What was Tenancy Tribunal case 4495428 about?

The tribunal order states: The landlords’ names and identifying details including the tenancy address must

How much money was awarded in case 4495428?

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 4495428?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4495428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10424784-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4495428 about?

The tribunal order states: The landlords’ names and identifying details including the tenancy address must

How much money was awarded in case 4495428?

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 4495428?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4495428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10424784-Tribunal_Order_Redacted.pdf.

[Street address], Birkenhead, Auckland 0626 Tenancy Tribunal Case 4495428 — Cleanliness

Order

The landlords’ names and identifying details including the tenancy address must not be published. 1
The tenant’s name and identifying details must not be published. 2 However: a. The tenant must not contact the landlords. If the tenant does contact the landlords, the issue of non-publication of this decision is to be reopened. b. Registry is to send a copy of this decision to the tenant’s current landlord after 19 May 2024 (to give the tenant the opportunity to forewarn her landlord). c. Registry is to bring this decision to the attention of any adjudicator who hears another claim involving this tenant within the next five years for consideration as to whether non-publication of the tenant’s name and identifying details in the case should be entertained.
[The landlords] must immediately pay [the tenant] $414.29 for overpaid rent and for compensation as calculated in the table below.
All other claims are dismissed.
The Bond Centre is to repay the bond to the tenant. 1 In this decision the landlords’ names are generally replaced with the letter “L”. 2 In this decision, the tenant’s name is generally replaced with the letter “T”. DescriptionTenant Rent over-payment – for tenancy ending 09/02/2023$214.29 Compensation for premises less than clean/repaired$200.00 Total award$414.29

Reasons

Introduction

The tenant attended the hearing by telephone.
The landlords attended the hearing in person.
The tenant claims that the landlords failed to provide the premises reasonably clean or in a reasonable state of repair, interfered with her reasonable peace, comfort, and privacy to the aggravated level of harassment, and unlawfully entered the premises.
For remedy, she seeks compensation and exemplary damages.
The landlords claim that the tenant interfered with their reasonable peace, comfort, and privacy.
For remedy they seek compensation and exemplary damages. Application to adjourn the hearing
At the beginning of the hearing, the tenant submitted that she was suffering from post-traumatic stress disorder which was triggered by having to recount the events. She felt retraumatised, overwhelmed, and suffering from brain freeze and therefore unable to clearly remember all of the events.
During the hearing, Ms T submitted she was not being heard. She submitted the hearing should be adjourned and heard by a female adjudicator.
I declined the application. The key events leading to the tenant applying to the Tribunal are set out in the messages between the parties. They are an objective contemporaneous record. There is also video evidence. I am confident that the Tribunal can fairly proceed to decide the case even though Ms T attended the hearing by telephone and encountered difficulties during the hearing.
The continuation of the proceedings is stressful for the parties. A full day in court with a registrar in attendance was arranged for the hearing. The case has already been adjourned once. It would not be in the public interest, fair to the landlords, nor in my view, even in the tenant’s best interests to further delay the hearing. Background
The events unfolded against the backdrop of disruption caused by torrential downpours in the region during Auckland Anniversary Weekend in later January 2023. The Auckland Mayor declared a State of Local Emergency on 27 January 2023. The state of local emergency only ended on 14 February 2023 when a State of National Emergency was declared due to weather.
The parties signed a tenancy agreement on about 25 January 2023. The agreement was for a 12-month fixed term beginning 1 February 2023. However, the parties fell into dispute on the first day of the tenancy. The tenant moved out on 8 February 2023. On 10 February 2023, Ms L obtained a trespass order against the tenant for the premises.
The premises is a studio above the landlord’s garage and a car park. The tenancy agreement describes the premises as a “studio room...occupying the second story of the landlord’s garage, off street parking for one car, and the right of access to and from the studio room.” 3
The landlords occupied the main house and the whole property except the premises.
During the early days of the “weather bomb”, on 29 January 2023, Mr L messaged the tenant raising the possibility of delaying the tenancy commencement because the landlords were on holiday in Tauranga. The landlords had the studio keys with them in Tauranga and were worried road closures might prevent them from returning to Auckland by 1 February.
The tenant got very anxious about the possible delay and messaged: Is there a way we can work something out? I have nowhere else to say and have out of funds for hotels, even backpackers are very expensive I just checked I’m very worried about this
Mr L assured the tenant “It’s very unlikely there would be an issue with our trip back. In these situations I just prefer to over-communicate”. Mr L decided to drive to Auckland early while the roads were open and left the keys for the tenant at the premises. He then returned to Tauranga to re-join his family.
On 1 February 2023, the tenant and the landlords began messaging each other about the move-in. To begin with the messages were amiable. Later the messages became increasingly tetchy over fairly routine issues such as whether there was existing damage at the premises, the tenant photographing the existing damage, where the landlords had left the handover form, and when an entry inspection would occur. 3 Schedule 1 to the tenancy agreement.
The tenant was dealing with a lot of stress in her life and expressed her agitation with the move-in process and alleged Mr L was interfering with her reasonable peace, comfort, and privacy.
At the time of these messages, the landlords were initially in Tauranga, and then driving home from Tauranga. They arrived home with their children at about 8:30pm. Once there, Mr L placed a handover form by the tenant’s front door and knocked on her door.
There followed, several heated face-to-face altercations between the landlords and the tenant. The landlords videoed one of these on a smart phone, which recorded the tenant launching a vituperative barrage of abuse at Mr L .
Afterwards, the Ls telephoned Police. Ms L moved out of the house with her children and lived elsewhere while the tenant remained.
On 3 February 2023, the tenant contacted a mental health crises team after encountering Mr L in the garage, who told the tenant he could be there whenever her wished. 4
The parties continued to exchange argumentative messages by email the next day. The messages then reduced to a trickle and largely petered out.
The issues for determination are: a. Did the landlords provide the premises reasonably clean and in a reasonable state of repair? b. Did the landlords interfere with the tenant’s reasonable peace, comfort, or privacy? And if so, was it to he aggravated level of harassment? c. Did the landlords unlawfully enter the premises? d. Can the landlords claim against the tenant for her unlawfully interfering with their reasonable peace?

Were the premises reasonably clean and in reasonable repair?

Legal principles

Landlords must provide the premises to the tenant in a reasonable state of cleanliness at the beginning of the tenancy. 5 Breaching any of this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 6 4 Email at 5:24pm on 3 February 2023. 5 Residential Tenancies Act 1986 (RTA), s 45(1)(a) 6 RTA, s 45(1A) and Schedule 1A.
“Reasonably clean” means clean to the standard of an average disinterested bystander. A “reasonable” state of cleanliness does not mean spotless, immaculate, or commercially clean, hotel or motel standard. A landlord therefore may have some work to get the premises up to standard for a new tenant and cannot claim the cost of that to the tenant.
Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (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...
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 7
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 8 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 9 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Landlords also have an obligation to repair things that are apparent from observation: 10 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation...
The onus for establishing the claim sits with the person making it on the balance of probabilities. In this case, the tenant claims the landlords did not provide the premises in a reasonable clean condition. Therefore, she bears the onus of proving the premises were less than reasonably clean or in reasonable repair. 7 RTA, s 45(1A) and Schedule 1A. 8 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 9 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 10 See n 6. Discussion
The landlords provided photographs of the studio before the tenancy began.
The tenant provided photographs of the premises on the day the tenancy began.
The tenant’s photographs are far more numerous and detailed than the landlords. Her photographs show a dead cockroach on the floor, a cockroach creeping up a wall. Windows that have traces of cobwebs and green lichen-like grime in the window frame edges. The studio’s interior paintwork appears old, stained, scratched, and marked. It needs repainting. The kitchen wall by the extractor fan appears slightly grubby. The kitchen linoleum does not look thoroughly clean throughout and needs cleaning in some places. The kitchen sink cupboard has some minor stains. One of the kitchen drawers has some small residues of greasy looking grime. A light fitting appears to be greasy and grimy. Some electrical wall fittings need wiping. The bottom of the fridge has some minor staining. Some of the window frames have mould fused into cracks in the paint. The stove top has some rust stains that could have been better cleaned. Conclusion
Overall, I am left with the impression that the premises need a deep clean. There is minor uncleanliness in multiple areas that together amount to the premises being provided to the tenant in a less than reasonably clean condition. The interior paintwork needs redoing; it is not a reasonable state of repair.
Therefore, the premises were not provided in a reasonably clean condition or in a reasonable state of repair. Remedy
Where it is satisfied a party 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. 11
I am not satisfied that the landlords provided the premises in a less than reasonably clean condition or in a less than reasonable state of repair intentionally. I found the landlord’s claim that they believed the premises were presented in an acceptable condition to be plausible. The premises were not filthy by any means and the paintwork was well worn but not extremely so. The previous tenant had 11 RTA, s 109(3) cleaned the premises, but after careful analysis the cleanliness was not to the appropriate standard.
The landlord’s own photographs are consistent with the premises being reasonably clean and in reasonable repair. They indicate less rigour in carefully assessing the condition of the premises less rigorously than the tenant. The tenant had the advantage of bringing “fresh eyes” to the premises. Whereas the landlords may have become inured to the premises’ fair-to-middling cleanliness and repair.
While the standard of “reasonableness” suggests an objective standard, it is a standard that requires an evaluative opinion that will vary depending on the person making that assessment and the nature of the evidence they rely upon. In a case like this, different assessments for reasonableness could be genuinely held.
Therefore, I am not satisfied that the landlords intentionally committee the unlawful acts and the Tribunal must decline to order exemplary damages.
The Tribunal may also order compensatory or nominal damages as a remedy for the landlord’s breach. A competent, fair cleaning contractor may have charged about $150.00 to clean the premises.
The tenant did not suffer a financial loss because she cleaned the premises herself. She spent a little over a week in the premises so endured some lack of amenity.
I consider $200.00 an appropriate amount to order in nominal damages and compensation for the breach. 12

Did the landlords harass the tenant?

The tenant claims the landlords’ text messages amount to harassment. She also claims that at about 8:35pm on 1 February 2023, Mr L knocked at her door, she opened the door, and Mr L tried to push the door open when she went to close it.
The landlords deny the claims. Legal principles
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. 13 12 Under RTA, s 85 the Tribunal must exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes and determine each dispute according to the general principles of the law and the substantial merits and justice of the case. 13 RTA, s 38(2).
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. 14
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person": MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Black’s Law Dictionary 15 defines “harassment” as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
The New Oxford Dictionary of English“ 16 defines “harass” as: subject to aggressive pressure or intimidation”. Discussion
I have reviewed the messages between the parties that led to Ms T filing a claim in the Tribunal by 7:00pm on the first day of the tenancy. 17
I find that Mr L’s messages were not intended to upset the tenant. They contain detail that upset and ultimately overwhelmed the tenant, but they are responsive to the tenant’s emails and are appropriate.
The tenant was tired and distressed already having suffered a bereavement and having to move in difficult circumstances. The further complications with the move- in were just too much for her to bear. She reacted emotionally to the landlords’ messages which were relatively innocuous. The landlords’ responses would have been manageable for another tenant who was not so distressed. However, Ms T was distressed.
Ultimately, when the landlords returned, the tenant reacted in a volatile way as recorded on Mr L’s phone.
The video does cogently show the tenant’s state of mind at one point in the saga. However, it is little more than a “snapshot”. There is no complete recording of all the interactions between the parties. It is possible, for instance, that there was a further confrontation at the front door of the studio after Mr L knocked at the door as the tenant claims. However, what happened immediately afterward is not recorded because the video is turned off abruptly. 14 RTA, s 38(3) and Schedule 1A. 15 Bryan A Gardener (ed) Black’s Law Dictionary (8 th ed, West Group, 2004). 16 Patrick Hanks (ed) (Clarendon Press, Oxford, 1998). 17 See attached Addendum for excerpts from some of the messages. Conclusion
Having considered all the evidence, I find that the tenant has not proved on the balance of probabilities that Mr L attempted to push the door open upon arriving home with his family. Nor do I find it proven that the landlords’ communications about the tenancy or anything else that they did could be interpreted as an interference with reasonable peace, comfort, or privacy.
It follows, I do not find it proven that the landlords interfered with the tenant’s reasonable peace, comfort, or privacy, or that they harassed her.
This claim is dismissed.

Did the landlords unlawfully enter the premises?

Ms T claims the landlord entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections, repairs, and maintenance. 18
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. 19
Mr L encountered the tenant on 3 February when he was with another person in his garage beneath the studio and next to where the tenant parked her car.
The garage was not part of the premises so there was no unlawful entry in this instance.
During the hearing, for the first time in these proceedings, the tenant said she had a vague memory of waking from sleep to see someone sitting on the end of her bed. She had not allowed anyone to enter the studio. She said that the person was Mr L.
This claim emerged as a lightning bolt and a thunderclap from the blue. The tenant had copiously emailed the landlords and the Tribunal detailing her complaint at the time of the tenancy and later. There was nothing that hinted an allegation of this nature might be made.
It is well known that victims of abuse can find it difficult to complain about it for social and psychological reasons, and that they may delay complaining a long time. However, the tenant’s claim is far-fetched. Her other allegations were immediate, detailed, and pulled no punches. It does not make sense that she would omit this claim if it were true. 18 RTA, s 48(1) and (2). 19 RTA, s 48(4)(a) and Schedule 1A.
The Ls had contacted the Police by the time this alleged incident would have occurred. It would be bizarre for Mr L to break into the premises and thereby commit a serious criminal offence when Police was involved.
The tenant had already made a claim in the Tribunal. The tenant had exploded so vituperatively and conducted herself so concerningly that Ms L felt compelled to remove herself and the children from the premises. The tenant’s outbursts were spurred by relatively mundane issues to do with the tenancy. It defies common sense that Mr L would do something so provocative as to enter the premises while the tenant was sleeping against this backdrop.
This claim is far-fetched. I find it to be untrue.
It has not been proven that the landlords went onto the premises during the tenancy.
This claim is dismissed.

Can the landlords claim against the tenant for harassment?

The landlords claim that it is the tenant who harassed them, not the converse.
Ms L says the tenant abused her and her husband in grotesque terms. She emphatically refutes the tenant’s messages asserting that her husband was abusive, and that she (Ms L) was going to leave him with their children. She found the tenant’s reference to her children troubling. She described unequivocally described her husband as: A great father and a wonderful husband.
She says she and her husband were primed to record interactions with the tenant because the tenant’s messages indicated “something was off”. The tenant’s verbal tirades were so horrific that she move away from the premises to protect her four and six-year-old children.
The tenant accepts she was verbally abusive but says it was a reaction to Mr L’s actions.
The landlords could not direct me to a RTA provision or a legal principle that provides for a landlord claim for harassment against the tenant in this jurisdiction. Under s 40(2)(c) of the RTA, tenants must not cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood (emphasis added).
I do not find that the landlords fall within the class of “any other person residing in the neighbourhood” in this case because the relevant interactions between the landlords and the tenant were in their respective capacities as landlord and as a tenant. It would be artificial to categorise the tenant’s alleged tirade, for instance, as being against other persons residing in the neighbourhood when the essential reasons for the outburst stem from the landlord/tenant relationship.
Therefore, I dismiss the landlord’s claim. Rent
The tenancy was for a fixed term. That being so, ostensibly the tenant should be ordered to pay rent to 28 February 2023, after which date the landlords found a new tenant.
However, the landlords clearly wanted the tenant out of the premises as soon as possible because Ms L and the children would not return to the property while the tenant remained.
There are a series of messages about the terms for ending the tenancy. It is arguable the landlords did not agree to the tenant moving out when she did. However, the landlords issued a trespass order against the tenant on 10 February 2023 forbidding her from returning to the premises.
In those circumstances, the tenant should not be required to pay rent beyond her move-out date. Bond
The bond is to be paid out to the tenant. Non-publication - landlords
The parties apply for non-publication of their identifying particulars.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. 20
The landlords have substantially succeeded in the proceedings by successfully defending the principal claim of harassment. I do not find that publication is in the public interest or is justified by the landlords’ conduct or any other factor. Non- publication of their details is ordered. 20 RTA, s 95A(1). Non-publication - tenant
The Tribunal delivered its substantive decision on this matter on 12 April 2024, but reserved the issue of non-publication of the tenant’s name, giving the parties to 3 May 2024 to make submissions. The Tribunal directed:
I am not sure however that refusing publication is in the public interest or is justified due to the tenant’s conduct. The tenant’s actions – including the dramatic abuse she directed at the landlords - caused the landlords significant distress and inconvenience.
On the other hand, it is likely that the tenant’s conduct was partly due to personal problems. She evidently is suffering from post-traumatic stress disorder. She may have other problems. She may be a vulnerable person.
This Tribunal is not a therapeutic jurisdiction. However, it is possible the potential harm of publication to the tenant could outweigh the concern that other landlords are not forewarned by knowledge of what happened in this case. 21
I have decided the Tribunal needs more evidence on this point. The tenant’s support or social worker, advocate, doctor, any qualified medical professional, and the tenant’s mother, for example, may be able assist by providing evidence about her health and whether the tenant’s name should be published or not. Legal principles
Section 95A(1) and (4) of the RTA relevantly provide: 95A Suppression orders (1) The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. ... (4) The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (5) An order under subsection (4) may be made subject to any conditions that the Tribunal considers appropriate. 21 RTA, s 95A(1).
Section 95A provides limited exceptions to the general common law principle of open justice. As the Tribunal previously explained: 22
The usual situation in law that judicial proceedings are open unless the circumstances are exceptional. 12. There are a range of proceedings in New Zealand in which there is a statutory expectation around name suppression, as occurs with section 95A of the RTA. However, it is important to recognise that section 95A does not create a mandatory expectation of suppression, rather this provision provides the Tribunal with a discretion as to whether suppression should be granted. That requires the Tribunal in all cases where there has been an application for suppression, to evaluate the facts of the individual case against the relevant law that applies – both statute and case law.
As far as case law is concerned, the Court of Appeal has confirmed that when considering applications for suppression, the starting point must be on the principle of open justice, and approved the approach taken by the High Court, which stated: ...that the principle of open justice dictates that there should be no restriction on publication of information about a case, ‘except in very special circumstances’. Background
The tenant’s concerning behaviour included the following. Firstly, the tenant overreacted to the landlords’ routine emails. She launched a barrage of argumentative emails at the landlords. She filed a claim in the Tribunal against the landlords on the first day of the tenancy when the landlords had done little wrong and had no opportunity to correct any genuine issues.
Second, later on the first day of the tenancy, soon after the landlords arrived, she aggressively yelled insults and threats against the landlords.
Third, the tenant’s later messages included the baseless statement that the female landlord would leave the male landlord, taking the children with her.
Fourth, she made false allegations against the male landlord during the hearing.
The tenant’s conduct was of a kind that potential landlords would be inclined not to grant her a tenancy if they were aware of it. 22 Kāinga Ora–Homes and Communities v Matthew Raneira Rangitakatu [2021] NZTT Porirua 4309535 (footnotes omitted). Submissions
The landlords strenuously oppose non-publication. They submit:
This web of lies and manipulation the court itself had to filter through, sometimes successfully, sometimes not, despite even third party and photographic evidence. The court should not fall for more of Ms T's manipulation.
The court cannot in good conscience, and must not, take at face value any representation made by Ms T, including any mental health claim.
Any claim or testimony by Ms T's enablers must also be entirely discounted under that lens, as nothing more than hearsay, tainted by Ms T's lies and manipulation.
Landlords do not claim to be psychiatric experts. Neither is the court. Neither are Ms T's no doubt well intended enablers. Landlords are merely highlighting facts, facts which the court itself witnessed at trial and through evidence.
The inevitable conclusion is that the court cannot accept any of Ms T's purported mental health claims without a robust and independent psychiatric evaluation.
Ms T's escalating pattern of harassment and stalker behaviour prove her to be a danger to the public. She is but one small step away from physically harming others. This consideration alone far outweighs any purported effect of publication on Ms T's wellness.
The tenant submits: This kind of thing has never happened in a tenancy before in my 25 years of renting, and I was acting completely out of character because of the situation and severe stress and distress. This was a one off situation/an isolated event and not an accurate reflection of how I normally am in a tenancy situation or otherwise, which my landlord references from before and after this tenancy, and character references from my during my time as a teacher support.
She provided letters in support from her general practitioner, a financial mentor from CARE Waitakere Trust, her current landlord, a previous landlord, and her mother.
The letter writers support the tenant’s narrative. Importantly, the tenant’s GP wrote: Her medical history includes significant anxiety and depression, post-traumatic stress disorder and she suffered a head injury in 2020. She is very vulnerable and having her name and medical history published would be detrimental to her mental and physical health. Section 95A(1)
Section 95A(1) creates a statutory presumption of non-publication where a party has substantially succeeded in proceedings: the Tribunal must order non-publication if the subsection’s criteria are met.
I consider the tenant has substantially succeeded in the proceedings.
However, the statutory presumption in favour of non-publication is displaced if the Tribunal considers publication is in the public interest or is justified by the party’s conduct.
Potential landlords have a legitimate interest in knowing about the tenant’s conduct in this case.
I consider publication is in the public interest and that it is justified by the tenant’s conduct.
I note that s 95A(1) does not require the Tribunal to consider the tenant’s interests. However, under s 95A(4), the Tribunal may order non-publication having regard to not only the public interest, but also “the interests of the parties”. The tenant is a party, so the Tribunal must consider her interests under the subsection which I turn to now. Section 95A(4)
The subsection does not contain a presumption of non-publication as does s 95A(1). Rather, the Tribunal has a discretion to order non-publication, but it must first consider the interests of the parties and the public interest.
I consider the Tribunal’s discretion under s 95A(4) is a broad one. However, in exercising its discretion it must give all three factors full and proper weight. Moreover, deference to the principle of open justice demands that the discretion must be exercised carefully with that principle in mind.
I consider firstly, the public interest.
It is in the public interest that a tenant’s bad behaviour is made known to future landlords. That would help protect landlords from similar behaviour that could affect them commercially and also them and their families personally.
I observe that the Tribunal did not find the tenant liable for any breach of her tenant obligations. There is no provision that tenants must not interfere with landlords’ reasonable peace, comfort, or privacy for instance. Nonetheless, the Tribunal’s discretion is broad enough to include other bad behaviour when considering non-publication in my view.
The Tribunal’s electronic records include four other applications involving the tenant (there are four other applications involving someone with the same name, but that may be a different person so those are disregarded). In 2017, the tenant was respondent in a vacated arrears and costs case, in 2021 she was the successful applicant in an unlawful residential premises case, and in 2022 she twice applied to end a fixed-term tenancies early due to personal circumstances.
Without considering the tenant’s interests, the public interest favours publication. However, the public interest also includes a vested interest in the parties’ interests. What is good for the tenant’s mental wellbeing, for instance, may also be in the public interest.
Now I consider the landlords’ interests.
The landlords have an interest in vindication for the harm they suffered. They have not been compensated for the stress and anxiety that the tenant caused them because the tenant’s atrocious conduct did not breach a relevant legal duty under the RTA. If the Tribunal held the tenant to account by at least publishing her name, there would be some acknowledgement of what the tenant put them through.
The Tribunal accepts the tenant caused the landlords serious emotional harm. Publication would provide a measure of vindication for that harm and the satisfaction of protecting other landlords from a similar episode.
The landlords are convinced the tenant “is but one small step away from physically harming others”. Thankfully, the tenant’s behaviour did not involve any physical violence or damage to property nor threats of physical harm or damage. That is not to minimise the serious psychological impact that the tenant’s conduct had on the landlords, but it does place the conduct at a less serious point in the spectrum of concerning conduct. In my view, the conduct itself does not point to the likelihood that next time (even if it were to recur) it would escalate to violence or threats of violence.
Lastly, I consider the tenant’s interests.
The tenant has significant problems, including anxiety, depression, and post- traumatic stress disorder. Those problems are exacerbated by stress. Moving house is one such stressful situation that might cause her to behave improperly towards landlords or others. These problems affected her behaviour in this matter.
I accept the tenant’s mental health issues are real. Her doctor’s letter confirms that. Moreover, the Tribunal’s other files for the tenant indicate that the tenant has resorted to mental health crisis teams before in the tenancy context.
The tenant’s behaviour was probably largely out of character, although it is likely not the first time she has behaved in this way. The tenant presents a risk of behaving similarly, but significantly in my view, says she has learnt from this.
In her texts and emails to the landlords, the tenant aggressively asserted her Residential Tenancy Act rights. She used the Act as a sword rather than a shield as it should be used. It is concerning that the tenant “weaponised” her Tribunal rights on this occasion. However, she has generally succeeded in her claims or resolved them. Indeed, in this case, the tenant succeeded with her cleanliness claim.
The tenant made serious, untrue allegations against the landlord in hearing after lunch, but by then she was not thinking or speaking coherently. It would not be fair to give that behaviour undue weight when the hearing proceeded in the knowledge that the tenant was struggling with her demons.
Importantly, the tenant’s submissions seeking suppression express some regret, and do not repeat the outlandish allegations. That is an indication of acceptance that the behaviour was poor, which provides some assurance that it will not be repeated.
It is concerning that publication could result in general publication, not just a publication to potential landlords. If that happened, the tenant could suffer unwarranted public opprobrium for conduct that was influenced by her mental health problems. The tenant’s GP states that could be “detrimental to her mental and physical health”.
The public interest imperative of protecting future landlords can be answered to some degree by directing under s 95A(5) that should the tenant appear before the Tribunal again this decision is to be brought to the adjudicator’s attention, that the tenant not to contact the landlords, and that this decision to the tenant’s current landlord. Conclusion
The outcome is finely balanced.
I have evaluated the facts of the case against the relevant law. In that regard, I have carefully considered the s 95A(4) factors, giving each their due weight in the context of the principle of open justice.
Matters tipping the balance in favour of non-publication include that the tenant’s conduct was influenced by her mental health problems, the Tribunal’s concern that general publication would have an adverse effect on her mental wellbeing, and that the tenant expressed regret for her conduct which indicated insight meaning that it is more probable such conduct will not recur.
The Tribunal orders non-publication on the conditions set out in the order above.
Finally, it should be noted that the Tribunal is unlikely to order non-publication again if the tenant is before the Tribunal again in similar circumstances.

Tenancy Tribunal case 4495428 — Cleanliness at [Street address], Birkenhead, Auckland 0626

Tenancy Tribunal case 4495428 — Cleanliness at [Street address], Birkenhead, Auckland 0626

Order

Reasons

Were the premises reasonably clean and in reasonable repair?

Did the landlords harass the tenant?

Did the landlords unlawfully enter the premises?

Can the landlords claim against the tenant for harassment?

Order

Reasons

Were the premises reasonably clean and in reasonable repair?

Did the landlords harass the tenant?

Did the landlords unlawfully enter the premises?

Can the landlords claim against the tenant for harassment?