies did deliver to the premises and that the representation was untrue.
He said this misrepresentation entitled him to cancel the tenancy agreement and entitled him to compensation.
In evidence to the tribunal, Crespo’s partner said she was present when Jones confirmed to the tenant that there were deliveries to the premises.
She told the tribunal Jones said the courier companies delivered to steeper streets around Queenstown than the one the premises are on.
NZSIR denies delivery comments
But Jones denied ever speaking about deliveries or being asked about it.
“The tenant referred to the correspondence, and he pointed out that when he said in his correspondence that Ms Jones had confirmed that there were deliveries to the premises, the landlord did not refute it,” Armstrong said.
“He said that there was no denial until the landlord submitted Ms Jones’ statement. He argued that if Ms Jones had not made the representation, she and the landlord would have denied making it at the earliest opportunity.”
When that was put to Jones, she said the landlord was a service provider, and the tenant was one of their VIP clients.
It was not her or NZSIR’s practice to get into a confrontation with their clients, and she said her focus at the time was to try to find a solution to the problem, which she did try to do.
“I was struck by the fact that the landlord’s denial of the representation came so late in the piece. My instinct as a lawyer would have been to deny it immediately if it was untrue, to put it on record and avoid the point that the tenant has made about the delay,” Armstrong said.
“That said, I found Ms Jones to be a straightforward and credible witness, and I can understand why she and the landlord would look to assuage the tenant and try to overcome the problem, rather than trigger a confrontation. My impression is that at that stage, all concerned believed that the problem could be overcome.”
NZSIR made the point that Crespo had raised numerous issues that had to be resolved before he was ready to sign the tenancy agreement, yet there was no reference to deliveries.
The company told the tribunal that if deliveries were of such major importance to the tenant, he would have raised it with the landlord formally, as he did with other issues.
Armstrong said the balance of evidence favoured NZSIR.
“It follows that I do not accept that Ms Jones made the representation concerning deliveries to the premises as alleged or at all.
“Even if I am wrong about that, in my view the highest that the tenant could reasonably put his case is that the evidence is evenly balanced.”
Armstrong said Crespo should have got delivery information “straight from the horse’s mouth”..
NZSIR had also offered to act as a post restante for Crespo’s deliveries with the added service that one of their property managers would deliver them personally to the premises as and when they arrived, but Crespo denied this service, saying he didn’t want NZIS handling his packages.
“In any case, it is not reasonable for the tenant to claim cancellation of the tenancy agreement and compensation when the landlord had offered a perfectly reasonable solution to the delivery problem,” Armstrong said.
“This point also undermines the tenant’s claim to have the right to cancel the agreement.
“The fact that there was a ready solution to the problem means that the effect of the alleged misrepresentation on him would not be substantial and so cancellation would not be available to him.”
Armstrong said the “burden of truth” was on Crespo, who had failed to prove his case; therefore the misrepresentation claim was dismissed.
With regard to lodging the bond, NZSIR told the tribunal the bond was larger than normal and therefore was lodged a few days late. Armstrong accepted this and dismissed the claim.
Brianna McIlraith is a Queenstown-based reporter for Open Justice covering courts in the lower South Island. She has been a journalist since 2018 and has had a strong interest in business and financial journalism.
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