Published tribunal order
Tenancy Tribunal case 4497327 — Tenancy dispute
Decided 4 Sept 2023 · Published 4 Sept 2023 · Application 4497327
- Exemplary damages
- Property damage
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 name and identifying details.
- Janjira Hongrapipat must pay [The tenant/s] $2,020.44 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing.
- The tenant has applied for refund of their bond following the end of the tenancy and exemplary damages for failure to lodge the bond. Refund of Bond
- At the hearing the landlord made a claim against the bond. However, the landlord did not file an application with Tenancy Services.
- Section 22B RTA provides: (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 applies 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 landlord’s counterclaim.
- The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded to the tenant. The landlord holds the bond of $2,500.
- The tenants gave evidence that had agreed for landlord to retain $500 as payment of an insurance excess for a damaged stove top. That amount is deducted from the amount to be repaid to the tenants, so that the landlord must reimburse $2,000 of the bond.
- This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made. Failure to Lodge the Bond
- The tenant also claims the landlord failed to lodge the bond with the Bond Centre within the required period.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (see s 19(1) Residential Tenancies Act 1986). This applies whether the bond is paid in part or whole.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 (see s 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).
- A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
- The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
- However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
- In this case, the landlord claimed that she was not aware of the requirement to lodge the bond. She should have been. It is incumbent on landlords to be aware of their responsibilities and obligations.
- I am satisfied that the landlord’s failure was not intentional in this instance. The tribunal may take a different view if similar applications are made against this landlord in the future.
- As the tenants were substantially successful, I have awarded reimbursement of their filing fee and granted their request for suppression of their details.