Published tribunal order
Tenancy Tribunal case 4451328 — Exemplary damages at 69 Roberts Avenue, Bayswater, Auckland 0622
Decided 19 Feb 2025 · Published 19 Feb 2025 · Application 4451328
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
- must pay immediately as follows.
Reasons
- Both parties attended the hearing. Each was represented by counsel. Claims Possession
- In its cross application 4835461 the landlord sought an order for possession of the premises on the grounds that the tenancy had been validly ended by a notice of termination issued under s.53B Residential Tenancies Act 1986 (“RTA”).
- Both counsel confirm that agreement has been reached for the tenant to move to an alternative address and a possession order is no longer sought or required. Tenant’s Claims
- The tenant seeks compensation and/ or exemplary damages under 10 separate heads of claim, set out in Exhibit 1 to the submissions of counsel for the tenant dated 25 October 2024.
- Those heads of claim are as follows; •that the tenant was exposed to contamination from lead based paint; • that there was a non-compliant firewall between the premises and the adjoining property, also causing noise disturbance; • that the tenant was impacted by a vermin infestation at the premises; • that the roof structure at the premises was unsafe; • that the roofing and ceilings at the premises were inadequate and unsafe; • that the kitchen was not provided or maintained to an adequate standard; • that the premises failed to comply with Healthy Home standards through lack of a vapour barrier, under floor insulation, ceiling insulation, interior environment and bathroom extraction; • that the paths, driveway, stormwater drains, spouting and back steps were not adequately maintained; • that the tenant was exposed to possible asbestos contamination and that the boundary to the premises was not secure; • that the tenant’s right to quiet enjoyment of the premises was breached. Applicable legislation
- The tenant’s claims allege a breach of the landlord's obligations under the following provisions of the RTA: • Section 45(1A) • Section 45 (1AB) • Section 48(4)(c) • Section 38(3)
- It is helpful to begin by setting out those provisions of the RTA and the principles to be applied in assessing the tenant’s claims. Landlord’s obligations under s.45(1)
- Section 45(1) requires that: “The landlord shall— .... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and ..... (bb) comply with the healthy homes standards; and..... (bd) comply with all requirements in respect of contaminants imposed on the landlord by regulations made under section 138C(3)(c); and (c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and ... (e) take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.”
- By s. 45(1A) failure to comply with any of those obligations is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded. Contamination of premises
- Section 45(1AA) provides that: “Subsection (1AAB) applies to a landlord of premises if— (a) the landlord knows that tests carried out in accordance with prescribed methods have established that the premises are contaminated; and (b) the premises have not been decontaminated in accordance with the relevant prescribed decontamination process. (1AAB) If this subsection applies—......... (b) and the tenant has already been provided with the premises, the landlord may continue to provide the premises to the tenant (under that tenancy or any extension or renewal of that tenancy) only if the premises are being decontaminated in accordance with a relevant prescribed decontamination process and any rules prescribed under section 138C(3)(f)”
- Breach of that obligation is an unlawful act under s.45(1AB) for which exemplary damages of up to $4,00.00 may be awarded. Unlawful entry
- Section 48(1) RTA provides that: “The landlord shall not enter the premises during the currency of the tenancy agreement, except—(a) with the consent of the tenant freely given at, or immediately before, the time of entry; or (b) in any of the circumstances described in subsections (2) to (3).”
- Breach of that obligation is an unlawful act for which exemplary damages of up to $1,500.00 may be awarded (s.48(4)(a)). Right to Quiet enjoyment
- Under s.38(1): “The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord.”
- Breach of that obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages of up to $3,000.00 may be awarded. Awards Compensation
- If it is proved that the landlord breached it’s obligations causing the tenant loss, whether financial or in terms of a lessening of the tenant’s use and enjoyment of the premises, damages may be awarded to compensate for that loss. Exemplary Damages
- If the landlord’s breach constitutes an unlawful act, as defined in the RTA and is committed intentionally, exemplary damages may be awarded up to the maximum sum specified in Schedule 1A RTA, having regard to s.109(3) which provides that: “If, on an application under subsection (1)..., the Tribunal is satisfied that the person against whom the order is sought committed the unlawful act intentionally, and that, having regard to— (a) the intent of that person in committing the unlawful act; and (b) the effect of the unlawful act; and (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest,— it would be just to require the person against whom the order is sought to pay a sum in the nature of exemplary damages, the Tribunal may make an order accordingly.”
- The purpose of an award of exemplary damages is not to provide compensation the other party but to punish the unlawful act.
- For the claims brought by the tenant in this application, s.109(2) does not allow an application for exemplary damages to be brought later than 12 months after the date of commission of the unlawful act.
- The RTA clearly intends that a party should not suffer more than one punitive sanction for the same conduct (see ss. 109E and 137A).
- Here, the tenant alleges multiple discreet breaches of the landlord’s obligations under s.45(1). Different individual breaches are alleged but if proved, all constitute an unlawful act under s.45(1A).
- At conclusion of the hearing I asked counsel for submissions addressing the extent to which exemplary damages may be awarded in such circumstances.
- Counsel for the tenant submits that: “.....distinct awards can be made for the landlord failing to meet its obligations in respect of cleanliness, maintenance, building and health and safety requirements. Some of the claims are distinct and not linked. It is submitted that there is no authority that dictates that there cannot be separate awards for exemplary damages for each of these breaches.”
- Counsel for the landlord notes the decision of the District Court in Gardiner v Upland Bay Investments Limited 1 where the Court noted: “[28] Mr Opie also submitted, as noted above, that individual awards of exemplary damages should be made for each individual breach, in effect arguing that the statutory maximums as set out in Schedule 1A to the Act should apply not globally, but in respect to each individual breach. Accordingly, Mr Opie sought an award of exemplary damages of $1,000 (the statutory maximum) for Upland Bay's failure to lodge the bond, and $1,000 in exemplary damages for its refusal or omission to issue a receipt for the bond. In respect to the various breaches of building standards or health and safety requirements, he sought a separate award in respect to each failure, of $1,000 for each individual breach. [29] However, Schedule 1A is explicit, when setting the maximum amount awardable in relation to both s 19 and s 45 breaches, that the maximum applied to the breach of duties (plural), in the case of s 19 and the landlord's failure to meet obligations (also plural) in respect of s 45. The plural forms as adopted by 1 DC Wellington CIV-2014-085-13, 27 August 2014 the legislature in both instances indicate that the maximums are in respect to a global or total award for all breaches under the respective sections.”
- Applying the approach required by Gardiner here, I find that if the grounds are made out, the Tribunal is able to award exemplary damages, up to the maximum specified in schedule 1A for each unlawful act committed. In the case of s.45(1A) the unlawful act is constituted by breaches (plural) of the relevant subsections of s.45(1). Accordingly, while the extent of those breaches may be taken into account in assessing the appropriate award, a separate award is not available for each discrete breach of s.45(1). Analysis
- This tenancy began on 10 February 2014 at a rent of $142.00 per week. Rent increased to $201.00 per week in February 2024.
- The premises is an older home having been built in 1953. It is a twin unit.
- From the beginning of the tenancy, the tenant has had concerns about the state of repair of the premises, leading to his having lodged with the landlord many complaints and numerous notices to remedy.
- The correspondence trail provided in the bundle of evidence gives a comprehensive record what the tenant invites me to interpret as the landlord’s sluggish and inept responses to his legitimate concerns about the state of the premises and what the landlord invites me to interpret as the tenants ad hoc, combative and often obstructive approach to dealing with maintenance and repair issues at the premises.
- It is not helpful or necessary to traverse in detail the interactions between the parties through the course of what has been a lengthy and difficult relationship, except where necessary for the determinations the Tribunal is required to make.
- After ongoing complaints, in September 2022 the landlord commissioned a comprehensive assessment of the state of the premises. That assessment is recorded in a report from a [redacted] (“report”).
- The [report] notes and photographically records numerous issues with the state of the premises.
- It confirms that at the date of the report, the premises was not maintained to a reasonable standard and that significant previous repair/ refurbishment work had not been completed to a satisfactory standard. It notes: •the kitchen installed during the tenancy was not fit for purpose or adequately installed •a previous vent hole in the ceiling was left un patched and repainted •wall damage was not repaired before installation of new cabinetry •poor preparation and painting work had been carried out •window joinery had been painted with the window shut which peeled off when the window was opened •ceiling insulation had not been properly installed •ducting was not sealed •alterations in the roof cavity appeared to be without approval •roof trussing was inadequate •a fire retardant seal on top of the firewall to the adjoining property was missing •underfloor insulation was inadequately installed and in poor repair •leaks were identified •questions raised about the adequacy of the stove wiring and hot water cylinder •paths and driveway did not adequately drain water and had cracks creating a trip hazard Many other improvement recommendations were noted.
- The landlord attempted to engage with the tenant to develop a repair plan based on the [report]. The landlord and the tenant disagreed. The tenant did not allow the landlord entry on 1 December 2022 after due notice had been given, for the most urgent work to be carried out.
- The tenant says that at an initial meeting assurances were given about aspects of the intended work that were not reflected in the Repair Plan when he managed to get a copy of it. The landlord says that the tenant was being obstructive, questioning the [report] and making additional and unjustified demands.
- Eventually a repair plan was agreed upon and the Tribunal’s Order dated 16 May 2024 ordered that, “...the parties are agreed that repair/ remediation work will be carried out to the premises as detailed in the document titled “Repair Plan”
- That Order also records, “It is agreed that the work will commence on 21 May 2024”. It is symptomatic of this tenancy that at that date of this hearing the work had still not started because arrangements for the tenant to vacate the premises to allow the work to begin, had not been agreed. Each party blames the other for that impasse.
- Each of the tenant’s claims is assessed below, in the Order in which they were presented and addressed at the hearing. Exposure to lead based paint
- The tenant says that the poor quality of the painted services in the premises with flaking, chipping and powdering of the paint was apparent. He says that he raised concerns about the condition of the paint with the landlord from the time the tenancy began.
- The tenant says that the flaking of paint above food preparation and cooking areas impacted the utility of the premises and was a source of considerable anxiety for him. Compensation of $20.00 per week for those impacts is sought along with exemplary damages.
- The tenant also says that the landlord’s own policies around paint containing lead direct that for a property this age, the landlord was required to assume that paint used on the premises would contain lead so any deterioration of the paint surface could give rise to a risk of contamination. The tenant says that the landlord’s policy required it to take steps to mitigate that risk, immediately the landlord was notified of the paint deterioration.
- Evidence was given by [witness], the landlord’s Regional Asset and Maintenance Manager. Her evidence is that on 30 August 2022 the tenant phoned the landlord requesting a lead test at the premises. She says that despite the tenant’s claims that the results of the testing were withheld from him, she emailed him the results to the tenant the day she received them (20 October 2024).
- [Witness]’s statement says, “On 22 October maintenance staff visited the property and painted over flaking lead paint with primer to encapsulate these surfaces and temporarily prevent further flaking until more substantive remedial work could be undertaken. [The tenant/s] made a complaint that the encapsulation work had not been done properly.”
- The Tribunal is required to apply the requirements of the RTA, not policies of the landlord which may change from time to time.
- The [report] confirms that the poor quality of the painted surfaces was one aspect of the landlord’s breach of its obligation under s.45(1)(b) to maintain the premises in a reasonable state of repair.
- The evidence suggests that although, if it followed it’s own policy, it should have done so earlier, when the tenant raised a concern about exposure to lead based paint an assessment was done and steps were taken to mitigate the contamination risk, pending more comprehensive remediation work at the premises.
- I do not find an additional breach of the landlord’s obligations in that regard proved. Firewall
- The tenant says that there was a gap at the top of the firewall between the premises and the adjoining unit. He says that breached Building Code requirements, allowed undue noise transmission between the units and created a fire safety risk. The tenant seeks compensation of $15.00 per week and exemplary damages.
- The [report] notes and photographically records: “No fire-retardant seal between twin units. Missing the fire-retardent seal on top of the wall between the attached unit”
- I find it proved on balance that the landlord thereby breached its obligation under s.45(1)(c) to, “...comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.”
- It is reasonable to assume that the resulting gap, shown in the photographs would have contributed to noise transmission between the units. Vermin infestation
- The tenant claims that the amenity of the premises has been reduced through rat and mouse infestations since June 2016. Compensation of $15.00 per week and exemplary damages are sought.
- The [report] notes and shows a number of instances where there are unpatched holes in the premises and broken vents into the underfloor space which I accept would provide access points for vermin which should have been remediated. It says as well, “Bedroom one - large hole enough for mouse to have access and the corner of wall needs to be filled. Property has rat infestation and these holes are good access to them.”
- Prevention of vermin is not of itself an obligation on the landlord under s.45 but the impact of vermin infestation on the amenity of the premises is a factor in assessing the award of compensation/ exemplary damages, if, as I find to be the case here, it results from breach of the landlord’s repair/ maintenance obligations. Roof Structure
- The tenant says that the changes made to the roof support structure were unconsented and inadequate. Compensation of $5.00 per week and exemplary damages are claimed.
- The [report] records, “...additional structure on ceiling space was made. Alterations to roof framing were completed but unable to find the work order for roof repair and replacement. Unable to find any evidence of roof strengthening done to existing whilst roof placement has been completed.... alterations and ceiling cavity may also require changing load bearing walls due to additional dead loads on top of existing walls in the lower level.”
- I find it proved on balance that in this respect the landlord breached its obligation under s.45(1)(c) to, “...comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.” Roofing and Ceilings
- The tenant claims that the amenity of the premises was affected by leaks and resulting dampness. Compensation of $10.00 per week and exemplary damages are claimed.
- The [report] confirms that the chimney needs capping off and that, “...recently replaced metal roofing flat roof flashing behind the chimney is already uplifting, this needs re nailing.” The report notes issues with the ceiling insulation and a ducting and also that no safety mesh was laid a prior to laying the roofing underlay under the new roof.
- It does not record evidence of recent leaking through the roof into the ceiling cavity. Kitchen
- The tenant claims that the kitchen cupboards and hot water cupboard were not provided in a reasonable state of repair. The kitchen was replaced but the tenant says that the new kitchen was inadequate and improperly installed. Compensation of $15.00 per week and exemplary damages are sought.
- The tenant has provided photographs showing the poor state of the kitchen at the start of the tenancy. The [report] notes, “....old cabinet has been pulled out but no remedial works included to repair the walls prior to installing the new. Vinyl floor should be patched matching the existing vinyl... vent hole on kitchen ceiling should have been patched made good and painted prior to fitting the cabinet. Wall behind the wet under bench cabinet should have had remedial works to repair and painted prior to installing the new cabinet.... poor preparation and painting works on wall above the electric stove.......hot water cabinet has paint peeling off indoor veneer needs to be replaced.
- That evidence persuades me on balance that the state of the kitchen when the tenancy began and the inadequacy of the repair/ remediation work when the new kitchen was installed constituted a breach of the landlord’s obligation to maintain the premises in a reasonable state of repair. On ground vapour barrier, under floor insulation coming bathroom, interior environment, ceiling insulation.
- Under this head of claim, the tenant raises a number of issues which he says have impacted on the amenity of the premises. Some of those (mechanical extraction, heating, ground moisture barrier, draught stopping) are the subject of specific standards set by the Residential Tenancy (Healthy Homes Standards) Regulations 2019.
- Those regulations require that Kianga Ora tenancies be compliant with Healthy Homes standards by 1 July 2024. The landlord had the [assessment report] completed in September 2022.
- My finding is that any failure to complete the work required to achieve compliance by the required date has not been intentional. The tenant has not allowed possession, leading to the landlord seeking a possession order so it could implement the repair plan.
- Other aspects of this claim relate to repair/ maintenance matters. The [report] notes, “...some ceiling installations are not properly arranged, some pieces are missing insulation. Tracking penetration is not sealed around the heat pump, the redundant grill vent from the removed extractor has not been blocked, holes in the soffit need covering, there is lifting on the ground vapour barrier and some barriers not laid properly...some segments of the under floor insulation are falling off.... possible water leaks to existing copper pipes..... kitchen sink waste outlet is leaking.”
- In those respects, I find that the landlord is in breach of its obligations under s.51(1)(b). Paths, driveway, spouting, steps
- The tenant claims that the drains are not effective, that water pools on the driveway and the spouting overflows. He says that the driveway and paths have extensive cracking, causing trip hazards. Compensation of $10.00 per week and exemplary damages are sought.
- The [report] confirms, “....concrete surround on gully trap is cracked, waste water is not contained in here, moss and mould slippery on concrete stairs need removing, cracked concrete footpath due to subsidence a health and safety trip hazard, uneven surface has more than 15 millimetres difference. Concrete footpath is lower than the ground surface. Stormwater stays in here and needs to be drained. Concrete driveway has multiple cracks, health and safety trip hazard to tenants.”
- I find that in these respects too the landlord has breached its obligations under section 45 (1). Boundary, asbestos
- The tenant claims that the boundary to the premises was not secure and it took four tranches of remediation work from 2015 to 2020 to fix it.
- The tenant also says that asbestos sheets that had formed a mowing strip were uncovered on 24 April 2019 when a boundary fence was demolished. He immediately notified the landlord.
- A follow up complaint was made on 9 May 2019. Testing on 10 May confirmed the presence of asbestos in the spoil piled next to the house under his daughter’s bedroom window. It was removed on 4 June 2019 after the tenant issued the landlord a notice to fix on 24 May.
- The tenant claims rent abatement of $100.00 per week from 24 April to 5 June 2019 during which time he says his daughter was unable to go outside because of the contamination risk. Exemplary damages are also sought.
- The contaminated spoil represented a potential health risk and ought to have been removed with urgency. The landlord’s failure to do so constituted a breach of its obligations.
- These events occurred more than 12 months before the date of the tenant’s application and are not a continuing breach. The tenant is precluded from bringing an application for exemplary damages for this act/ omission by s.109(2). Quiet enjoyment and repair plan
- The tenant claims compensation and exemplary damages for breach of his right to quiet enjoyment and unlawful entry. Compensation of $10.00 per week and exemplary damages are claimed.
- The evidence does not prove commission of an unlawful act by the landlord entering the premises in breach s. 48(1).
- Under section 38, breach of a tenant’s right to quiet enjoyment of the premises only constitutes an unlawful act , “....in circumstances that amount to harassment of the tenant.” (s.38(3).
- The evidence does not show conduct on the landlord’s part amounting to harassment of the tenant. I do not find that the landlord committed an unlawful act in that regard.
- Section 38(2) provides that, “The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
- The tenant claims that his right to quiet enjoyment of the premises has been breached because of the ongoing and piecemeal approach taken by the landlord to the necessary repairs at the premises, saying that, for example from March to July 2022 there were over 30 staff and contractors through the premises and 8 inspections over a 13 week period.
- It seems clear to me that the tenant’s right to quiet enjoyment of the premises has been impacted by the poor state of repair of the property and the landlord’s various attempts to address the issues, until 2022 at least, in a poorly planned and piecemeal way. Findings - summary
- My essential findings are that: a. the landlord breached its obligation to provide the premises in a reasonable state of repair; b. the tenant met his obligation under s.40(1)(d) to notify the landlord of the need for repairs; c. the period between the start of the tenancy and September 2022 was characterised by ad hoc and inadequate responses by the landlord to necessary repair and maintenance of the premises, leading to a situation where in his September 2022 report, [report writer] assessed the premises as badly in need of repair in many fundamental respects. It largely validated the tenant’s assertions about the state of the premises and the inadequacy of previous attempts at repair and remediation; d. from the point of that assessment being completed, the landlord properly developed a repair plan, in consultation with the tenant and attempted to carry the necessary repair/ maintenance work; e. I am not required to make a finding about whether the notice of termination issued to the tenant under s.53B was valid and effective. Had I been required to make a finding, I would have held that it was, and that the tenant breached his obligations by withholding possession of the premises contrary to that notice, preventing the landlord beginning the repair/ mediation work. f. any compensation due to the tenant for the lack of amenity of the premises and the breach of his right to quiet enjoyment of the premises should be calculated from the start of the tenancy to 1 December 2022 when the tenant denied the landlord access to the premises to begin the remediation work.
What compensation should be awarded?
- The tenant claims a. out of pocket expenses of $3,124.00 b. rent abatement of $50,513.55.
- The out of pocket expense claims principally relate to these proceedings (stationary/ printing/ legal aid repayment) and are covered by costs considerations.
- I accept the tenant’s evidence that work at the premises to remediate the landlord’s breach of its repair/ maintenance obligations to provide a secure boundary, caused the loss of his garden and he should be compensated for the reinstatement of the garden and plants as claimed ($472.79)
- It is appropriate to assess compensation for loss of amenity and breach of quiet enjoyment, by considering the impact of those breaches on a percentage basis ie. to what degree was the tenant not receiving the amenity and quiet enjoyment of the premises for which he was paying rent.
- The evidence shows that the tenant’s use and enjoyment of the premises was significantly impacted by the landlord’s breach of its obligation to provide and maintain the premises in a reasonable state of repair. The landlord’s breaches have caused or contributed to the tenant living in premises with poor interior condition with unpremeditated dampness damage, a poorly fitted and barely adequate kitchen installed over the top of unrepaired and uncovered wall surfaces, unconsented works in the roof space, inadequately installed insulation, unrepaired gaps contributing to the presence of vermin, driveway and paths that drain inadequately and constitute a trip hazard.
- The tenant’s evidence is that there have been to 53 inspections and 104 contractor site works through the tenancy.
- I need also to have regard to s.49 RTA which requires that, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”
- The evidence persuades me that what became, on the tenant’s part a somewhat combative approach to dealing with the landlord and the issues with the premises, and his making demands that he was not entitled to make such as stipulating which of the landlord’s representatives he was prepared to deal with, requiring guarantees the landlord could not properly give, second guessing [report writer]’s findings and refusing entry to the landlord’s contractors on occasion, contributed to rather than mitigated the impact that the need for repair of the premises had on his use and enjoyment of the premises.
- Weighing those considerations I find that compensation equal to 20% of the rent paid from the start of the tenancy to 1 December 2022 would be fair.
- In addition compensation should be awarded for the more dramatic impact on the tenant’s use and enjoyment of the premises during the time when the landlord did not remove the asbestos contaminated soil from the premises between 24 April 2019 and 5 June 2019. Fifty percent of the rent should be abated for that period.
Should Exemplary Damages be awarded?
- I have found that in a number of respects the landlord breached its obligations under s.45(1)(b) and (c).
- I find those breaches to have been intentional. Intent in this context requires that the landlord consciously and intentionally took the action/ inaction that constitutes an unlawful act. It need not be aware that it constitutes an unlawful act. As counsel for the landlord has put in in her submission, “...they must simply have intended to whatever they did or did not do.”
- There can be no doubt that the landlord, through it’s employees and contractors, intended to take or not to take the actions that occurred or failed to occur regarding repairs and maintenance at the premises.
- In looking at the criteria under s.109(3) noted above, the evidence does not disclose the landlord’s decision making processes that led to those outcomes.
- Those acts and omissions resulted in the landlord committing an unlawful act under s.45(1A), through multiple breaches of the landlord’s obligations under s.45(1).
- The effects on the tenant have been significant and there is an undoubted public interest in landlords, not least this landlord, ensuring that tenants are housed in premises that are adequately maintained and that building work on the premises is done adequately and to code.
- For the reasons already noted, the Tribunal should make only one award of exemplary damages for the unlawful act, committed under s.45(1A) by the landlord’s breaches of s.45(1). It is appropriate that the award be of the maximum available for commission of an unlawful act, to recognise the number and extent of the multiple obligations breached. Costs
- The Tribunal does not generally award costs but may do so when the parties are represented (s.102(2)(b) RTA).
- In that case, the Tribunal may Order a party to pay to another party “...the reasonable costs of that other party in connection with the proceedings”
- “Proceedings” encompasses, “....the application to the Tribunal, any interlocutory matters that are dealt with by the Tribunal, preparation for the hearing and the actual hearing before the Adjudicator.” 2
- “Reasonable” costs are generally considered to be in the range of 40-70% of actual costs 3 with 60% being the average.
- An appropriate reference point is the District Court Rules scale - Category 1A.
- In his submissions Counsel for the tenant confirms that to the date of those submissions being filed, 2 invoices totalling $9,670.90 have been rendered.
- Since the first application filed by the tenant on 28 November 2022, these proceedings have entailed: • an adjourned hearing on 31 October 2023; • a hearing scheduled for full day on 29 April 2024, adjourned after apparent agreement between the parties; • a 2 day hearing on 15 and 29 October 2024.
- Reference to the time allocations for category 1A proceedings in Schedule 4 District Court Rules and the daily rates in Schedule 5 give an indicative figure for costs of around $9,000.00.
- In assessing what costs are reasonable in this case, I take into account that part of the proceedings (I estimate 25% in terms of time) concerned the 2 BC 346799 v Ikeda [2020] NZDC 3669 – at para [6] 3 Residential Tenancies: The Law in Practice 4 th Edition, David Grinlinton at p263 – cited in Ikeda landlord’s application for possession, which was a live issue to and including conclusion of the substantive hearing. As noted, had I been required to decide that issue I would have found in the landlord’s favour.
- Weighing those considerations, I find that it would be reasonable to award the tenant 50% of the actual costs as confirmed by his counsel, a little lower than the average, for the reason given above.
- The tenant has been substantially successful and is refunded the filing fee.