What was Tenancy Tribunal case 4486640 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4486640?

Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4486640?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4486640?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9211009-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4486640 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4486640?

Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4486640?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4486640?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9211009-Tribunal_Order_Redacted.pdf.

40 The Terrace, Wellington Central, Wellington 6011 Tenancy Tribunal Case 4486640 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4486640 — net $1,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failure to lodge bond	$1,000.00	failure to lodge bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,020.44
Total payable by Landlord to Tenant	$1,020.44

Claims and awards in Tenancy Tribunal application 4486640 — net $1,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failure to lodge bond	$1,000.00	failure to lodge bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,020.44
Total payable by Landlord to Tenant	$1,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
By way of declaration: The agreement [The tenant/s] had with UniLodge New Zealand Limited for accommodation became subject to the Residential Tenancies Act 1986 on 1 January 2022.
UniLodge New Zealand Limited must pay [The tenant/s] $1,020.44 immediately in accordance with the following table:
All other claims are dismissed.

Reasons

[The tenant/s] has applied for her bond to be returned and for exemplary damages and compensation for various alleged breaches of the Residential Tenancies Act 1986 (RTA) by UniLodge. She was represented in these proceedings by [The tenant’s representative/s] as she now resides overseas.
UniLodge was represented by their lawyer Mr Kirker and makes the submission that the Tenancy Tribunal does not have jurisdiction over this accommodation arrangement by virtue of it being exempt from the RTA. They say this is a situation to which the s5B of the RTA exemption applies as this was a student accommodation arrangement.
The questions for the Tribunal are therefore as follows: a. Does the RTA apply to this arrangement for accommodation? b. If so has UniLodge breached any of the requirements of the RTA? c. If so, what monetary orders should be made.
I note at the outset that a considerable number of submissions and evidence were filed in this matter. Not all have been referred to in this decision for obvious reasons of brevity. However, the parties can be assured they have all been considered in the forming of this decision.

Does the RTA apply?

This claim involves the residence of [The tenant/s] at UniLodge’s Stafford House (the Hall) over the summer of 2021-2022. [The tenant/s] had previously resided at the Hall as a student, between June and November under a ‘residence agreement’. On 27 September 2021 she signed a ‘summer residence agreement’ (the agreement) to reside there between 8 November 2021 and 19 February 2022.
UniLodge had been contracted by Victoria University (Victoria) to provide student accommodation at the Hall since 2002 (the contract). Just two days after [The tenant/s] signed the agreement, Victoria notified UniLodge that they would be ending their contract with them, effective 31 December 2021. Victoria advised [The tenant/s] of this and said that UniLodge would be providing private accommodation upon the expiry of their contract with Victoria.
Mr Kirker submits that when both parties entered into the agreement both were of the understanding that the accommodation would continue to be provided as student accommodation and therefore, pursuant to s5B, exempt from the RTA. He says that it was clearly the intention of both parties that Stafford House would continue to provide student accommodation for the entirety of the contract.
Mr Kirker further submits that the change in arrangement between Victoria and UniLodge half way through the agreed term did not and should not, affect the performance of this agreement as intended. He relies heavily on the parties’ intention when they signed as to why the exemption should continue throughout. Ms Roberts for UniLodge is clear that they had no prior indication that Victoria would be ending their contract until they were informed by email of 29 September.
Ms Roberts says that their legal advice at the time was that the s5B exemption would continue to apply to existing contracts that were commenced prior to the contract ending. However, I have not been provided with evidence of that legal advice nor any legal basis for that proposition.
Ms Roberts further says they were advised by their lawyer that any future contracts would be exempt pursuant to s5(s) of the RTA. Correspondence filed indicates that the Ministry of Business, Innovation and Employment (MBIE) disagreed with this position. Ms Roberts says that after discussions between MBIE and UniLodge, UniLodge decided to concede to MBIE that their accommodation would be pursuant to the RTA going forward. They say this was to minimise any further complication or delay for MBIE, themselves and their residents. Therefore, in approximately April 2022 they changed their residence agreements to tenancy agreements accepting the jurisdiction of the RTA.
I note that in the correspondences MBIE’s position was consistently that the accommodation arrangements UniLodge were providing at the Hall came under the jurisdiction of the RTA after their contract with Victoria ended. They did not accept either of the two exemptions UniLodge promoted, and it was ostensibly only as a result of those discussions becoming complex that UniLodge decided to accept the MBIE position rather than continue with an elongated discussion about it. I do accept Ms Roberts’ submission that they fully engaged with MBIE and consistently attempted to act in good faith.
[The tenant’s representative/s] submits that the RTA does apply for the following reasons: i. The agreement states “UniLodge Stafford House will comply with all relevant statutes and regulations relating to the provision of accommodation”. 1 [The tenant’s representative/s] therefore distinguishes the agreement with the residence agreement [The 1 Clause 3.2(b) tenant/s] had signed when UniLodge were still contracted to Victoria. He says this indicates they were aware their legal position had changed. Further he says, the reference to ‘all relevant statutes’ would include the RTA. He reads this as an acceptance that the RTA does apply to the agreement. ii. The fact that the accommodation supply went ahead after advice regarding the ending of the contract had been provided indicates, [The tenant’s representative/s] submits, that it was to be pursuant to the RTA. He says that as both parties knew the contract was ending, the understanding was implicit that the agreement would be subject to the RTA as UniLodge would be private providers of accommodation. iii. UniLodge’s website states for tenants that “you are legally bound by the Residential Tenancies Act and deemed to be in a leasing arrangement”. iv. Jurisdiction was accepted by the Tribunal in Z v UniLodge [2023] NZTT 4439889. v. Also in Z v UniLodge, a UniLodge employee orally accepted jurisdiction of the RTA. vi. [The tenant’s representative/s] further submits that even though the agreement was not drafted with specific reference to the RTA, that should not mean that the RTA does not apply. He cites another Tribunal decision that accepted jurisdiction of the RTA despite the parties not using an agreement that referenced the RTA. 2 This submission is correct. vii. [The tenant’s representative/s] submits that the Tribunal should follow the binding precedent of Martin v Suite Places Limited CIV- 2009-004-1671 which confirms the proposition that the exemptions outlined in the RTA should be given a strict and literal reading. I agree.
Mr Kirker’s response to [The tenant’s representative/s]’s submissions is as follows: i. Summer and term agreements UniLodge provided for students were always different. The agreement [The tenant/s] signed was the same as what she would have signed had she been there the summer previously. It was therefore not drafted differently in anticipation of any change in legal status. I accept this submission. 2 Jeong v Wang [2022] NZTT 4343742 ii. Further, there was no specific reference to the RTA in clause 3.2(b) whereas other Acts 3 were specifically referenced. This he submits, means that it was not envisaged that the RTA apply. iii. Ms Roberts’ evidence is that when they agreed with MBIE to come under the jurisdiction of the RTA they changed the website. Prior to April 2022 there was no reference to the RTA with respect to their New Zealand properties. She says that all of the accommodation they provide in New Zealand had been in contract with universities. The ending of this contract was the first time they became a private provider in New Zealand, and it was only at that stage that the website was changed. Therefore, at the time of this agreement term, there was no reference to the RTA on the website. I accept this submission. iv. Ms Roberts submits that the employee who made the admission to the Tribunal in Z v UniLodge had no authority to do so, was young and did not know what she was saying. I accept this submission.
Firstly, whilst Z v UniLodge dealt with a very similar situation, it is distinguished from this one as UniLodge did not attend the hearing. Therefore, I was not privy to UniLodge’s submissions or evidence in the making of that decision as I have been here. It is also distinguished by the fact that the relevant agreement in that matter was entered into after the ending of UniLodge’s contract with Victoria had been notified to both parties. The law and discussion
Section 10 of the RTA places the burden of proof on the party seeking to rely on the apparent exemption, that is UniLodge here, to unambiguously satisfy the Tribunal (to the requisite civil standard) that the arrangement is subject to an exemption and as such the Tribunal should not have jurisdiction over it.
The RTA is considered to be consumer protection legislation and the Tribunal has applied the RTA, where there is doubt about jurisdiction, in a protective way. Accordingly, precedent is clear that the exclusions in section 5 of the RTA should be applied strictly. The District Court has stated that in order to give effect to the RTA’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally 4 , and the Tenancy Tribunal must follow District Court decisions.
Section 5B is clear that the RTA does not apply if the premises are owned or operated by a person who is a tertiary education provider or a person who has 3 Building Act 2004 & Health and Safety in Employment Act 1992 4 Martin v Suite Places Limited CIV-2009-004-1671 entered into a written agreement with a tertiary education provider whose students are accommodated at the premises. It is written in the present tense; therefore the accommodation provider must have an agreement with the tertiary education provider when the tenancy is in place. Not did have a contract, but does have a contract.
Therefore, I do not accept the argument that because UniLodge had a contract at the commencement of this agreement, they remain the type of accommodation provider this section applies to after that contract ends.
I also do not accept the argument that the intention of the parties is a persuasive factor. It is highly unlikely that at the time of signing, [The tenant/s] had any notion of the meaning or relevance of the RTA, let alone s5B. Further, s11 of the RTA prevents any agreement that would be inconsistent with the provisions of the RTA (when it applies), particularly when doing so would mean a landlord would be avoiding their responsibilities.
Stated another way, this was always an agreement for a residential tenancy, it was just that whilst UniLodge was under contract to Victoria, section 5B exempted them from the rights and obligations enshrined in the RTA. Therefore, as soon as the exemption could no longer be in place by virtue of that contract ending, the RTA commenced applying.
Accordingly, I am satisfied that from 1 January 2022, the RTA applied to this agreement. Did the landlord’s breach their obligations with respect to the bond?
It is not disputed that the bond was never lodged with the Bond Centre. Mr Kirker argues that UniLodge did not lodge the bond because at the commencement of the tenancy they were not legally obliged to, nor did they consider that at any time during the tenancy they subsequently became obliged to.
This situation has been created by the failure of UniLodge to refund [The tenant/s] bond within a reasonable time frame. The tenancy ended in February 2022. [The tenant/s] started asking for her bond in April. It was not refunded to her until the end of March 2023; 13 months after the end of the tenancy.
As I have found that the s5B exemption ended with the contract (on 31 December 2021), the provisions of the RTA commenced applying the next day. Therefore, UniLodge was required to lodge [The tenant/s] bond with the Bond Centre then. They did not do so which is in breach of s19 of the RTA and an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
I find the element of intention established. UniLodge intentionally did not lodge the bond. The intention element of s109 relates to the intention not to lodge the bond, not the intention to breach the RTA. Accordingly, I consider an award of exemplary damages
The effect of this breach on [The tenant/s] has been considerable. She was without her $420 bond for over a year when she was otherwise entitled to it. This created financial hardship for her given her international student status. It has meant that she has had to file this application with the Tribunal which has taken considerable time and effort. She has also had to engage a representative to continue the matters for her as she has returned to [Country].
The bond was not returned to [The tenant/s] until two months after the application with the Tribunal was lodged. It therefore took a year of communications and an application to the Tenancy Tribunal to elicit any meaningful response from UniLodge on this issue. [The tenant’s representative/s] also says that the payment was not accompanied by any communication, let alone an apology; the money was just transferred into [The tenant/s] account. No apology was forthcoming from UniLodge until this fact was pointed out at the hearing at which point Ms Roberts unreservedly apologised.
This is the second case that has been brought before the Tribunal on comparable facts and given UniLodge’s view on their legal requirements, it is likely a number of other students also found themselves in a similar situation.
I do accept Ms Roberts’ submissions that the delay was created by a clerical error created by the change in systems over the relevant period and that their legal advice was that they did not need to lodge the bond. I also accept that UniLodge were trying to do the right thing in providing holistic accommodation and care for students and were taken aback by Victoria’s refusal to renew their contract. I also note that UniLodge reimbursed [The tenant/s] her administration fee 5 when her bond was refunded in good will as they were not legally obliged to, therefore effectively as compensation for the delay.
However, I must also consider the very important fact that bond money is a tenant’s money and is legislatively protected for a very good reason. This exact situation of a bond being unreasonably withheld for an extraordinary length of time is one of the situations the RTA is attempting to protect tenants from. 5 Related to her initial residence agreement in June 2021
I also note that MBIE’s Tenancy Compliance and Investigations (TCIT) investigation into UniLodge in August 2022 found that UniLodge was not lodging bonds in accordance with s19(1)(b) but commenced doing so at some point prior to the investigation report being completed.
Having considered all of the above factors, I find that an award of $1,000 exemplary damages justified in this instance 6 .

Was the agreement provided to the tenant?

[The tenant/s] claims that UniLodge did not provide her with a copy of the tenancy agreement after she signed it.
Ms Roberts says that even though they weren’t under the jurisdiction of the RTA when the occupancy commenced, the usual arrangement was that an occupant would be given a copy when they checked in and she thought [The tenant/s] had been given one. Presumably this did not happen for [The tenant/s] as she was already resident when her (second) agreement commenced.
Section 13 of the RTA states that a landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. I am satisfied that this did not occur here.
However, despite the breach of s13 being an unlawful act, I am precluded from making an award of exemplary damages by the passage of time. Section 109(2)(b) of the RTA states that an award of exemplary damages cannot be made if the application for same is filed over 12 months after the commission of the unlawful act 7 . The tenancy commenced on 8 November 2021 which was when the agreement should have been provided to [The tenant/s] by. Further, the RTA commenced applying on 1 January 2022 which would be the latest date the agreement should have been provided by. This application was made on 23 January 2023, therefore over 12 months after the commission of the unlawful act.
I note that even if I had not been statutorily barred from awarding exemplary damages, I am unconvinced they were justified in this instance. This is because when the tenancy had actually commenced the RTA did not apply. When the RTA became applicable to this tenancy UniLodge was under the impression that [The tenant/s] had been given a signed copy of the agreement as they had intended. She never raised the omission and did have a copy of the agreement signed by her, just not one signed also by UniLodge. I do note that she did have cover emails confirming the existence of the agreement. [The tenant/s] was 6 S109(2)(a)(i)RTA 7 Unless the unlawful act relates to the lodging of the bond with the Bond Centre therefore nor prejudiced by the omission which I am satisfied occurred by a genuine mistake.
Accordingly, this claim is dismissed.

Were the correct details included in the tenancy agreement?

[The tenant/s] also seeks exemplary damages on the basis that the insulation and insurance details were not included in the tenancy agreement nor provided to her.
A landlord must 8 include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A RTA.
Further, a tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) RTA.
Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A RTA.
These claims are dismissed. Firstly, as discussed above, the application was made out of time. Secondly, [The tenant/s] has not established that she requested a copy of the insurance policy therefore it has not been proven that s45(2B) and (2C) have been breached.

Should general damages be awarded?

[The tenant’s representative/s] seeks an award of general compensation for [The tenant/s] on the basis that she has suffered undue hardship and humiliation throughout this process. He says that being without her bond for 13 months created substantial financial hardship for her especially considering the international student fees she faced. He also says she was humiliated in having to go through this process in the way in which it has panned out. She feels she 8 See section 13A(1A) RTA was badly treated by UniLodge which has caused her great distress. [The tenant’s representative/s] also says [The tenant/s] was very cold in the apartment and compares her situation to her friend, [redacted] who brought the earlier case against UniLodge 9 .
Firstly, as stated at the hearing I do not accept the submission that as [redacted] and [The tenant/s] are friends, they should be awarded the same by the Tribunal. Each case has been treated entirely independently on their own facts. Further, as discussed above, I have distinguished that case from this given UniLodge was not present at the hearing.
I also dismiss any submission that compensation should be awarded because the apartment was cold. There is no claim before me regarding the compliance or otherwise of the premise with the Healthy Homes Standards (HHS) or any other regulation relating to heating. Regardless, this premise is an apartment in a multi-story apartment building which may well have been exempt from the HHS.
I accept the submission that [The tenant/s] has endured a long and difficult process to retrieve her bond, a process she should not have been subjected to. That situation however has been addressed in the award of exemplary damages.
The Tribunal approaches claims for emotional injury carefully as some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises, and a contracting party has traditionally been deemed to take the risk. Therefore, it is only in exceptional circumstances that such an award will usually be made. I do not find it established in evidence here that [The tenant/s] is of exceptional circumstances.
[The tenant/s] has certainly endured a battle in obtaining her bond, however it has not been proven that she has suffered unduly. At this point it is important to reiterate that the onus of proof lies with the person bringing the claim. It is the civil standard of “balance of probabilities “or “more likely than not” but it still has to be met. I do not find it met with respect to the alleged undue hardship and humiliation, as there is simply no tangible evidence on the point.
Accordingly, this claim is dismissed.

Should the filing fee be reimbursed?

Because [The tenant/s] has substantially succeeded with the claim, and was put to the effort of making the claim due to UniLodge’s failure to return the bond, I have reimbursed the filing fee. 9 Z v UniLodge [2023] NZTT 4439889

Should suppression be granted?

Both parties seek suppression. Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. As [The tenant/s] was successful but UniLodge was not, I direct that only [The tenant/s] identifying details be redacted from the published order. I also consider it in the public interest to be aware of the name of the landlord in this case. K Lash 24th July 2023

Tenancy Tribunal case 4486640 — Exemplary damages at 40 The Terrace, Wellington Central, Wellington 6011

At a glance

Tenancy Tribunal case 4486640 — Exemplary damages at 40 The Terrace, Wellington Central, Wellington 6011

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Does the RTA apply?

Was the agreement provided to the tenant?

Were the correct details included in the tenancy agreement?

Should general damages be awarded?

Should the filing fee be reimbursed?

Should suppression be granted?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Does the RTA apply?

Was the agreement provided to the tenant?

Were the correct details included in the tenancy agreement?

Should general damages be awarded?

Should the filing fee be reimbursed?

Should suppression be granted?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions