What was Tenancy Tribunal case 4325875 about?

The tribunal order states: The Tribunal orders continued name suppression to apply for both parties.

How much money was awarded in case 4325875?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4325875?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4325875?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11599133-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4325875 about?

The tribunal order states: The Tribunal orders continued name suppression to apply for both parties.

How much money was awarded in case 4325875?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4325875?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4325875?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11599133-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4325875 — Exemplary damages

Order

The Tribunal orders continued name suppression to apply for both parties.
The landlord is to pay the tenant the sum of $350.00 immediately, being costs.

Reasons

The only remaining issue for the Tribunal to determine is a claim for costs. The claim relates to legal representation for the tenant, for a rehearing which only considered the landlord’s claim for exemplary damages on the basis of the tenant allegedly exceeding the maximum permissible occupants in the premises. In a decision dated 21 June 2023, the Tribunal dismissed that application, meaning the tenant had succeeded in defending the claim against her. The tenant has applied for costs in relation to that proceeding, which is the subject of this decision.

BACKGROUND

The background in this case is now very extensive, unusually complicated for claims in this jurisdiction. We summarise the relevant background to the current costs claim as follows. We emphasise this is a focused background, and does not consider the wider history of the dispute.
The tenant in this case is [The tenant/s]. The landlord was [The landlord/s], but unfortunately, [The landlord/s] passed away on 6 October 2023.
The landlord gave notice ending the tenancy, the last day was to be 20 June 2021.
Prior to the termination date, the tenant filed extensive claims against the landlord, seeking an order of $100,000.00, on a range of grounds, and also an application to declare the termination notice retaliatory and to have that notice set aside.
A hearing was convened before Tenancy Adjudicator Harris. The adjudicator issued an interim decision on 8 June 2021 dismissing the claim of a retaliatory termination notice. The other claims where then adjourned to a later hearing date.
The tenancy then ended on 20 June 2021, by operation of the termination notice from the landlord.
On 12 January 2022 the landlord filed claims against the tenant for various matters, including a claim for exemplary damages for exceeding the maximum number of occupants in the premises.
On 10 October 2022 Adjudicator Harris issued a decision, making various orders on both the landlord and tenant claims. But that included an order that the tenant pay exemplary damages of $500.00 for exceeding the maximum permitted number of tenants. The tenant was legally represented by [The tenant’s representative] at that hearing. I understand [The tenant’s representative]’s attendance was funded by Legal Aid.
The tenant applied for a rehearing of the 10 October 2022 order.
On 21 December 2022, Adjudicator Harris approved a rehearing, but only in part. The only matter for which the rehearing was granted, related to the Tribunal’s finding that the tenant exceeded the number of occupants in the premises. What that meant, was that the Tribunal would reconsider the landlord’s exemplary damages claim afresh, on that ground only.
Hearings in relation to the rehearing of the exemplary damages claim were scheduled and adjourned. I note adjournment minutes from Adjudicator Barnett from 17 February 2023, and 4 April 2023. What is relevant in those, is that the Tribunal had recognised [The tenant’s representative] as the continuing legal representative for the tenant. Mr Barnett states in part in his 17 February 2023 order: The landlord is to provide any documentary evidence they seek to rely on to prove their claim that the tenant exceeded the maximum number of occupants at the property, to the tenant and the tenant’s Counsel directly, and to the Tribunal...
The approved rehearing of the occupancy claim was scheduled before a different adjudicator, Ms Northwood. Ms Northwood convened a hearing, then issued a decision dated 21 June 2023. Ms Northwood concluded that the landlord was aware of the number of occupants in the premises, so dismissed the landlord’s exemplary damages claim on the basis that no breach was established. 1
On 27 June 2023 the landlord applied for a rehearing in relation to the 21 June 2023 order.
On 9 August 2023, the landlord’s application for rehearing was dismissed.
On 18 October 2023, [The tenant’s representative] on behalf of the tenant, applied for costs, stating in his memorandum: Finally, [The tenant/s] seeks an order for costs in respect of her successful application for a rehearing (as she was represented by a lawyer). She seeks costs of $350. [The tenant/s] have asked the landlord to agree on costs, but no response has been received. [The tenant/s] are legally aided, and any costs received will be paid to legal aid.
On 17 May 2024 the Tribunal (Ms Northwood) issued a further order doing the following: a. Recognising that the landlord had not earlier been ordered to refund the $500 of exemplary damages, so making an immediate order for that payment. b. Setting timetabling for the provision of submissions on the claim for costs of $350.00.
On 21 June 2024, Ms Northwood issued a costs decision ordering the landlord to pay the claimed costs of $350.00. Ms Northwood believed at the time that no submissions had been filed by the parties, as was directed by her on 17 May 2024. Ms Northwood relied on the claim filed by [The tenant’s representative] on 18 October 2023.
On 4 July 2024 Ms Northwood issued a decision which did the following: a. Recalled the order from 21 June 2024 ordering legal fees. Ms Northwood confirmed that she had overlooked an extension that had been granted for the filing of the costs submissions, meaning she had issued the costs decision before the date had passed for submissions to be filed. b. Issuing updated directions for the filing of submissions on the costs claim. 1 As will be discussed below, Ms Northwood did not expressly order a refund of the previously ordered $500.00, that was ordered in a later order in 2024.
Ms Northwood explained the reason for her order was as follows:
Unfortunately, the matter was scheduled by Tenancy Services for a hearing on the papers on 21 June 2024. I overlooked the extension I had granted and issued the Order in favour of the tenant. [The tenant/s] contacted Tenancy Services and advised that she has further legal bills to claim and that she needed more time to provide the documentation to the Tribunal.
I apologise to [The tenant/s] for overlooking the extension that I had granted her.
I am recalling my Order dated 21 June 2024 to allow both parties to file their submissions and supporting documentation.
A further hearing is not required as I will deal with this on the papers...
The landlord applied for a rehearing of the 4 July 2024 order.
It is the case that the Tribunal had directed a hearing in person be convened given the extent of the dispute as we understood it to be. However the parties confirmed that the only remaining issue was costs, and it was agreed that should be considered on the papers.
On 27 November 2024, the Tribunal issued directions. In short, the Tribunal confirmed that the costs claim would be determined on the papers, and various directions for that were made. Those directions were as follows:

DIRECTIONS OF THE TRIBUNAL

The hearing scheduled for [Event location suppressed] on 11 December 2024 is cancelled, the only outstanding issue to be adjudicated, relating to costs, is to be considered on the papers.
A full-copy of the documentation file is to be provided to the tenant, who will have five days to notify the Tribunal if there is medical evidence on the file she wishes to have withheld from the landlord.
Once that response from the tenant is received, or 5 days pass, then the Tribunal will confirm which documents are to be removed from the file if any, and the full file is then to be sent to the Landlord’s representative.
Any submissions are to be filed on the following timetabling. a. Any further written submission on the costs claim is to be filed by the tenant no later than 20 December 2024. b. Any further written submission on the costs claim is to be filed by the landlord no later than 20 January 2024. c. Any final written submission on the costs claim is to be filed by the tenant no later than 20 February 2024. d. The Tribunal will consider the matter closed on receipt of the tenant’s concluding submission or 20 February 2024, whichever is sooner. We will then issue a cost order on the papers.

TENANTS CASE

The tenants submissions can be summarised as follows: a. Representation costs are claimed for the rehearing, as the tenant was legally aided and the costs are to be refunded to the legal services agency. b. None of the fees claimed by [The tenant’s representative] relate to the appeal. c. The claim of $350.00 was only for filing the rehearing application, the later costs were $3,610.00. d. Because the tenant was represented by counsel at the hearing, those costs should be ordered. e. Representation for the rehearing was approved by the Tribunal. f. While the matter may not have been complex, in the circumstances the tenant required assistance of a representative.

LANDLORDS CASE

The landlord opposes the claim for costs, and submits: a. None of the criteria in section 93 of the RTA applied to permit representation. b. The landlord had not consented to a representative of the tenant. c. The Tribunal did not grant leave for representation (s93(3)). d. The case was not complex, so as to require counsel, and neither was there any significant disparity between the parties. e. Having counsel appear at the hearing was sufficient reward given counsel was not otherwise able to attend. f. Any order should be limited to the original claim of $350.00, because that was the subject of the original claim and submissions originally filed.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. Because it is [The tenant/s] seeking the costs order, this requirement sits with her.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Law in relation to costs claims
Section 102 of the Residential Tenancies Act 1986 (RTA) relates to costs. Section 102(2) confirms that the Tribunal “may make an order” where “any of the parties was presented by counsel”. Subsection 3 confirms that an order may be made to a party for “the reasonable costs of that other party in connection with the proceedings.”
It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party.
What is considered to be ‘reasonable costs’ will depend on a range of factors. In Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 Justice McGechan, in his reserved costs decision, held that: ...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable contribution’ earlier determined falls within a middle range, say 40% to 70%,there is a feeling of some comfort...
The High Court confirmed that when a party is represented by counsel, that the following factors are relevant to be considered when assessing costs: a. The length of the hearing. b. The sum of money involved. c. The legal and factual complexity. d. Whether the argument lacking substance was advanced, and e. The degree of success achieved by the parties.
Similarly in the judgment of David Blair Ltd v Hawkins Arms and Engineering Ltd (No 2) [1988] 1 PRNZ 162, Tompkins J considered a costs issue where the party was represented, and held: In addition to the length of the hearing, matters such as the amount of money involved, the importance either to the parties or generally of the issues, monetary or non monetary, the legal and factual complexities, the amount of time required for effective preparation, the number and complexity of interlocutory applications and the likely or actual solicitor and client costs incurred, may, in appropriate cases, be relevant to the exercise of the discretion.

ANALYSIS

The question to be determined is an application for costs filed by the tenant.
The original application for costs was $350.00, and that was filed by [The tenant’s representative] on 18 October 2023. While the tenant states that the claim for costs is $3,610.00, we have seen no evidence from [The tenant’s representative] supporting that amount as being charged, or that that amount related only to the rehearing dispute resulting in the 21 June 2023 order.
[The landlord’s representative] submitted that there was no basis for [The tenant’s representative] to have been appointed counsel in the rehearing dispute, as the matter in dispute was by then only a claim for exemplary damages for exceeding the number of occupants, which was for a potential maximum below the tenants’ right to appoint a representative.
It is the case that a party only has a right to representation in the Tenancy Tribunal, when the claim is over $6,000.00 in value (see section 93(2)(b)). Of course the original claims before the Tribunal from the tenant, before Adjudicator Harris, were well over that amount. Therefore as a statutory right, [The tenant/s] were entitled to be represented by counsel.
In our view it would be arbitrary to accept a right of representation originally, but then once the rehearing was granted, and the remaining dispute was limited to occupancy only, to withdraw that right.
We observe here that the outstanding dispute is only in relation to costs claimed of $3,610.00. That of course is below the level at which representation is allowed. Notwithstanding that, the landlord has continued to be represented by counsel for this outstanding claim, and we have recognised [The landlord’s representative] as counsel. It would also be arbitrary for the Tribunal to recognise [The landlord’s representative] as counsel, but then to refuse to recognise [The tenant’s representative] in similar circumstances.
Because [The tenant/s] were successful in the dispute as it relates to exceeding the maximum number of occupants, she is entitled to an order of costs.
We have determined that costs of $350.00 should be ordered, that is the amount sought by [The tenant’s representative]. Taking into account the maximum level of exemplary damages that could be ordered for breaching the occupancy restrictions is $1,000.00, incurring $350.00 of representation costs would be reasonable in that context. We consider that amount should be ordered in full.
However, we do not conclude there is a basis to order a higher amount for these reasons.
Firstly, there is no evidence from [The tenant’s representative] supporting that the higher amount [The tenant/s] have claimed was in fact costs only in relation to the limited hearing around occupancy.
Secondly, incurring costs of $3,610.00 to defend a claim that at worst would be less than $1,000.00 could not be reasonable 2 . Taking the factors set out in Holden and David Blair Limited above, we are unlikely to have concluded an order over $350.00 would be indicated in this case anyway.

NAME SUPPRESSION

The Tribunal orders continued name suppression to apply for both parties as previously ordered. J Northwood and R Woodhouse 2 In fact the amount originally ordered was $500.00, it would be unlikely the tenant would face any higher order than that. 19 March 2025

Tenancy Tribunal case 4325875 — Exemplary damages

Tenancy Tribunal case 4325875 — Exemplary damages

Order

Reasons

BACKGROUND

DIRECTIONS OF THE TRIBUNAL

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Reduce avoidable tribunal risk with proper tenant checks.

Order

Reasons

BACKGROUND

DIRECTIONS OF THE TRIBUNAL

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Reduce avoidable tribunal risk with proper tenant checks.