Published tribunal order
Tenancy Tribunal case 4476805 — Healthy homes at Room E, Unit/Flat 1, 446 Albany Highway, Albany, Auckland
Decided 9 Oct 2023 · Published 9 Oct 2023 · Application 4476805
- Healthy homes
- 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 tenants names and identifying details.
- Yong Sheng Family Trust must pay [The tenant/s] $5,777.44 immediately, calculated as shown in table below. DescriptionTenant Bond$1,032.00 Exemplary damages: Failure to lodge bond$750.00 Exemplary damages: Healthy Homes Standards$3,600.00 Exemplary damages: Failure to provide tenancy agreement $375.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$5,777.44
Reasons
- The Tribunal must consider an application filed by a tenant against the landlord. The tenancy has ended.
- The most recent tenancy agreement records the landlords as ‘Yong Sheng Family Trust’, but no trustees are named. The tenants are [The tenant/s]. The tenancy is for unit 1, room E.
- The tenancy agreement is a standard form Tenancy Services agreement, recording the tenancy as a fixed term tenancy between 11 September 2022 and 11 September 2023. The tenants had a previous tenancy in this room, but as will be discussed below, did not receive a tenancy agreement for that particular tenancy period.
- The tenancy agreement (for the 11 September 2022 tenancy) further records that a bond of $1,032.00 was paid by the tenants and received by the landlord that same day.
- The tenant reports that the tenancy has ended, but that the landlord has refused to pay the bond.
- The tenant filed this claim on 10 January 2023.
- A mediation occurred. The mediator, Mr Parkes, recorded that an agreement was reached that the landlord would pay $2,000.00 to the tenant to settle any claim in relation to the bond. That was to be paid in full on 31 July 2023, failing that, the tenant could proceed with the claim to the Tribunal. The tenant reports the landlord failed to pay the bond.
- The hearing was convened on 21 September 2023. I have no reason to believe the landlord has not been notified of the hearing, so I will consider the tenants claims.
- The tenant has advanced four claims, which I will now consider in turn.
BOND RELEASE
- The tenant seeks a return of his bond of $1,032.00.
- Section 22B of the Residential Tenancies Act 1986 applies, that provision confirms that: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applied to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlords’s counterclaim.
- The effect of this provision, is that when the tenant applies to the Tribunal for release of the bond in whole or in part, if the landlord wishes to argue that it has any call on that bond, then the landlord “must” file a counter claim for it. In the absence of a counterclaim, then the Tribunal must order that the bond be released to the tenants.
- I have seen no evidence the landlord has filed a claim against the tenant, so the full amount of the bond payment is ordered to be paid to the tenant. EXEMPLARY DAMAGES FOR FAILING TO LODGE BOND WITH BOND CENTRE
- The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge the bond with the Chief Executive.
- Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
- For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
- Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
- In this case the tenants position is that the bond was not lodged. I have contacted the Bond Centre who were not able to find evidence of the bond being lodged. I find therefore that the landlord has breached its section 19 obligations to lodge the bond, therefore has committed an unlawful act, so exemplary damages could be ordered.
- Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
- Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
- Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
- The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for failing to lodge the bond is $1,500.00
- Taking the section 109 factors into account, I have no reason to believe that the landlords failure to lodge the bond was anything other than an intentional act. The effect for the tenant is that the tenants bond has not been kept securely in the Bond Centre, and as can be seen in this case has resulted in great difficulty for the tenant in having it returned. There are very strong interest for tenants, landlords, and the public generally, that the bond system is robust, which demands that bonds to be lodged as landlords are required. It would be just to make an order.
- In this case I will order 50% of the maximum level of exemplary damages. The landlord has provided no excuse for failing to lodge the bond, and it seems the landlord is a landlord with a number of tenants, and so appears an experienced landlord who should know the bond obligations well. I therefore order the landlord to pay exemplary damages of $750.00 immediately.
EXEMPLARY DAMAGES FOR BREACH OF HEALTHY HOMES STANDARDS
- The tenant states that there was no heating provided by the landlord at all. The tenant provided their own heater.
- Based on the information found on the Tribunal’s file, and from what the tenant says, it appears that the tenancy is a boarding house tenancy. But the tenancy agreement is for a regular non-boarding house tenancy, but either way, the landlord is required to comply with the Healthy Homes standards (HHS).
- The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
- The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
- The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
- Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS for standard residential tenancies, and section 66I(1)(bb) for boarding houses. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
- The evidence is that there was no form of heating in the tenancy, certainly there is no evidence to the contrary. The landlord has therefore breached its obligations under the HHS.
- Again taking the section 109 factors into account, I have no reason to believe that the breach was anything other than intentional. The effect for the tenant is that he has lived in cold premises, and there are strong interest for tenants, landlords, and the public generally, that Tenancies be warm dry and healthy. How that interest is achieved, is in part by compliance with the landlords legal obligations, importantly the HHS. It would be just to make an order.
- The maximum level of exemplary damages is $7,200.00. For the reasons as set out above, I again consider it would be reasonable to order exemplary damages at 50% of the maximum, and therefore order the landlord to pay the tenant the sum of $3,600 for this breach. EXEMPLARY DAMAGES FOR FAILING TO PROVIDE A TENANCY AGREEMENT.
- The tenants final claim is that the landlord has not provided a tenancy agreement for the tenancy between 7 May 2022 and 10 September 2022. I have no reason not to accept the tenants evidence on this point.
- Section 13 of the RTA requires that a landlord to provide a copy of the tenancy agreement to the tenant, and on the evidence available this has not occurred. Failure to provide a copy is deemed an unlawful act, and therefore exemplary damages can be ordered.
- Again I have no reason not to conclude the act was anything other than intentional on the part of the landlord. The effect for the tenant is that he has not had a copy of his tenancy agreement. There are strong interest for tenants, landlords, and the public generally the tenants are aware of any obligations arising under the tenancy agreement, which of course are set out in the written Tenancy agreement. It would be just to make an order.
- The maximum level of exemplary damages for failing to provide a tenancy agreement is $750.00. Taking the same approach as above, I order exemplary damages at 50% of the maximum, being $375.00. FILING FEE AND NAME SUPPRESSION.
- Because the tenant has been wholly successful in his claim, I order the filing fee to be paid by the landlord.
- The tenant applies for name suppression, and given he has been wholly successful again name suppression has ordered for the tenant only.