What was Tenancy Tribunal case 4508389 about?

The tribunal order states: The Tribunal orders suppression of all tenants’ names and identifying details.

How much money was awarded in case 4508389?

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 4508389?

The primary dispute was Rent arrears. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Leaks, Boarding House.

Where can I read the official tribunal order for case 4508389?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11295744-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4508389 about?

The tribunal order states: The Tribunal orders suppression of all tenants’ names and identifying details.

How much money was awarded in case 4508389?

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 4508389?

The primary dispute was Rent arrears. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Leaks, Boarding House.

Where can I read the official tribunal order for case 4508389?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11295744-Tribunal_Order_Redacted.pdf.

HEARING DATES: Tenancy Tribunal Case 4508389 — Rent arrears

Order

The Tribunal orders suppression of all tenants’ names and identifying details. 1
Angela Sun must pay the Chief Executive, Ministry of Business, Innovation and Employment the sum of $21,770.44 immediately, calculated as follows: Exemplary damages as per table below$21,750.00 Filing fee reimbursement$20.44 Total payable by Ms Sun to applicant$21,770.44 Table of sums to be paid by Angela Sun 1 Including the names of the tenants who did not give evidence. TenantNo tenancy agree- ment S 13(4) Bond S 19(2) Terminating tenancy without grounds s 60AA Failing to meet obligations under s 66I(4) Total Tenant 1 2 $100$350$1,000$3,500$4,950 Tenant 2 3 $100$350$3,500$3,950 Tenant 3 4 $100$350$3,500$3,950 Tenant 4 5 $100$350$1,000$3,500$4,950 Tenant 5 6 $100$350$3,500$3,950
Sunny Rental Ltd must pay the Chief Executive, Ministry of Business, Innovation and Employment the sum of $1,220.44 immediately, calculated as follows: Exemplary damages as per table below$1,200.00 Filing fee reimbursement$20.44 Total payable by Sunny Rental Ltd$1,220.44 2 [Tenant 1] 3 [Tenant 2] 4 [Tenant 3] 5 [Tenant 4] 6 [Tenant 5] TenantNo tenancy agree- ment S 13(4) Terminating tenancy without grounds s 60AA Total Tenant 4 $100$100 Tenant 5 $100$1,000$1,100

Reasons

Two applications were filed by the Chief Executive of the Ministry of Business, Innovation and Employment (the Chief Executive) on behalf of seven tenants. The respondents are the alleged landlords.
There are two applications because there are two premises involving the same alleged landlords. The premises are located at 6 Esmonde Road, Takapuna (the Takapuna property) and 22 Hugh Green Drive, Pinehill (the Pinehill property).
The Second Respondent, Ms Sun, is a director of the First Respondent, Sunny Rental Ltd (SRL), previously known as Sunny Visa Ltd (SVL). Ms Sun became a director of SRL on 22 July 2020. It was incorporated on 12 September 2016 by Bin Sun. 7 According to Ms Sun, SRL initially operated as a tourism company.
The Chief Executive claims the Takapuna property was rented by Ms Sun personally on 22 February 2019 and that the Pinehill property was rented by SRL on 12 July 2021.
The Chief Executive alleges that the respondents were operating boarding houses at the two premises.
The applications are filed within the Chief Executive’s enforcement jurisdiction, and, given they relate to the same respondents and the same two sets of premises, they have been managed and heard concurrently.
The Chief Executive claims that the breaches under the Residential Tenancies Act 1986 (the RTA) allegedly committed by the respondents are: 7 Bin Sun is no longer a director. a. Failing to provide written boarding house tenancy agreements to the boarders – s 13(4). b. Failure to provide written receipts for tenancy bonds and to forward bond monies to the Chief Executive – s 19(2). c. Acting to terminate boarding house tenancy without grounds – s 60AA. d. Harassment of tenant in boarding house – s 66G(4). e. Failing to meet obligations in respect to cleanliness, maintenance, and smoke alarms, and buildings, health and safety requirements – s 66I(4). f. Unauthorised entry or attempted entry of tenants’ rooms – s 66T(1)(a).
The Chief Executive alleges that all of the foregoing breaches of the RTA are unlawful acts and is seeking exemplary damages.
The respondents’ position is that: a. They allege that one of the exceptions under s 5(1)(k), (n), (s) or (y) of the RTA applies and therefore that the Tribunal does not have jurisdiction in relation to this matter. They say: i.The premises were used to provide temporary or transient accommodation and were subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation that continues to be provided under the agreement. – s 5(1)(k), (the temporary or transient exclusion) or ii. The premises continued to be used principally as a place of residence by the landlord and therefore the tenants are the flatmates of the landlord – s 5(1)(n), (the flatmate exclusion) or iii. the respondents are a sublandlord – s 5(1)(s), and
the tenancy is genuinely entered into to enable them to provide accommodation for – (A) other people for commercial gain; (B) the sublandlord’s employees; (C) persons on low incomes; (D) persons with special housing needs; or (E) persons whose disabilities mean that they need support or supervision in their housing; and
the tenancy agreement is not entered into to provide accommodation for the sublandlords or to evade the RTA or any of its provisions; and
the tenancy agreement expressly provides the sublandlord will not personally occupy the premises. (the sublandlord exclusion) or iv. The premises were used to provide emergency or transitional accommodation and – (i)The provision of the accommodation is funded wholly or partly by – (A) emergency housing assistance paid to or for the credit of a person under the Special Needs Grants Programme; or (B) any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing; or (ii)the provider of the accommodation is a person, or class of person, prescribed by regulations for the purposes of this paragraph – s 5(1)(y). (the emergency or transitional accommodation exclusion) b. Although not raised in her opening statement, Ms Sun also alleges by way of her email dated 21 June 2024 to the Tribunal that: “... the... investigation began over 12 months before the case was filed”. She says that the application is therefore time-barred. Section 124B(1) of the RTA provides that: “The chief executive may not initiate any proceedings under s 124A(1) any later than 12 months after the date on which the chief executive becomes aware of the matters on which the proceedings are based.” This ground of opposition only relates to the Takapuna property. c. The respondents deny that Ms Sun personally is liable. They say that liability, if any, rests with SRL. d. They otherwise deny the allegations that there have been breaches of the RTA. Issues
Arising out of the foregoing, the following are the issues that arise in this case: a) Issue 1: Do any of the four alleged exclusions under s 5(1) of the RTA apply? b) Issue 2: Are the applications time-barred? c) Issue 3: Who is the landlord? d) Issue 4: Have there been any breaches of the RTA and if so, what exemplary damages should be ordered, if any? Evidence
Ms Sun was assisted by an interpreter throughout the hearing. She gave oral evidence and exercised her right to ask questions, extensively cross-examining the witnesses.
A number of witnesses were called on behalf of the Chief Executive. These witnesses provided signed statements in advance. Where those parties gave evidence, the Tribunal relied on the content of those written statements as well as their additional oral evidence.
Two of the witnesses for the Chief Executive did not attend the hearings. The claims relating to them are dismissed because they did not give oral evidence and could not be cross examined.
Where I have referred to tenants in this decision, I am referring to the five tenants who gave evidence and who have been successful, being those named above. Evidence filed after the hearing
After the end of the last day of the hearing, Ms Sun submitted a number of additional documents. These included emails between herself and various employees of the Ministry of Social Development (MSD). They are dated around June 2020 to March 2022. They relate to five individuals, including one of the witnesses to be called as a tenant who did not appear. The others appear to have been tenants as well but were not mentioned in the proceedings. The emails refer to “emergency housing” in various places.
The relevant employees of MSD were not called to give any evidence and therefore could not be cross-examined on these documents.
Ms Sibinovski, the Manager of Clients Service Delivery with MSD at Takapuna, gave evidence at the hearing but she was not cross-examined on any of these documents even though they would have been available to Ms Sun when she extensively cross examined her.
I was very much disinclined to accept this late filing of evidence after what had been a four day hearing with numerous documents, a large number of witnesses and with the parties having had more than ample opportunity to obtain any evidence on which they wished to rely and produce it well prior to the hearing. The other party to all of these emails was Ms Sun, so she clearly had these emails all along and simply chose not to search for them at a time when she should have.
I gave the Chief Executive the right to make written submissions in relation to this evidence and it filed submissions.
Only in the interests of justice do I admit this material. Given no one has been cross examined on it, I will discuss the weight to be given to it at the relevant time below.
I now deal first with the evidence of the Chief Executive and then with Ms Sun’s evidence. Anthony Muagututia-Saipele
Mr Muagututia-Saipele is employed by MBIE as a Regional Operations Manager. He is attached to the Tenancy Compliance and Investigations Team (Tenancy Compliance).
At the commencement of the events giving rise to this matter, he was an Investigations Officer employed by MBIE, also attached to Tenancy Compliance. His manager then was Francisco Maiava, who also gave evidence.
On 4 June 2021, at the request of Mr Maiava, Tenancy Services opened an investigation into the Takapuna property following a complaint about maintenance issues from [Tenant 1], a tenant. Limited information was provided by [Tenant 1].
A copy of a tenancy agreement dated 22 February 2019 8 relating to the Takapuna premises was provided to MBIE by Premium Rental Property Management Limited upon request. This agreement is between Premium Rental Property Management Limited and Ms Sun. Ms Sun has signed it underneath the words “Lead Tenant signature”. There is no reference to SRL anywhere. The agreement predates Ms Sun becoming a director of SRL.
The rent payable under the agreement was $1,800 per week.
Mr Muagututia-Saipele then obtained a copy of the relevant Bond lodgement form relating to the Takapuna premises. 9 It records the tenant as “Sunny Visa Ltd Angela Sun”. Ms Sun has signed it personally. The number of bedrooms is recorded as eight.
Mr Muagututia-Saipele sent Ms Sun a request to conduct a site visit of the premises but she declined due to the then prevailing COVID-19 restrictions. Ms Sun said that she was the tenant at the Takapuna property, that there were no issues with the property and that she did not know who [Tenant 1] was. 8 AS001. 9 AS026.
On 2 February 2022, Tenancy Services decided in light of the COVID-19 restrictions, to close the matter and no further action was taken.
Mr Muagututia-Saipele explained to the Tribunal that Tenancy Services receives a large number of complaints about properties which eventually have to be closed without further action because there is not enough information to take the investigation any further. He said these types of complaints come from a variety of sources including tenants and other agencies. Not every complaint will ultimately lead to a formal investigation and then an application being filed, because there is simply not enough corroborating information to justify any further action.
An article published in Stuff on 26 February 2022 about certain alleged disturbing criminal activity at the Takapuna property once again shone the spotlight on the Takapuna property. It led to a recommencement of the investigation regarding the Takapuna property.
Mr Muagututia-Saipele said that this was not his decision, it was made by Mr Maiava, on instruction from his own manager. Mr Muagututia-Saipele’s investigation.
After the investigation was re-opened, Mr Muagututia-Saipele conducted a variety of online searches of the Takapuna property, discovering it had multiple listings on various accommodation websites and that it was being advertised and actively used as a hostel accommodation. There were a number of mixed reviews about the standard of the Takapuna property.
He also conducted other inquiries such as submitting various Official Information Act requests, including an email to MSD to ask if the property was registered as emergency or transitional housing.
He conducted a Companies Office search and learned that the Takapuna property was the registered office of SRL, with Ms Sun being the sole Director. His initial search was via a third party website and it produced only one New Zealand business industry classification code of “N722060: Travel agency service”.
During the hearing, a further company search was produced, extracted from the Companies Office website and therefore containing more accurate information. This company search revealed that the company had a number of industry classifications, being as follows: L671160 Rental of residential property H440035 Hosted accommodation H440010 Boarding house N722060 Travel agency service N722035 Tour arranging and assembling
Mr Muagututia-Saipele then spoke with Ms Sun over the telephone but she refused to comment. She referred him to a Mr Carlos Chai, who she said was her Property Manager.
Later that day, Mr Muagututia-Saipele spoke to Mr Chai who told him that Ms Sun was operating a boarding house at the Takapuna property.
Mr Muagututia-Saipele conducted enquiries with Auckland City Council and learned that the Takapuna property was not a registered boarding house.
In the meantime, on 10 March 2022, another MBIE compliance officer, Mr Nath, and Mr Maiava attended at the Takapuna property and took a number of photographs of the interior of the property. They also met with Ms Sun.
Mr Muagututia-Saipele later reviewed all these photos (discussed in further detail below) and it was at this point that he considered that he had sufficient information to consider filing an application.
On 17 March 2022, Mr Muagututia-Saipele sent a formal email to the Bond Centre to obtain information about how many bonds were lodged at the Takapuna property.
On 22 March 2022, Mr Chai gave a statement in an interview with Mr Muagututia-Saipele. During that interview, he said that Ms Sun was operating a boarding house and that she had boarders living at the Takapuna address. A copy of that statement was produced in evidence. Mr Chai has later denied having said that. Mr Chai himself did not give evidence.
On 28 March 2022, the Bond Centre advised Mr Muagututia-Saipele that it held only one bond record for the property being “Sunny Visa Ltd – Angela Sun”.
On 31 March 2022, Mr Muagututia-Saipele visited the Takapuna property and there spoke with three occupants, [Tenant 6], [Tenant 7] and [Tenant 2]. He obtained statements from those occupants.
Arrangements were then made to obtain contact details for former occupants of the property and obtain statements from two other occupants, [Tenant 3] and [Tenant 4].
On 29 April 2022, the Pinehill property was subject to an anonymous complaint regarding maintenance issues. The referral came directly from MSD. A tenant had complained about sewerage leaking into the kitchen from a blocked toilet upstairs.
This information led to the opening of an investigation into the Pinehill property.
The investigation was also assigned to Mr Muagututia-Saipele.
On 9 May 2022, a statement was obtained from [Tenant 4] regarding her occupation of both the Pinehill and the Takapuna properties.
An official request for information was emailed to the owner of the Pinehill property on 12 May 2022. A reply was received on 18 May 2022 which included a copy of the relevant tenancy agreement and bond lodgement form for that property.
The bond lodgement form recorded that the rent was $1,000 per week and that there were six bedrooms.
The tenancy agreement recorded that the tenant was Sunny Visa Ltd and that the agreement allowed for subletting. It was dated 26 July 2021. The details for “other contact address” is given as [Ms Sun’s residential address redacted].
On 3 May 2022, [Tenant 4] provided Mr Muagututia-Saipele a screen shot of her proof of bond payment to SVL and rental payments made to SVL at its bank account number.
On 20 June 2022, a statement was obtained from [Tenant 3] regarding his occupation of the Takapuna property.
On 22 June 2022, Mr Tan (another compliance office with MBIE) and Mr Muagututia-Saipele visited the Pinehill property. They did not enter the property at that time.
They then visited the Takapuna property where a site visit by MBIE officers, Auckland Council and Fire and Emergency New Zealand staff had been arranged.
Mr Muagututia-Saipele and other officers were met by Ms Sun at the property. Mr Muagututia-Saipele heard Ms Sun verbally state that she was operating a boarding house at the Takapuna property.
Mr Muagututia-Saipele entered the property, together with other officers and observed the interior of the property that day. His evidence was that: a) The individual bedrooms had numbers on the doors. b) There were 10 bedrooms in total and all of the bedrooms had locks. c) There was exposed hardwiring along the lower level with loose wiring around the ceiling lights in the kitchen area. There were notices at the front entrance and in communal areas with various handwritten rules located in the laundry and toilet area. d) There were missing smoke alarms with the brackets still fitted to the walls.
On 1 July 2022, Mr Muagututia-Saipele asked Ms Sun if she would undergo a video recorded formal interview for both properties, but she declined.
On 26 October 2022, a statement was obtained from another tenant, [Tenant 5], in relation to his occupancy of the Pinehill and Takapuna properties. Gary Beer
Mr Beer is employed with Fire and Emergency New Zealand (FENZ) as a Senior Adviser, Risk Reduction. He has been employed with FENZ for 29 years. It is part of his role to undertake inspections of buildings for fire purposes to ascertain their safety risk.
On 22 June 2022, Mr Beer accompanied staff from Auckland Council and MBIE on the combined visit of the Takapuna property.
He explained that the need for the visit was that the building had undergone a non-notified change of use from Purpose Group Sleeping Household (SH) to Sleeping Non Institutional (SM). He said that Purpose groups (SM) have a higher level of fire safety requirements for the safety of the occupants in the event of a fire.
His observations and findings were follows: a) The building did not have an approved fire evacuation scheme or procedure for the safe, prompt and efficient evacuation of the building’s occupants in the events of a fire emergency requiring evacuation. There were no escape routes with exit signs. b) It appeared that the building had indeed had a change of use, given the number of bedrooms being occupied by tenants. c) The building did not have an adequate and reliable means of warning the occupants that an evacuation was required due to the existence of a fire. It was noted that the building only had domestic smoke alarms installed. There were a number of empty smoke alarm brackets observed. d) Fire separation between occupancies and the safe path to exit did not meet the requirements of the Building Act 2004. e) The building was not provided with an emergency lighting system as required by the Building Act 2004. f) There were unenclosed or exposed connections or contacts. There were exposed wirings hanging out of the ceiling space on the ground floor and they appeared to be live. g) A number of photographs were provided showing the interior of the property. These photographs showed exposed wiring in places where there appeared to be water pipes installed – presumably for the showers in the bedrooms.
Mr Beer said that without these safety requirements, he could not be sure that the occupants of the building would be able to evacuate the premises in a safe manner in the event of a fire.
He said that the Building Act would require the premises to have an automatic fire alarm installed, being a system that can detect a fire in its early stages. He noted there was no such alarm at the property. Zorica Sibinovski
Ms Sibinovski is employed as Manager of Clients Service Delivery with the MSD, Takapuna.
She gave evidence as to: a) the arrangements between Work and Income New Zealand (WINZ) and Ms Sun/SVL regarding accommodation that was provided to WINZ / MSD clients, b) what type of accommodation was provided in this case (was it emergency/transitional housing or was it for a longer term), and c) what was the source of the funds paid to Ms Sun on behalf of the tenants (i.e. was it from the government’s Emergency Housing Fund or was it from another fund?).
Ms Sibinovski said that one of MSD’s services is that it gives assistance to those on low incomes or in receipt of a benefit. This includes the ability to borrow money for residential tenancy bonds and then repay it.
For this to occur, the relevant landlord must be registered and approved as an Accommodation Supplier in the MSD system.
She described the process for becoming an Accommodation Supplier. She explained that the process is handled by MSD’s “Central Processing Unit” (CPU). When the completed forms are submitted, it thoroughly checks all relevant details before giving approval for the landlord to be registered as an accommodation supplier.
She said that Accommodation Suppliers are registered only with respect to a specific property.
Once registered as an Accommodation Supplier, money for bond and rent in advance payments can be made direct by WINZ to that Accommodation Supplier.
Ms Sibinovski confirmed that SVL had previously been registered as an accommodation supplier with respect to the Takapuna property but was deregistered in about May 2022. She said that the reason was MSD had received so many complaints about the Takapuna property.
She said that the Pinehill property was never registered as an Accommodation Supplier or any other form of Housing Supplier.
She explained the difference between an Accommodation Supplier and an Emergency Housing Supplier. She said an Emergency Housing Supplier is a different sort of accommodation supplier. The process to become an Emergency Housing Supplier is far more complex, and is generally only given to motels and the sort of facilities that can house families. She said that Emergency Housing Suppliers are very rarely private landlords, such as SVL or Ms Sun.
Once again, in order to become a registered Emergency Housing Supplier, the relevant supplier must comply with an application process and be approved by CPU.
She confirmed that SVL had never been registered as an Emergency Housing Supplier.
She then went on to explain the role of a Transitional Housing Supplier, which is another form of housing supplier. Transitional Housing Suppliers must also be registered.
She explained that Transitional Housing Suppliers provide “wrap around” services. They provide mental health, budgeting and wellness advisors, as part of the housing supply chain. Transitional Housing is run by specific providers; they are not run by private landlords such as SVL or Ms Sun.
She confirmed that SVL and Ms Sun had never been registered as a Transitional Housing Supplier.
Ms Sibinovski said that it is not uncommon for MSD to work with vulnerable people who do not have the ability to look for premises for themselves. For those people, MSD does not actively search for properties for them and does not arrange accommodation on their behalf. On occasions, however, it might refer a vulnerable party to a specific premises by giving the party the contact details of the landlord.
She said that the Takapuna property was well known at MSD Takapuna to be a boarding house and indeed it was the only boarding house in Takapuna. She said that the landlord was known to be Angela Sun.
Ms Sibinovski explained that 146 grants in total were made to SRL with respect to the Takapuna property. These grants were all for bond/rent in advance and occasionally rent arrears.
Of those 146 grants, MSD has subsequently discovered that seven were mistakenly categorised as “emergency grants” when they were paid out. She said this was an error and that these payments ought to have come from the accommodation fund.
She put the error down to it being a very difficult time because these payments were made during the COVID-19 pandemic when there was high demand for housing and for people to be housed quickly and appropriately.
Under extensive cross-examination, she remained firm that MSD does not manage the tenants in the properties that are registered as Accommodation Suppliers. She said that is for the landlord or property owner to do. Douglas Edward Glazebrook
Mr Glazebrook is a Senior Project Specialist at Auckland Council. He has held that position for around 8 years. It is part of his role to manage projects in relation to non-compliant properties. He manages a list of properties and, each month, along with other Government agencies including FENZ, he will visit several properties to assess their safety and compliance. Most properties that are visited are unconsented and non- compliant.
He was first notified about issues with the Takapuna property by the Police. The Police told him that tenants of that property were causing behavioural issues and that it was being operated as a boarding house.
He produced Council records regarding the Takapuna property. These records showed the property to be a residential dwelling, with no notification of any change of use and no building consent in place to convert the property was in evidence.
Council therefore had considered the property to be a residential dwelling to that point.
There was no building warrant of fitness and no compliance schedule for the building and so the property was scheduled for a visit.
On 7 June 2022, Mr Glazebrook sent a notice to the owner of the property to advise of his scheduled visit.
On 22 June 2022, Mr Glazebrook attended the Takapuna property with the officers from FENZ, MBIE and other Auckland Council staff.
Mr Glazebrook took a video and sound recording of this visit.
The video was played for the Tribunal and was about 16 minutes long.
It shows Ms Sun meeting Mr Glazebrook and others at the site. She confirmed her identity but objected throughout to her image being videoed. After some heated conversations between the parties at the outset, the visit proceeded.
Curiously, there were no tenants at the property on the day in question. Mr Glazebrook later learned that Ms Sun had told them not to be there.
As noted above, during the video, Ms Sun can be heard describing the property as a boarding house. She said there were ten rooms but only four tenants were living there. She said she did not live there. She said the people living there all signed a flatmate agreement.
Mr Glazebrook described the property as a large, two storey house. There were a number of bedrooms on the ground floor and top floor; ten bedrooms in total. All had numbers written on the doors.
The video that was played to the Tribunal depicted the following: a) Ten bedrooms which all had numbers on the doors. b) No fire stop doors. c) A small kitchenette area downstairs d) Shared facilities such as bathrooms and a kitchen e) A number of handwritten signs around the property, for example, in the bathroom and the front entrance way, with instructions to occupants and various house rules. f) The rooms were all locked, except one, which had a double bed inside it. g) There were no fire or smoke doors at the top of the stairs and a number of intertenancy walls had service penetrations in them, without the required fire collars or intumescent material, increasing the risk of the spread of fire. h) It appeared from the placement of various piping that additional showers had been installed in bedrooms, without any building consents. i) There were a number of loose and exposed wires hanging from the ceiling. j) At least one of the rooms had a noticeable gap at the top of the door, and down the side, increasing the risk of spread of fire. k) On one door, there was a sign that said “this door will be locked at 10pm every night from Monday 6 Dec. Kia ora.” Mr Glazebrook said that this was a tenant’s room and had to be locked at night because the tenants were noisy and kept others awake. So the intent was to keep other people out. l) While there were a few types of smoke alarms situated in the building, Mr Glazebrook said these are only suitable for use in single residential properties. The building had no compliant fire alarms, no emergency lighting, no signage (including exit signs) no fire and smoke separation and no emergency lighting. There was also no emergency evacuation plan evident.
A number of photographs were also provided to the Tribunal. These also showed wires hanging loose and gaps around doors. Various signs (handwritten) are posted with instructions for the occupants.
The original plans for the Takapuna property were produced to the Tribunal. These show what appears to be premises with a series of four rooms labelled as offices plus other rooms downstairs and residential accommodation upstairs containing three bedrooms, a dining/living area and bathrooms.
It was clear to the Tribunal from viewing these plans that the rooms marked as “offices” and other rooms downstairs have been converted to bedrooms and that at least one internal wall must have been installed upstairs to create an additional bedroom on the second floor.
Mr Glazebrook formed the view after inspecting the property that it was definitely being operated as a boarding house accommodation. He defined this as a property where each room was rented out separately with the tenants having the right to come and go from the bedroom, having the ability to lock their bedroom door. He contrasted this with a situation where people jointly reach a decision to go flatting together.
He explained that from Auckland Council’s perspective it considers there to have been a change of use if individual rooms of this number are being rented out to different tenants. It is primarily the change in use that Auckland Council considers a significant factor. It was his view that there has been a change of use with respect to this property.
Following this visit, Mr Glazebrook arranged for a Dangerous Building Notice dated 4 August 2022 to be delivered to the owner, Lud Holding Ltd. He said that the main reason was to do with the exposed wires and the lack of proper fire safety precautions. He gave evidence to the Tribunal that the building simply does not have an adequate means of telling the occupants if there is a fire. There are only domestic fire alarms in situ with this premises and the building requires a fire alarm system.
The Dangerous Building Notice contained, under the heading: “reasons why building is considered dangerous”, the following: Auckland Council is satisfied that the building identified above (the Building) is dangerous for the purposes of section 121(1) of [the Building Act 2004] in that: ... (b) in the event of fire, injury, or death to any persons in the building or to persons on other property is likely. ... The Building is considered dangerous because: The Building at 6 Esmonde Rd Takapuna is a two Storey house. It is currently shown on Auckland Council records as a single residential property with three bedrooms, and conference room, and offices. The current approved use is SH (Sleeping Single Home). An inspection was carried out on 22 June 2022 by Auckland Council compliance officers, Fire and Emergency (NZ), fire safety officers and staff from MBIE (Tenancy). At this time, the property was being used as a boarding/ accommodation house with at least 10 bedrooms and shared areas such as kitchen, laundry and bathrooms. As a result of the visit on 22 June 2022 FENZ provided a report dated 23 June 2022 to Auckland council confirming the following fire safety deficiencies: •The Building does not have an adequate and reliable means of warning the occupants that an evacuation is required due to the existence of a fire. While there was some domestic type of smoke detectors the building requires a type 5 automatic fire alarm system •There are several penetrations through the walls and ceiling linings of the ground floor which will allow for the uninhibited spread of smoke and fire. Emergency lighting has not been installed in the safe path escape from the upper level of the building to ground floor final exits. •Exposed wiring hanging out of the ceiling space on the ground floor may be live and pose a danger to occupants and /or cause of fire. •The Building does not have any exit signs installed to indicate escape routes of the Building in case of the outbreak of fire. •The Building does not have an approved evacuation scheme or procedure for the safe, prompt, and deficient evacuation of the buildings occupants in the event of a fire requiring evacuation. One has not been lodged with FENZ. •The use of the building has changed from Purpose Sleeping Household (SH) to Sleeping Non Institutional (SM). Purpose groups SM have a higher level of fire safety requirements for the safety of occupants in the case of a fire •as a result of the above finding FENZ and Auckland Council have considered the Building as dangerous in terms of section 121(1)(b) of the Building Act 2004.” Francisco Maiava
Mr Maiava is a Regional Operations Manager employed by MBIE. At the date of the property inspection referred to in his evidence, he was attached to the Compliance team with Tenancy Compliance.
He was one of two MBIE staff who visited the property on 10 March 2022. The other staff member was Mr Nath, another compliance officer.
This was the first site visit of the Takapuna property conducted by any compliance officers to Tenancy Services.
He explained to the Tribunal that the reason for the visit was to conduct an inspection, following a complaint that Tenancy Services received. The complaint was about the house operating as a boarding house and that it was non-compliant with healthy homes standards.
Mr Maiava and Mr Nath met Ms Sun at the property on 10 March 2022. She allowed both officers to enter the property. Whilst there, Mr Maiava saw no tenants there.
Mr Maiava observed that Ms Sun changed her story or appeared confused a few times during the course of this visit. For example, she initially said that there were eight people living at the property. She then said there were only six. Also, she initially said that she lived at another address but then said that she did live at the Takapuna property, although declined to tell Mr Maiava which was her room.
He asked to see the tenants and she said they were all sleeping.
She said there were ten bedrooms in total at the property, six downstairs and four upstairs.
Mr Maiava noticed no fire exits and no fire evacuation procedures displayed. He noticed there were various sets of house rules in the bathrooms and in other areas. He noted that all rooms had locks and were numbered.
He formed the conclusion from this visit that Ms Sun was operating a boarding house. He reached this conclusion because of the number of rooms and based on the existence of “house rules”. Also, all of the rooms all had numbers and locks on them. This was consistent with a boarding house from his assessment.
He said that Ms Sun told him that she had flat sharing agreements with the tenants. Santu Nath
Mr Nath was a compliance officer with Tenancy Compliance, although he no longer performs that role.
On 10 March 2022, he inspected the Takapuna property with Mr Maiava. He took a number of photographs of the property.
He met Ms Sun and she invited him into the property and provided permission to take photographs.
He also observed: a) All rooms were numbered. b) There were ten bedrooms in total. c) There was only one smoke alarm downstairs. He found another smoke alarm in the kitchen area upstairs. The smoke alarm that was downstairs was not in working condition. d) He said that there was no extractor fan or range hood in the kitchen. e) He saw six rubbish bins in front of the property. f) There were various other smoke alarm brackets located around the property. g) He observed various sets of what he described as “house rules” located at different parts of the property: • There was a welcome board as soon as you entered the property including the name and telephone number of Angela Sun. It included instructions including “front door to be locked & closed after 10pm”. Wi-Fi instructions were also provided on the welcome board. • One of the bathrooms had two hand written sets of instructions on the walls, as follows: “this toilet has a new seat now! Make an effort to bathroom clean for all tenants to use!!!” • In the kitchen: “please do not dump dirty dishes and rubbish in this area for someone else to clean. Don’t be lazy.” • A notice in the laundry regarding use. • A notice in the bathroom upstairs which said: “Please keep the shared toilet tidy and clean” h) Lives wires hanging down from the ceiling. i) No red light was flashing on the smoke alarm upstairs. This indicated to him it was not working. j) Miscellaneous rubbish in the backyard including an old bed frame and an old heater.
Mr Nath said that even if this had been a residential accommodation and not a boarding house, then there should have been at least six working smoke alarms at the property. Edwin Tan
Mr Tan is also a compliance officer with Tenancy Compliance.
He visited both the Pinehill premises and the Takapuna premises on the same day, being 22 June 2024. He accompanied his manager, Mr Muagututia-Saipele.
He gave evidence that the Takapuna property was neglected, with wear and tear on the outside of the building.
His observation was that it looked like a boarding house, based on the rooms being numbered outside and there being house rules on visual display.
He also heard Ms Sun describe the property as a boarding house. [Tenant 1] (tenant number 1)
[Tenant 1] said she was a tenant at the Takapuna property for only a few weeks in about 2021.
She first learned of the Takapuna property from a staff member at Work and Income New Zealand (WINZ). The staff member told her that the Takapuna property was a boarding house and to meet the landlord, Ms Sun, at a specific time and date at the property so that she could inspect it.
[Tenant 1] went to the property at the suggested time and date but Ms Sun was not there. Instead, she was met by another tenant who showed her to her room.
[Tenant 1] said there was no discussion about any tenancy agreement and she was given none. She said that she was told there would be a bond.
She had her own room and was given a key to her room. There was a communal kitchen and some shared bathrooms.
At any one time, she said there were approximately ten people living at the property.
[Tenant 1] saw Ms Sun visiting the property only twice. She said that Ms Sun did not live at the property. In her written statement, she said that Mrs Sun was known to only come to the property when there was a problem with a tenant not paying rent.
There was no working smoke alarm inside her room.
Her tenancy came to an abrupt end following an altercation with two occupants of an adjoining property who she described as Ms Sun’s “managers” of the Takapuna property. Some food went missing from the fridge and it led to an argument. The “managers” told her that she had to vacate the premises straightaway and so she did.
After [Tenant 1] left the property, she noticed that a further weeks rent was taken from her benefit by the landlord. She has never got this back, despite attempting to contact Ms Sun numerous times about it. She estimated she had to call Ms Sun over 50 times.
[Tenant 1] said that she never got a bond receipt from Ms Sun. She was shown a bond receipt document with her name on it, produced by Ms Sun, and said that she never received or had seen that document.
In her statement, [Tenant 1] said that there was no fire evacuation procedure in place, no fire alarms, smoke alarms or fire exits. In the event of a fire, there was no escape plan.
Ms Sun said that [Tenant 1] “was a flatmate who officially stayed at the property for two weeks with mutual agreement from both parties”. 10 She said that [Tenant 1] was there on a trial basis only and that her tenancy came to an end after she got into significant conflicts with other flatmates.
In her written statement provided on 14 August 2024 Ms Sun stated: “I was forced to issue a trespass order”. She considered she had good grounds because of the actions of [Tenant 1], including her view that she was causing disruptive shouting matches with other flatmates, using drugs and stealing items from the property.
In her oral evidence, Ms Sun gave a different version of events about whether she was aware [Tenant 1] had received a trespass notice, saying: “I did not know about the trespassing”.
Ms Sun did not call any evidence from her “managers” to corroborate her version of events about the basis of the ending of [Tenant 1]’s tenancy. [Tenant 2] (Tenant number 2)
[Tenant 2] moved into the Takapuna property on 4 January 2022 and lived there until around May 2022.
Like [Tenant 1] he was also a WINZ beneficiary and it was WINZ staff who initially suggested the possible availability of the Takapuna property. He was wearing an ankle bracelet the time and for that reason had difficulty obtaining accommodation.
He was given the phone number of Ms Sun and spoke to her over the phone.
He was then shown the Takapuna property by Ms Sun and allocated a room. The room had the number one on its door and a lock. Only he and Ms Sun had the only key for his room.
[Tenant 2] understood Ms Sun to be the landlord because this is how she described herself. He said that Ms Sun never lived at the property.
The rent was two weeks in advance ($700), and with a bond of $600. He said that this was paid to Ms Sun direct by WINZ.
He did not sign any tenancy or other agreement, but recalls Ms Sun saying she was going to bring him one but did not have time to print it out.
[Tenant 2] could not change his room without the agreement of Ms Sun. There was no working smoke alarm in his room. Initially there was, but then it stopped working. 10 See her written statement dated 14 August 2024.
He said that in total there were ten bedrooms of the property and at any given time there were seven tenants living there, during the time he resided there.
He said that what upset him the most during his time at property was that Ms Sun would enter his room without notice. On one occasion she came into his room when he was taking a shower.
Because he is a private person, he found this upsetting.
The other upsetting aspect of the premises was that Ms Sun would get into arguments with other tenants. He would find this very overwhelming.
[Tenant 2] said that Ms Sun never lived at the Takapuna property.
The property was in a neglected condition. Some of the windows did not have a latch to lock them. Some maintenance was required. When he first moved in there were no lights in the bathrooms.
On one occasion, [Tenant 2] witnessed the bedroom of another tenant, [Tenant 4], being “trashed”. All her belongings were thrown all over the room.
[Tenant 2] saw Ms Sun also enter another tenant’s room a few times.
He said that Ms Sun was at the property, on average, weekly. If someone did not pay their rent, she would come looking for them.
In her written evidence, she said that [Tenant 2] signed a flatmate agreement. This was not produced. [Tenant 3] (tenant number 3)
[Tenant 3] was initially introduced to the Takapuna property by his sister. He had been living on the street and his sister helped him to find a home.
[Tenant 3]’s sister dealt with Ms Sun to get him a room.
He recalled meeting Ms Sun at the property and she showed him around. He understood Ms Sun to be the landlord. She never described herself as his flatmate and she did not live at the property.
[Tenant 3] began living at the Takapuna property at the end of January 2022. The weekly rent was $350 per week. He arranged through WINZ to pay $1,300 in advance, being bond of $600 and two weeks rent in advance. The rent was also paid by WINZ.
He did not get any bond receipt in relation to his bond.
He did not get given any tenancy or other agreement.
[Tenant 3] said there were around ten bedrooms in total in the house. There was a communal kitchen and other shared facilities.
In his statement he said there were six people living at the house while he was there and that another two moved in just before he moved out.
His room had a number on the door, number one. He was allocated this room by Ms Sun
The room had a lock and only [Tenant 3] had the key.
He recalls witnessing Ms Sun treating other tenants “poorly”. He said in her statement that she would be “abusive towards them, by the way she talks to them and because she had keys to all the rooms she would just go into their rooms and search through all the belongings.” In his statement he said he recalled her doing that to a tenant called [Tenant 6] who had a disability.
In his statement he said he recalled her treating another tenant, [Tenant 4], the same way and that she was abusing her for not paying the rent. He recalled seeing Ms Sun going through all her belongings and throwing some of her things in the rubbish “for no reason other than she had the power to treat us like that as we had nowhere else to go”.
He noticed Ms Sun being nasty to other tenants. He recalled her once shouting at [Tenant 6] and saw her picking up a clothes rack and throwing it at [Tenant 6] and it hit him on the side of his body.
Under detailed cross examination from Ms Sun, he said he recalled her saying to tenants: “You owe me money, why you not pay me rent!”.
He said in his statement that for these reasons he tried to not get on her bad side because he found her nasty and he had nowhere else to live.
He moved out at the end of April 2022 [Tenant 4] (tenant number 4)
[Tenant 4] was also a WINZ beneficiary. She was looking for accommodation and was told by WINZ to meet the landlord, Ms Sun, at the Takapuna property.
She was met in the driveway of the Takapuna property by Ms Sun, who then instead took her to the Pinehill property. Ms Sun told her she had to go to the Pinehill property because she “was not mental health”.
[Tenant 4] therefore moved into the Pinehill property on 3 February 2022.
[Tenant 4] asked Ms Sun if she needed to sign any paperwork but Ms Sun said no. She received no documentation such as a bond receipt.
[Tenant 4] said that Ms Sun did not live at the Pinehill property. She said that the living arrangements were that all facilities were shared. She said that this was a really nice house and that five or six people lived there. She also said that Ms Sun told her not to mention to anyone that she had stayed at the Pinehill property. She stayed there for three weeks before Ms Sun said she had to move to the Takapuna property “because it is a WINZ house.”
[Tenant 4] said that there were quite a few people living at the Takapuna property, approximately five or six. She thought there were maybe nine bedrooms.
Like the other tenants, she said that Miss Sun did not live at the Takapuna property. She also said that there were no fire evacuation procedures.
There was a lock on [Tenant 4]’s bedroom door and she was given a key. Ms Sun also had a key. She was not able to change her room without getting permission from Miss Sun.
There was bond and rent in advance that was to be paid, of $1,300. The weekly rent was $350. This was paid by WINZ direct to Ms Sun.
Whilst at the Takapuna property Ms Sun changed her room. [Tenant 4] said her original room had a lot of holes in it. The second room she moved into did not have a key. On one occasion she returned to her room and her belongings had been thrown everywhere and the frames of photographs of her children were broken. She says the room was “trashed” by Ms Sun. She was not sure why Ms Sun did this.
Because her room had no lock other people could come into her room and remove her belongings.
One day, she claimed that Ms Sun threw a tantrum and said she could no longer stay there, claiming that [Tenant 4] had not paid the rent.
She took [Tenant 4] to the WINZ office and they said the rent had indeed been redirected to her. However, Ms Sun said [Tenant 4] had to leave anyway.
[Tenant 4] lived at the property for approximately a couple of months before moving out on or about 17 March 2022.
Ms Sun said she did enter [Tenant 4]’s room but this was because she thought she had moved out at that time and she claims she was told by WINZ to put her belongings in storage.
She claims that she found powder in her room and considered that she was using drugs. She also claims that there were allegations of theft of property. She denied any abusive conduct and claimed that [Tenant 4] had stopped paying rent and disappeared. [Tenant 5] (tenant number 5)
[Tenant 5] was a tenant at the Takapuna property in around August 2021 for approximately two months.
The weekly rent was $350. Bond was $700 bond plus one week rent in advance, paid by WINZ before moving in.
There were about five or six other tenants at the Takapuna property at the time he moved in, but more bedrooms than that were available at the property.
Everyone had their own bedroom that was assigned to them by Ms Sun. [Tenant 5]’s room had a lock and Ms Sun was the only other person who had a key.
There were shared facilities such as the kitchen and bathrooms.
[Tenant 5] was upset that he had no privacy and believed Ms Sun would go through his belongings. He would notice things were moved and put in different places. She was the only other person who had a key. He also noticed that things were removed from his bedroom and produced a list of items that went missing.
Like the other witnesses, he said that Ms Sun never lived at the Takapuna property.
During the course of the tenancy, Ms Sun told him that she thought he would prefer to live at another property she had, being the Pinehill property.
He then moved into that property. He thought that there were six or seven rooms at that property, with about six or seven people living there. An email was produced 11 from [Tenant 5] stating there were six bedrooms at the property with eight people living there.
He said Miss Sun did not live at that property, either.
He produced a copy of a document during the hearing that had not been seen before. 12 It is a document headed “flat/house – sharing agreement”.
It records that the parties have a flat sharing agreement. It records the commencement date being 21 April 2022 with rent of $350 per week and $600 payable to the “head tenant”. Angela Sun is named as the head tenant. It relates to the Pinehill property.
[Tenant 5] was assigned room number four at the Pinehill property and there was a number on the door. Every bedroom had a shower and then there were shared common facilities.
There was a lock on the door at that property as well and Miss Sun was the only other person who had a key.
[Tenant 5] stayed at the Pinehill property for about two months.
Throughout this period, his rent was paid to Ms Sun by WINZ.
In around June 2022, [Tenant 5] spoke to Tony from Tenancy Services (Anthony Muagututia-Saipele). Mr Muagututia-Saipele informed him that Tenancy Services was investigating Ms Sun. When Ms Sun found out about this, [Tenant 5] claimed she got angry and told him he had to move out straight away.
[Tenant 5] said that he never received any receipt for the bond. 11 AS052. 12 Exhibit A.
Ms Sun denies telling [Tenant 5] he had to move out after finding out he had spoken to Tenancy Services. The respondent’s evidence
Ms Sun claims that all rental activities with respect to both properties were conducted by SRL and not her personally.
Ms Sun is now a qualified Real Estate Agent but in 2020, she was working for SRL. She said she became its director on 17 July 2020 because Bin Sun no longer wanted the company. He offered it to her and she wanted to take over and continue operating it.
On 28 September 2022, Ms Sun arranged for Sunny Visa Ltd to have its name changed.
As noted above, the industry codes for SRL referred to on the Companies Office website record: L671160 Rental of residential property H440035 Hosted accommodation H440010 Boarding house N722060 Travel agency service N722035 Tour arranging and assembling Ms Sun said she could recall seeing those codes when she was changing the name of the company on 28 September 2022, but she said that she could recall there was no ability to only choose one so all were selected.
Ms Sun said she had not previously been a landlord but had rented properties herself as a tenant and explained that she likes to experience living in different houses. She said that she was aware that landlords have an obligation to lodge bonds with the Bond Centre. The rental of the Takapuna property
Ms Sun said that she rented this property on 22 February 2019 because she wanted to operate “Airbnb” style accommodation. She also intended to live there herself. She described the property as being a big house with three or four rooms available to be rented out.
She now says that SRL was essentially the tenant of this property but the tenancy agreement predates her becoming the director of SRL.
A floorplan of the Takapuna property was produced in evidence, 13 and an additional copy was produced by the Chief Executive recording the ten room numbers that were placed on the doors of each of the rooms, evident from the photographs that were taken and produced in evidence. 13 AS045.
The Tribunal took Ms Sun to this floor plan layout and she identified her bedroom on the top floor as bedroom seven. On further questioning she said that she slept in different rooms at the property but never on the downstairs level.
In response to questions about whether there were locks on the doors at the property she said she could “not recall”.
She was adamant that there were only three or four bedrooms in the property. She could not recall how many people lived at the Takapuna property at any one time.
She was also adamant she did not place the numbers on the doors and said she had no idea why the numbers were there. She suggested that there were “two Māori ladies” who put the numbers on the doors. She explained that they lived at the adjoining property and that she asked them to keep an eye on the house. In answers to questioning as to whether they were her managers of the property she added “I don’t think they were my managers”.

Did Ms Sun live at the Takapuna or the Pinehill properties?

Ms Sun said different things during the hearing about whether she lived at the Takapuna property or any other property for that matter. She was sometimes careful to avoid saying she lived anywhere but would say “I had a room there” when referring to both the Takapuna property and the Pinehill property. She would also say that she liked to live or stay at different properties at the same time.
Initially she said that after the COVID-19 lockdown in March 2020 she could not recall if she continued to sleep at the Takapuna property. She said that during the lockdowns she stayed at her ex-partner’s place but that after the lockdowns she claimed she returned to the Takapuna premises to sleep and then continue to reside at the Takapuna property for “most of the time” until January 2022 when the tenancy came to an end.
Ms Sun pointed to evidence of where she was living that she would put the Takapuna address down as her residential address for instance on her bank statements and her car registration. She provided some corroborating evidence of this.
In response to Mr Hilario, Counsel for the Chief Executive, putting to her that the Takapuna tenants had all said she did not live at the Takapuna property, she said “I don’t believe their statements”.
She said that she had her belongings at the Takapuna property across several rooms and referred to belongings that were stored in an outdoor sleepout. She said that she would sometimes stay in the sleepout.
A photograph produced of that sleepout was put to her and it displayed the contents assembled as a storage /junk area rather than a living or bedroom area.
Because it seemed that Ms Sun had different rooms at different properties, I asked her during her closing whether it was it her position that because she “had a room” at a property, she was therefore living there? Ms Sun had difficulty answering that question, even though it was asked of her several times, but she insisted: “every house I have a room I live in”.
Regarding the Pinehill property, she also insisted that she “had a room” there and therefore considered that she was living there. She offered little by way of any corroborating evidence in that regard. Rental Activities at the Takapuna property
Ms Sun was initially operating an Airbnb accommodation at the Takapuna property.
Things of course drastically changed in March 2020 because all tourism and holiday style accommodation dried up. Ms Sun had a large weekly rental payment that would be falling due.
She claims she was directly approached by WINZ in 2020 to ask if she was able to accommodate any of their clients following the COVID-19 pandemic. She was very willing to do so. It was a means to generate some revenue.
Ms Sun was already familiar with accepting guests from WINZ because in 2019 she had been approached by a WINZ beneficiary who wanted to stay at the Takapuna property. They suggested she become registered as an accommodation supplier so that their accommodation payments could be made by WINZ.
Ms Sun produced an email from MSD dated 6 June 2019 confirming that SRL was registered as a supplier.
Ms Sun said that she was told by WINZ in 2020 that she did not need to apply for any additional status. She claims that she called the CPU call centre and they told her that she was already registered as a supplier and that nothing further was required.
In response to Ms Sibinovski’s evidence that neither Ms Sun nor SRL were ever registered as an emergency or transitional housing supplier, she said that Ms Sibinovski was lying.
In her opening statement Ms Sun said that all payments she received for the “WINZ clients” were made through WINZ’s emergency housing account.
She did not produce any bank statements for either herself or SRL to corroborate this, despite the Tribunal requesting her to do so.
Ms Sun’s case is that she did not need to put in place tenancy or flat sharing agreements with respect to the Takapuna property because what was being provided was emergency/transitional housing and therefore the provisions of s 5 of the RTA meant the RTA was excluded.
However, produced in her own evidence was a “flat/house – sharing agreement” (of the form typically seen by the Tribunal). It is between Ms Sun as “head tenant details” and “[Tenant 7]”. The reference to [Tenant 7] appears to be a reference to [Tenant 7], one of the parties who gave statements but who did not attend the hearing.
Ms Sun said that after SRL was deregistered as an accommodation supplier in May 2022, all tenants from that point forwards at the Takapuna premises signed flatmate agreements.
The flatmate agreement she produced however with [Tenant 7] was signed on 4 March 2022. This predated SRL being deregistered as an accommodation supplier.
Regarding the bonds, she accepts that she received bonds with respect to all of the tenants who have given evidence. She does not deny that she did not send these through to the Bond Centre but says she was not aware she needed to do so. The book of Bond receipts
Ms Sun was adamant that she gave all of the tenants bond receipts. Included in the bundle of documents are photocopies of various bond receipts for [Tenant 2], [Tenant 4], [Tenant 7], [Tenant 5], [Tenant 1] and [Tenant 3].
She said she kept a book of all bond receipts. She then provided the Tribunal with the original of that book. It is a small book of 50 pre-printed forms headed “cash or rent receipts”. There are two pages for each form number (a white copy on top and a yellow copy underneath) and a carbon paper is provided so that a copy can be kept.
Ms Sun was very reluctant to leave this book with the Tribunal, claiming that she needed it for her tax records. 14
The Tribunal arranged for the original to be scanned and a copy was provided to the parties. The full receipt book including all of the incomplete pages were scanned as well.
This book shows that the entries Ms Sun has made are not always in chronological order. The first entry is 12 January 2020 and is not completed. The yellow copy of the same form number has the date of 22 April 2021 and relates to bond for [Tenant 1] of $600. The next form is dated 12 January 2020 and is received from SRL for $17,500. The receipt book records that this was for rent.
There is then a second entry for [Tenant 1], being one of the final entries in the book. It is also dated 22 April 2021 and is also for $600. It immediately follows an entry recording the bond for [Tenant 3] dated 25 May 2022.
There are other references to bonds for other parties. Ms Sun frequently records that the monies are received from “Emergency Housing NZ”. 14 The Tribunal invited her to take a photograph of each page of the receipt book for her records and the Tribunal then retained the original so that it could make a detailed examination.
There are also two entries for [Tenant 5], both dated 11 April 2022. One does not record any amount and the second records monies received from “Emergency Housing NZ” for bond.
Wherever there is a bond received it is always in the amount of $600.
Ms Sun explained on cross-examination that the receipts were not chronological because she started in the middle of the book and then went backwards. She said: “I wrote it all over the place”. Ms Sun’s response to allegations by the “tenants”
As was noted above, Ms Sun denied the allegations made against her by the tenants. She denied ever entering anyone’s room without permission and she denied “trashing” the room of [Tenant 4]. She says she not only lived at the Takapuna property most of the time, but that she was there almost daily fixing things up and keeping the premises tidy.
Regarding the “house rules” at the Takapuna property, she said that she made one of the signs on display at that property, being the sign in entranceway but others were made by other tenants. She said that these were simply instructions to people living there to keep the premises tidy. The Pinehill property
Ms Sun became aware of the Pinehill property because in her role as a real estate agent she sold the property to the then owner, [name redacted].
She was adamant there were only five bedrooms at the property, explaining to the Tribunal also that “I have a room there.”. She went on to explain that sometimes she stayed there but when pressed, she could not recall how many nights a month she would stay there. She said, “I really can’t remember.” As with her evidence regarding whether she lived at the Takapuna property, she was very vague and defaulted to a lack of recollection whilst yet insisting “I have a room there”.
A plan of the property was produced showing five bedrooms upstairs and a large study downstairs. She said the study was never used as a bedroom.
She said that the tenants of the Pinehill property were all asked to sign flatmate agreements. Because she was living at the property, she therefore took the view that the RTA was excluded. She did not produce any of those flatmate agreements to the Tribunal, other than one for [Tenant 5], dated 21 April 2022.
She said that there were no numbers on the bedroom doors and could not explain why the Bond lodgement form said there were six bedrooms. She could not recall if the handwriting on the Bond lodgement form was her own, but conceded it did look like her handwriting.
She confirmed that her current residential address is [address redacted], being an alternative address of the tenant listed on the tenancy agreement for the Pinehill property, but remained firm that she was actually living at the Pinehill property by virtue of having a room there (bearing in mind her earlier evidence that she was mostly living at the Takapuna property).
She insists that all the tenants are lying when they say she never lived there. Issue 1: Does the Tribunal have jurisdiction to hear this case – do any of the four alleged exclusions apply?
Before the substantive issues between the parties can be dealt with, I must decide whether I have jurisdiction.
Questions of jurisdiction are fundamental and must be decided before I can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then I cannot proceed to hear the case.
The RTA applies to every tenancy for residential purposes. There are a number of exclusions listed in s 5.
Section 10 of the RTA provides that where any party contends the RTA does not apply, the burden of proof is on that party. Therefore, the burden of proof that the RTA is excluded by virtue of any of the exclusions under s 5(n) lies with the respondents. This means it is for the respondents to prove on the balance of probabilities that an exclusion applies.
Therefore, it is for the respondents to prove that what they are claiming is more probable than not.
Independent witnesses called to give oral evidence, and corroborating documents like emails and photographs, can be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke, in practical terms this means that: 15 ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I now deal with each of the alleged exclusions. 16 Issue 1.1: Does the temporary or transient housing exclusion apply?
Section 5(k) of the RTA provides that the jurisdiction of the RTA is excluded: where the premises— 15 Kaipo v Clarke DC Waitakere TT 233/02, 12 April 2002 at [7]. 16 Mr Hilario pointed out the inconsistency in relying on all exclusions at once, given that the wording of each of the exclusions suggested only one situation can be true at any given time. Nevertheless, I consider it appropriate to deal with each exclusion. (i) are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and (ii) are subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation that continues to be provided under the agreement:
As noted above, Ms Sun has the burden of proving that the premises were intended to provide temporary or transient accommodation, in terms of s 5(k).
Self-evidently, the relevant time for determining whether the exclusion applies is when the alleged tenants that are the subject of these applications commenced their occupation of the premises.
Ms Sun may well have been operating an Airbnb style accommodation prior to the advent of the COVID-19 pandemic (although I note that she provided no corroborating evidence of that), but by 2020, things had changed and I consider that there is inadequate evidence produced by her to prove that she was providing temporary or transient accommodation, such as that provided by hotels and motels. Nor was there any evidence of any agreement with the tenants for such purposes.
Indeed, there were no written tenancy agreements with any of the tenants, 17 and none were produced.
In any event, temporary or transient accommodation under section 5(1)(k) of the RTA refers to accommodation that is ordinarily provided for periods of less than 28 days at a time. Although some of the tenants appear to have stayed for less than then, this seems to have been because their agreements were brought to an end by Ms Sun (I will return to this below) and not because there was any specific agreement that the accommodation would be temporary.
The respondents have not proven that the temporary or transient exclusion applies. Issue 1.2: Does the flatmate exclusion apply?
Section 5(1)(n) of the RTA states that the RTA is excluded: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
Section 5(1)(n) has an exclusion for boarding houses, so that must be the first matter I determine. If the premises are a boarding house, then the exclusion cannot be relied on at all. 17 The "flatmate agreement" that [Tenant 5] had was not a tenancy agreement but a purported flat sharing agreement.
A boarding house is a separate category of tenancy and a boarding house is defined in the RTA as: 18 • residential premises with one or more boarding rooms, along with • facilities for communal use by tenants, and • occupied or intended by the landlord to be occupied, by at least 6 tenants at any one time
A boarding house tenancy means a residential tenancy in a boarding house: a. That is intended to, or does in fact, last for 28 days or more; and b. Under which a tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house.
In the High Court decision of Karmarkar v Pandem, Van Bohemen J set out the relevant questions when deciding whether the tenancy is a boarding house tenancy as follows: 19 [34]In my view, it is possible to make sense of the definitions by asking the following questions: (a)Does the house contain one or more bedrooms along with facilities for communal use by the tenants? (b)Is the house occupied or intended to be occupied by 6 or more tenants? (c)Is the tenancy intended to, or does in fact, last for 28 days or more? (d)Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use? (e)Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants?
The Court stated that if the answer to all of the questions was “yes” then the tenancy was a boarding house tenancy and the rest of the provisions of Part 2A of the RTA would apply.
His Honour acknowledged that applying these questions will not always be straightforward. Questions of judgment can arise as to whether what is set out in the tenancy agreement reflects the reality of how a tenancy operates, particularly with respect to the last two questions. The Court further noted that if the five questions were answered in the affirmative “then it should not be necessary to enquire into whether the tenancy has the attributes required under ss66C – 66Y as a matter of law.” 18 Section 66B of the RTA. 19 Karmarkar v Pandem [2018] NZHC 693 at [34].
In applying the law to the facts, I deal first with the Takapuna property and then with the Pinehill property. The Takapuna property
I have little difficulty in concluding that these premises were, from March 2020 (when the COVID-19 pandemic struck), operating as a boarding house.
The tenants were all given keys to and the right to occupy their own rooms. Ms Sun had the other key. Ms Sun was in charge of who got which bedroom. Other facilities, such as kitchen, dining, bathrooms and laundry were shared.
There were numbers on the bedroom doors. The photographic evidence bore that out. Ms Sun insisted she was not sure how those numbers got there but the numbering system for bedroom doors is consistent with the premises being operated as a boarding house. In this regard, I fully accept the evidence of Mr Maiava, who commented on this aspect being indicative of a boarding house in operation.
There were house rules displayed that the occupants were meant to obey. Ms Sun denied that she had placed all of those signs there, but she clearly knew about them. In one of her text messages that she produced for the Tribunal to [Tenant 4] she said, “I remember I told you when you move in about the house rules....”. She is reminding [Tenant 4] of the need to comply with them.
The premises contained ten bedrooms and I find that it was therefore intended to be occupied by six or more tenants. Indeed, a number of the witnesses confirmed that at any given time there were at least six tenant’s resident at the Takapuna property.
There are five tenancies in question in this matter, with only five tenants having given evidence. Some of these tenancies were less than 28 days but there was no evidence produced to show at the outset that they were not intended to last for 28 days or more. The shorter tenancies are claimed to have been brought to an end by Ms Sun, due to her perceived difficulties with the tenant.
I therefore find that the tenancies were all intended to and/or did in most cases last for 28 days or more. The Respondents have not proven that the flatmate exclusion applies with respect to the Takapuna property. The Pinehill property
I find that there was a boarding house in operation at the Pinehill property.
I accept the evidence of [Tenant 5] that there were between six to eight people living at the Pinehill property, which had shared facilities and separate bedrooms.
A “flatmate” agreement was produced by [Tenant 5] in relation to the Pinehill property. There is no reference on that document to the tenancy lasting for 28 days or less and Ms Sun has signed the agreement as the “head tenant”.
Although the plan that was produced in evidence for this property referred to 5 bedrooms plus a study, the study was of a dimension where it could have been (and most probably was) used as an additional bedroom. The Bond lodgement form records that there are six bedrooms.
I accept the evidence of [Tenant 5] that the facilities at this property were shared.
I conclude that the Pinehill property was being operated as a boarding house.
Having determined that both the Takapuna and the Pinehill properties were boarding houses, I conclude that the exclusion provided in s 5(1)(n) of the RTA cannot apply. I do not need to go on to further consider whether the premises continue to be used principally as a place of residence by the landlord or the owner of the premises.
However, had I been required to do so, I would have had little hesitation in finding that neither premises continued (from March 2020 onwards) to be used principally as a place of residence by Ms Sun.
I did not find Ms Sun at all convincing when she gave her recollections as to where she lived.
There is a big difference between “having a room” at a property, being a room, you might store some old furniture, junk and unwanted belongings, and then actually living there.
All of the tenants who gave evidence were consistent in their recollections that she did not live at these properties. Ms Sun said they were all liars, but I had no reason to disbelieve them on this point.
Ms Sun was not living at or using either of these premises principally as a place of residence from March 2020 onwards.
I note that she produced documentation regarding the fact she had supplied the Takapuna property address to various agencies as being her contact address but in and of itself, that is not conclusive.
One of these documents is a letter from the New Zealand Police to Ms Sun regarding some form of incident she has lodged. Another relates to an infringement notice.
This material does not greatly assist me in reaching a decision as to whether or not Ms Sun was residing at the Takapuna property. The collection of documents provided is incomplete in that there are no personal power bills or phone bills for instance or other household bills or bank statements addressed to Ms Sun personally at this address. I take it into account but consider it is outweighed by the other evidence. Issue 1.3: Does the sublandlord exclusion apply?
I find that the sublandlord exclusion does not apply.
There are a number of elements as set out in s 5(1)(s) of the RTA that must be proven by the respondents in order to satisfy me that this exclusion should apply.
There was little corroborating information provided by the respondents at all on this question.
As well as being inconsistent with other exclusions relied on, s 5(1)(s)(iii) is clearly fatal because it provides that the tenancy agreement must “expressly provide that the sublandlord will not personally occupy the premises”. There were no tenancy agreements (other than [Tenant 5]’s “flat sharing” agreement), let alone agreements that contained this provision. Issue 1.4: Does the emergency or transitional housing exclusion apply?
Section 5(1)(y) of the RTA provides that the Tribunal’s jurisdiction is excluded: If the premises are used to provide emergency or transitional accommodation and— (i) the provision of the accommodation is funded wholly or partly by— (A) emergency housing assistance paid to or for the credit of a person under the Special Needs Grants Programme; or (B)any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing; or (ii) the provider of the accommodation is a person, or class of person, prescribed by regulations for the purposes of this paragraph.
In Cavanagh v Egmont Eco Leisure Park, 20 Grice J found that the mere fact that the rental and bond were paid by a government department was insufficient to satisfy the requirements of 5(1)(y)(i)(B). This is because the requirement is that the payment is made “for the provision of emergency or transitional accommodation to people in need of housing”. The interpretation of this provisions is to be considered in the light of the use of the accommodation at the relevant time.
The respondents were insistent that emergency housing had been provided. In support of this, Ms Sun pointed to the emails (supplied after the hearing) where there was reference to emails sent to her from an emergency housing case manager and in the case of one tenant (being none of the tenants who gave oral evidence) payment for “emergency housing” from the “special needs grant”.
As was noted above, these documents were supplied after the hearing so Ms Sibinovski could not be cross-examined on them. This means I must give them less weight. There may well have been an explanation for those references, and I cannot discount the possibility there was an error, given the evidence given by Ms Sibinovski in this regard.
The first part of the requirement is: “If the premises are used to provide emergency or transitional accommodation”. 20 Cavanagh v Egmont Eco Leisure Park [2022] NZHC 3601.
I accept Ms Sibinovski’s evidence that obtaining Emergency Housing or Transitional Housing registration is a precursor to accepting tenants and providing services (and then receiving monies from the relevant funds). I accept her evidence that the respondents and the Takapuna property were never registered as Emergency or Transitional Housing suppliers.
It is only if the premises are used to provide such accommodation that I would then go on to consider the rest of the requirement. I find that the Takapuna and the Pinehill properties were not being used to provide emergency or transitional accommodation. They did not even have registration. As such the exclusion does not apply.
A few mistaken payments from the emergency fund does not mean that the premises are used to provide emergency or transitional accommodation, for the purposes of s 5(1)(y).
I do not consider it of great relevance that there are a limited selection of emails sent from an emergency housing case manager about some tenants and that there were references to emergency housing in the emails.
These emails are sent at a very difficult and heightened urgent time for housing of beneficiaries in New Zealand, being in the midst of the COVID-19 pandemic. As Ms Sibinovski pointed out, this was a very difficult time in the housing of WINZ beneficiaries. I fully accept her evidence and explanation that there were mistaken payments from the 146 grants made with respect to the Takapuna property that were mistakenly categorised as emergency grants when they were paid out.
Although Ms Sun described Ms Sibinovski as a liar, that was not my impression of her at all. She presented as a very clear, intelligent and careful witness who freely accepted there had been errors and provided a credible explanation for them.
I find that the respondents have not proven that the emergency or transitional housing exclusion applies. Issue 2: Is the application time barred?
The Chief Executive filed the current applications for exemplary damages on 21 February 2023.
The applications are filed pursuant to the Chief Executive’s ability to file applications with respect to tenancies under s 124A of the RTA.
Section 124A(1) provides that if the Chief Executive is satisfied that it is in the public interest to do so on any of the grounds listed in subsection (2), it may initiate any proceedings in the Tribunal as if the Chief Executive was a party to the tenancy.
The grounds referred to are: (a)in the chief executive’s opinion, the condition of the premises, or the condition of any premises in relation to which the landlord is the landlord under another tenancy, poses a significant risk to the health or safety of any person: (b)in the chief executive’s opinion, the tenant or the landlord has committed a serious breach of this Act, or has persistently breached this Act, in relation to the tenancy or otherwise: (c)in the chief executive’s opinion, any conduct of the tenant or the landlord in relation to the tenancy or otherwise risks undermining public confidence in the administration of this Act: (d)any other ground that the chief executive considers appropriate.
Self evidently, the Chief Executive would need, like any other party filing an application or proceeding in court, to first have a basis for filing an application, such as some form of corroborating evidence supporting the filing of the claim. The Chief Executive could not simply file an application on the basis of some whim, rumour or uncorroborated complaint. To do so could be regarded as an abuse of process and any respondent might rightfully object to it.
It would also not be prudent to file an application at an early point, given the unchallenged evidence of Mr Muagututia-Saipele that Tenancy Services receives many complaints from various sources which are ultimately closed through lack of any corroboration. It is not practical that the Chief Executive should file a proceeding regarding every complaint it received.
Section 124B(1) of the RTA provides that the Chief Executive may not initiate any proceedings under that section any later than 12 months after the date on which the Chief Executive became aware of the matters on which the proceedings are based.
Section 109(2A) of the RTA says that the Chief Executive may not apply under s 109(1) (for exemplary damages) later than 12 months after the date on which the Chief Executive “first became aware of the unlawful act”.
I consider that the date when the Chief Executive first “became aware of the matters on which the proceedings are based” closely aligns with the date when the Chief Executive “first became aware of the unlawful act”. Both phrases connote some level of knowledge, not just about the mere fact of a complaint, but about matters which could corroborate a complaint, justify proceedings and therefore amount to an unlawful act.
I also consider that the provisions do not mean when the Chief Executive herself personally became aware but rather the Chief Executive of the Ministry of Business, Innovation and Employment, acting through its officers, in this case, Mr Muagututia- Saipele and others who gave evidence.
The issue therefore is when did the Chief Executive (through the knowledge of the investigators employed by MBIE) first become aware of the matters on which the proceedings are based and allegedly unlawful acts committed by the respondents?
There is a distinction between knowledge of bare or scant allegations about matters which could give rise to a breach of the RTA, and knowledge of actual facts corroborating those allegations, as noted above.
I consider that “the matters on which the proceedings are based”, means something more than a bare allegation. Likewise, I also consider that “becoming aware of the unlawful act” means something more than simply being presented with an allegation, without more.
The Chief Executive submits that she did not have knowledge of the facts giving rise to the proceedings or knowledge about the unlawful acts until the 10 March 2022 site visit. It was at that time that corroborating photographs were taken, brought back to Mr Muagututia-Saipele and the more in-depth investigations then begun.
I agree with the Chief Executive’s submission that it was not until 10 March 2022 that the Chief Executive became aware of the matters on which the Takapuna property application was filed. With that application having been filed less than one year after 10 March 2022, the application is not time-barred. Issue three: Who was the landlord?
The Chief Executive contends that Ms Sun personally is the Landlord with respect to both Takapuna property and the Pinehill property. The Chief Executive submits that: a) with respect to the Takapuna premises, Ms Sun personally leased these premises from its owner, Premium Rental Property Management Limited. It submits that as she was the lawful tenant of that property under that head lease, she was the only party who had the right to tenant the Takapuna property to its other occupants. As such she is a landlord in her own right even if she has arguably contrived to conduct a tenancy business through a separate entity. b) Alternatively, the Chief Executive argues that the corporate veil should be pierced and Ms Sun made personally liable on that basis. The Chief Executive submits that Ms Sun is essentially using SRL as her alter ego or puppet. c) With respect to the Pinehill premises, the Chief Executive submits that although the premises were leased by SRL from its owner, nevertheless, Ms Sun should be held personally liable on the basis of piercing the corporate veil, as just described.
The respondents say that the correct contracting party here, if any, is SRL.
Very little information was provided to the Tribunal regarding the activities of SRL. I asked for bank statements to be provided by SRL but that did not happen. Nor did SRL provide copies of all of the other tenancy agreements (for instance relating to the total of 146 grants for the Takapuna property). Only one set of financial statements was produced, for 2019.
This information, had it been provided, might have recorded revenue from the tenancy income generated by the tenancies in this matter, if indeed, SRL was intended to be the landlord. I infer that such information was not provided because it was not helpful to Ms Sun’s position.
The documentation that is produced, however, records that for the Takapuna property, the landlord was described on the tenancy agreement as being Ms Sun. There is no reference to SRL anywhere on that document and it predates Ms Sun becoming a director of SRL. Ms Sun therefore had the legal obligation to pay rent.
The bond lodgement form refers to the tenant as “Sunny Visa Ltd Angela Sun”. Ms Sun has signed personally. The Bond Centre would in my view rightly interpret this as meaning the bond could be remitted to Ms Sun at the end of the tenancy.
All of the tenants regarded Ms Sun as being the landlord. This is also a factor which I consider relevant to take into account, as was Ms Sibinovski’s evidence that the landlord of the Takapuna property was known at MSD Takapuna to be Ms Sun. 21
I consider it significant that at the time Ms Sun entered into the tenancy agreement for the Takapuna property, she was not then a director of SRL.
It may be that for tax or other purposes she has later involved SRL on some aspect of her operation, but I consider that the landlord here was correctly identified as Ms Sun.
Ms Sun says it does not matter that the tenancy agreement pre-dated her becoming a director of SRL because she still had the authority to act on its behalf. She provided no corroborating evidence of this such as business cards, an employment agreement or the like. I reject this argument.
I find that Ms Sun was the landlord of the tenants at the Takapuna property, not SRL.
Regarding the Pinehill property I find that the landlord was SRL. The tenancy agreement between the owner of the property and the tenant describes the tenant as SRL and SRL is also described on the Bond lodgement form as the tenant. By this stage, Ms Sun was the director of SRL so she would have had full authority to enter into agreements on its behalf.
In case I am wrong, I consider whether Ms Sun is personally liable with respect to the Pinehill property because this is a case where the corporate veil should be pierced.
The concept of limited liability companies means that the liability of the shareholders for the debts of the company is limited. A company incorporated under the Companies Act 1993 is a legal entity in its own right, separate from the 21 Although I note that the registration email Ms Sun received referred to the supplier as SRL. shareholders. A company therefore has a completely separate legal personality from its shareholders. 22
As noted by the author of Morrison’s Company Law, 23 there are occasions where the courts do not uphold the principle of separate personality: .... The fiction of separate personality will not be perpetuated where it is being abused, or where the fiction does not confer any advantage and the issue is unrelated to the purpose of incorporation. To avoid a continual reassessment of the boundaries of the principle, the courts have said that special circumstances indicating that the corporate structure is a mere façade concealing the true facts will be required before the principle of separate personality is ignored. .... In Police v Alexandra Park Functions Ltd, the High Court held that, in order to justify lifting the corporate veil, “[E]vidence is required that an individual has abused the rights and privileges granted by limited liability to defeat, subvert or circumvent the legal obligation or prohibition.
Morrison’s goes on to note that the classic cases where the corporate veil has been ignored are where the persons behind the company have engaged in fraud, the company has been formed to avoid a restraint of trade clause binding an individual, land has been transferred to a company to avoid a decree of specific performance and a new company has been formed to take advantage of a statutory provision enabling compulsory acquisition of a minority shares.
Setting up a company to transact business through that company, and then becoming a director of the company in order to take over that company, does not in and of itself give rise to a fraud or anything untoward. This is a common everyday occurrence in the world of small business ownership.
I find that the Chief Executive has not established that the corporate veil should be pierced in this case.
Therefore, if any party is to be liable in respect to the Takapuna property, it is Ms Sun as landlord. If any party is to be liable with respect to the Pinehill property, it is SRL as landlord. Issue 4: Have there been any breaches of the RTA and if so, what exemplary damages should apply, if any?
I will now deal with each of the allegations relating to alleged intentional breaches of the RTA, noting that the relevant landlord for the Takapuna property is Ms Sun and the landlord for the Pinehill property is SRL, with [Tenant 4] and [Tenant 5] having been tenants at both properties. 22 See Morrison's Company Law (NZ) (online looseleaf ed, LexisNexis) at Chapter 3; also see Saloman v A Saloman & Co Ltd [1897] AC 22. This principle has been confirmed in New Zealand, see for example Lee v Lees Air Farming Ltd [1961] NZLR 325 (PC). 23 At [3.4]. a) Tenancy agreements not in writing, signed or provided to the tenant – s 13(4) of the RTA
A landlord must ensure a tenancy agreement is in writing (s 13(1)), signed (s 13(2)(a)) and a copy provided to the tenant prior to the tenancy commencing (s 13(2)(b)). These are separate obligations.
Section 13(4) provides that a landlord who fails to comply with either subsection (1) or (2) commits an unlawful act.
The maximum amount for which an award of exemplary damages can be made is set out in Sch 1A of the RTA. This schedule is titled “amounts for unlawful acts”. It is comprised of three columns, one for the relevant section that has defined the unlawful act, the second for the “description of unlawful act” and the third sets out the maximum amount.
In the case of s 13(4), the relevant description of unlawful act that appears in column 2 is: “landlord failing to ensure tenancy agreement in writing, signed and provided to tenant”.
The respondents submitted no evidence of any written tenancy agreements being in place or being provided to the tenants. The only evidence of any agreement was produced by [Tenant 5]; he provided a flat-share agreement for the Pinehill property, but I do not consider that to be a tenancy agreement. 24
I am satisfied that the evidence establishes that the respondents did not provide tenancy agreements in writing in respect of the tenants. These were unlawful acts.
This failure amounts to an unlawful act under the RTA. Should the respondents pay exemplary damages to the tenants for failure to provide a written signed tenancy agreement to the tenants?
I must now decide what amount, if any, the respondents should pay for exemplary damages.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) of the RTA.
In Auckland City Council v Blundell, the Court of Appeal stated: 25 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 the conduct. 24 It does not comply with the relevant requirements for a tenancy agreement. 25 Auckland City Council v Blondell [1986] 1 NZLR 732 (CA) at 704 per Cooke P
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.
It is established and settled law that the Tribunal must take into account the intent of the party against whom the order for exemplary damages are sought: 26 Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed “intentionally”. In my view negligence does not equate to intention and for the Tribunal to be satisfied that a party has “intentionally” committed an unlawful act, evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind the act and deliberately set about to commit it.
That there must therefore be evidence of actual intention on the part of the landlord (as opposed to mere negligence) has been accepted in several District Court decisions as being the touchstone. 27
Section 109(4) provides that: (4) The maximum amount that a person may be ordered to pay under this section for any unlawful act referred to in any section shown in column 1 of Schedule 1A is the amount shown opposite that section in column 3 of that schedule.
Schedule 1A sets out the maximum amount that may be ordered for exemplary damages, and the amount for s 13(4) is as follows: Column 1 Section Column 2 Description of unlawful act Column 3 Amount ($) 13(4)Landlord failing to ensure tenancy agreement in writing, signed and provided to tenant 750 26 See Chief Executive ex Parte Edmonson v Walls, North Shore Tenancy Tribunal 548/92, 29 June 1993 at [20]. 27 See, for example, AI Property Managers Ltd v Duggan [2021] NZDC 9168 and TMT New Zealand Ltd v Sweeney [2021] NZDC 16182.
Regarding the Takapuna property, I consider Ms Sun acted intentionally in failing to provide written signed tenancy agreements to the tenants. This was a conscious act on her part. She said in her evidence she had herself previously been a tenant. She had signed her own tenancy agreement with respect to the Takapuna property. In my assessment, these breaches relate to fundamental obligations that all landlords should be aware of.
The effect of this sort of unlawful act is that tenants are not provided with the information they should have had about the tenancy. There is a strong public interest in tenants being provided with the statutory information that they are entitled to receive in relation to the tenancy and the landlords familiarising themselves with the legal obligations upon them.
It is significantly in the public interest that landlords familiarise themselves with the requirements and comply with them.
Ms Sun’s reason for failing to provide tenancy agreements was because she believed the RTA was excluded. She therefore claims she was mistaken about the effect of the RTA. I do not consider that an adequate justification.
I consider that it would be just to require Ms Sun to pay each of the tenants a sum in the nature of exemplary damages.
This is the first time this landlord has been before the Tribunal and is therefore the first time the Tribunal has made any order against her. Although I consider that ignorance is no excuse when it comes to understanding the RTA, I consider that a mitigating factor here is that Ms Sun did not in this case set out to avoid her obligations under the RTA. I think that this has been more a case where Ms Sun has adopted a casual approach to her obligations under the RTA.
I also make a reduction for her lack of experience in business and property management; I consider that her situation in this case will be a real learning experience.
An appropriate starting point in this case is one third of the maximum, given this is the first breach by this landlord of the RTA. Allowing for further reduction for the reasons I have mentioned, I award each of the tenants the sum of $100 in relation to the failure to be provided a written tenancy agreement.
In the case of SRL, for the same reasons, I find that with respect to the failure to provide written tenancy agreements to [Tenant 5] and [Tenant 4] regarding their tenancies at the Pinehill property, it should pay them each $100. [Tenant 5] and [Tenant 4] also resided at the Pinehill property and should have received a separate tenancy agreement for that property. Failure to provide written receipts for tenancy bonds and failure to forward bond monies to the Chief Executive – s 19(2).
Section 19 of the RTA deals with “Duties of landlord on receipt of bond”. It provides that a landlord must provide a written receipt for tenancy bond (s 19(1)(a)) and, separately, that the landlord must then forward any bond money to the chief executive within 23 days after the payment is made (s 19(1)(b)).
Section 19(2) and Schedule 1A of the RTA provide that failure to issue a receipt, or to forward any amounts received is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.

Was there a breach of s 19 of the RTA?

I find that the evidence establishes that bonds were collected from the tenants with respect to the Takapuna property. I find that Ms Sun failed to issue receipts for the bond money and failed to send the bond that she received to the Bond Centre.
There were therefore two breaches of this provision for each tenant; failing to send the bonds to the Bond Centre and failing to issue a receipt. These breaches are unlawful acts.
I do not accept Ms Sun’s evidence that a bond receipt book was kept and that bond receipts were provided to each of the tenants from that book. I found Ms Sun’s evidence in relation to the “bond receipt book” entirely unconvincing and bordering on implausible. It made no commercial sense that the bond receipts would be recorded out of chronological order and that Ms Sun would start in the middle and go backwards in the book. Also, this does not explain why there were two bond receipts made out for more than one tenant.
These inconsistencies had all the hallmarks of an attempt to generate evidence at a later point in time. There was an air of unreality to the explanations from Ms Sun.
I simply do not accept her evidence that the tenants were all provided with the bond receipts. I therefore believe the tenants when they say they did not receive the bond receipts.
The respondents do not deny that the bonds were not sent to the Bond Centre.
I am not satisfied that it has been proven that bonds were collected from [Tenant 5] and [Tenant 4] also with respect to the Pinehill property.
Pursuant to s 19(2), I find that Ms Sun has committed unlawful acts by failing to provide receipts for the bonds and by failing to send the bonds to the Bond Centre.

Should the landlord pay exemplary damages for its breach of s 19 of the RTA?

Ms Sun’s explanation for not lodging the bonds was because she considered she had no legal obligation to do so. She thought these agreements were excluded from the RTA.
I have dealt with this above; I do not consider this an adequate explanation.
Landlords need to familiarise themselves with the law. The law relating to the retention of bonds is there to protect tenants. The bond is the tenant’s money and our law reflects the importance of preserving that distinction.
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 (see Chief Executive for Housing New Zealand v Walls North Shore TT 548/92, 29 June 1993).
Ms Sun did not lodge the bond because she claims she believed the RTA was excluded. I do not accept that this is a genuine oversight.
I consider that Ms Sun’s actions in failing to provide written receipts for tenancy bonds and failing to forward the bond to the Bond Centre to be intentional acts. She made a conscious choice not to do so and as noted above, I consider she was ambivalent regarding her obligations under the RTA.
It is common knowledge in New Zealand tht bonds must be forwarded to the Bond Centre. Bond is the tenant’s money and landlords are not allowed to wrongfully retain it for their own purposes. It is not the landlord’s money. I find that Ms Sun was aware that bonds need to be sent to the Bond Centre.
In the circumstances, I consider it significantly in the public interest to make an award of exemplary damages. There is a strong public interest in maintaining the integrity of the bond system. Deterring other landlords from bypassing the system of bond lodgement is a legitimate consideration in calculating an award for exemplary damages.
An award of exemplary damages is discretionary and s 109(3) requires that it be just to make an award. I consider there is no doubt that it would be just to award exemplary damages; the issue is how much should be awarded.
I do consider that a mitigating factor here is that the amount of bond was held with respect to each of the tenants is not a large amount. Ms Sun has taken a bond equivalent to two weeks rent in most cases. Had Ms Sun taken only one weeks rent then she would not have needed to lodge the bonds at all.
The question arises whether each of these separate acts, namely failing to provide a written receipt and failing to forward the bond money to the Chief Executive give rise to two separate awards for exemplary damages or whether I can only make a global order for one amount of exemplary damages for both breaches.
As noted above, the maximum amount for which an award of exemplary damages can be made is set out in Schedule 1A of the RTA. This schedule is titled “amounts for unlawful acts”. It is comprised of three columns, one for the relevant section that has defined the unlawful act, the second for the “description of unlawful act” and the third sets out the maximum amount.
With reference to s 19(2), the second column of the schedule contains the following narration: “breaching duties on receipt of bond”. The maximum amount that can be awarded is $1,500.
In Gardner v Upland Bay Investments Ltd, 28 the Tribunal had awarded $500 by way of exemplary damages against the landlord for failing to lodge the bond and $1,000 for failing to maintain the property. On appeal, the tenants argued that separate awards should have been made for each breach under ss 19 and 45 of the RTA, i.e. up to $1,000 for failure to lodge the bond, $1,000 for failure to provide a bond receipt and $1,000 for each individual breach of buildings, health and safety requirements.
The District Court disagreed, stating: [29] However, Schedule 1A is explicit, when setting the maximum amount awardable in relation to both s 19 and 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 form as adopted by 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.
The Chief Executive submits that the case is wrongly decided because the court did not consider the wording of s 109(4) or the Interpretation Act 1999 (now the Legislation Act 2019). The latter provides that “words in the singular include the plural and words in the plural include the singular” (see section 19).
I was referred to another Tenancy Tribunal decision which postdated Gardner, namely, Chief Executive v Edgecumbe House Ltd. 29 In that case, the Tribunal was considering a case where, amongst other things, there were a number of different breaches of s 66I of the RTA. So, several unlawful acts covered by the one section of the RTA.
The narration for column 2 that relates to s 66I in Schedule 1A of the RTA states “landlord of boarding house failing to meet obligations in respect of cleanliness, maintenance, smoke alarms, the healthy homes standards, or buildings, health and safety requirements.” The maximum amount to be awarded is $7,200.
After a careful analysis of the wording in all of the relevant statutory provisions, the adjudicator had concluded that the plain and ordinary meaning of s 109(4) is that, in relation to any of the unlawful acts referred to in s 66I(4), the maximum amount that can be awarded is $7,200. Because s 66I(4) refers to 6 subsections, and an even larger number of legal obligations, he concluded that it follows that the maximum applies to any of the unlawful acts covered by those provisions. 28 Gardner v Upland Bay Investments Ltd DC Wellington CIV-2014-085-13, 27 August 2014. 29 Chief Executive v Edgecumbe House Ltd [2024] NZTT 4573609
Part of this rationale was that given the large number of potential breaches covered by s 66I(4), it would make no sense for a landlord who breaches one obligation to be in the same position as a landlord who breaches numerous obligations. This rationale falls into sharp relief when one compares the fact pattern of many Tribunal cases where there may be only one, possibly two breaches justifying an award of exemplary damages, with the Edgecumbe case, where the landlord’s conduct has given rise to multiple breaches of the RTA, many of which had to be covered by the one provision.
Since the Edgecumbe decision, the District Court in MBIE v Hillis Shearing Ltd 30 has endorsed the finding in Gardner, concluding that a global approach to exemplary damages is to be taken in the case of the landlord’s obligations under 45(1), with the District Court stating: 31 This maximum amount would be meaningless if breaches under S 45 could be punished separately with the maximum amount multiplied a number of times over.
The decisions in Hillis Shearing Ltd and Gardner are binding on me.
Therefore, the maximum amount that can be awarded by way of exemplary damages with respect to the failure to provide written receipts for tenancy bonds and to forward the bond to the Bond Centre is $1,500 (per tenant).
All of the tenants in these premises were vulnerable tenants. They included people released from jail who struggle to find landlords willing to take them in. They are the sort of tenants who are therefore vulnerable to being taken advantage of by landlords.
This is Ms Sun’s first time before the Tribunal and I take that into account as well as the fact the bond amounts were small.
I award each tenant the global sum of $350 with respect to these unlawful acts. Section 60AA of the RTA – acting to terminate boarding house tenancy agreements without grounds
A landlord of a boarding house tenancy must give 28 days notice of termination of the tenancy if no reason is given. They can only give immediate notice under s 66U of the RTA where the tenant causes or threatens to cause serious damage to the premises, or endangers or threatens to endanger people or property, or causes or threatens to cause serious disruption to other tenants.
Pursuant to s 60AA of the RTA, a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so. 30 MBIE v Hillis Shearing Ltd [2024] NZDC 207583. 31 At [22].
Breaching that obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00 (see s 60AA and Sch 1A of the RTA).
I find that Ms Sun told [Tenant 1], [Tenant 5] and [Tenant 4] to immediately move out of their tenancies without giving proper grounds.
Ms Sun claims that these tenants were argumentative, had caused damage and disruption amongst other tenants and/or had stolen property, and so she therefore relies on the ability to give immediate notice under s 66U of the RTA. She claims that the conduct was a reasonable excuse to give them immediate notice of termination.
I find that she failed to put sufficient corroborating evidence before the Tribunal of her allegations. It was simply her verbal evidence against the conflicting accounts of the tenants.
I am not satisfied that there were grounds to issue immediate notices of termination with respect to these three tenants or that Ms Sun had a reasonable justification for doing so. Therefore, I find her actions in terminating these three tenancies to be unlawful.
I find that these wrongful terminations were all intentional and that Ms Sun must have known this to be the case. I consider that she was generally ambivalent to her obligations as a landlord. She must have known the personal difficulty it would have created for these three vulnerable tenants to have to suddenly find alternative accommodation.
In the case of [Tenant 1], she had an elderly dog to manage. This would have added to her anxiety about having to move out with little notice.
The provisions for termination by notice are in the RTA to protect tenants, including vulnerable tenants such as tenants who are being housed in a boarding house context. There is a significant public interest in tenants knowing where they stand when it comes to termination and being able to rely with certainty on their exact termination date.
Ms Sun is a first-time landlord before the Tribunal. I consider she will have learned from her experience. I take this into account in fixing the final amount.
I consider that Ms Sun should pay $1,000 to [Tenant 4] and [Tenant 1] for these unlawful acts.
With respect to [Tenant 5], the termination of his tenancy at the Pinehill property was by SRL (through Ms Sun as its agent). SRL must pay him $1,000 for this unlawful act. Harassment of tenant in boarding house – s 66G(4)
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 66G(2) of the RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages up to a maximum of $3,000.00 may be awarded. See section 66G(4) and Sch 1A of the RTA.
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". See MacDonald v Dodds DC Hamilton CIV-2009-019-1524, 26 February 2010.
I am not satisfied that harassment has been proven here to the requisite level. There were conflicting accounts by the parties who gave evidence. It is hard to reconcile this to any extent in the absence of any corroborating documentation.
Volatile arguments do not in and of themselves constitute harassment to the point where someone has been worn out or exhausted or to where it constitutes a pattern of behaviour directed at another person.
I find that harassment has not been proven. Failing to meet obligations in respect to cleanliness, maintenance, smoke alarms or buildings, health and safety requirements – s 66I(4)
Pursuant to s 66I(4) a landlord must: a) ensure the facilities of the premises are in a reasonable state of cleanliness; b) provide and maintain the premises in a reasonable state of repair; c) comply with all requirements in respect of smoke alarms and contaminants imposed by regulations made under section 138C(3)(c), and the healthy home standards; d) comply with any relevant enactment in relation to buildings, health and safety.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 66I(4) and Schedule 1A of the RTA.
I heard extensive evidence during the hearing from various council officers and in particular from Mr Glazebrook and Mr Beer in regard to the serious fire and safety issues regarding the Takapuna property. I accept all of this evidence, which was not challenged.
I consider it is deeply concerning that the building suffered from an overwhelming lack of any proper method to warn its occupants of a fire. There was no evacuation plan or proper alarm system in place. There are a number of unconsented penetrations which add to the risk of fire spread and loose hanging wires, some of which appeared to be live.
These events were so concerning that a dangerous building notice was issued with respect to the Takapuna property, the full text of which I have set out above.
Landlords who operate boarding houses must ensure the premises are safe from a fire evacuation point of view. When landlords do not comply with their obligations, tenants’ lives are at risk.
It is this significant fire and safety risk which strikes at the heart of this case and even though Ms Sun claims she believed the Takapuna property was exempt from the RTA, at the very least, knowing that she was housing a number of tenants in a property that she was not herself living in, she must have known that the building needed to be fire alarm compliant, at least with proper working fire alarms. There was evidence given by tenants that there were not even any domestic smoke alarms in place in their rooms.
I consider all of the foregoing deficiencies to be breaches of s 66I(1)(b), (ba) and (c) of the RTA. Pursuant to s 66(4) of the RTA, they are declared to be unlawful acts.
The maximum amount that can be awarded is $7,200 per tenant. For reasons discussed above, only a global amount can be awarded.
I consider that these unlawful acts were clearly intentional. I find that a deduction can be made given this is the first time Ms Sun has appeared in the Tribunal, however, I consider that the amount for exemplary damages still needs to reflect the public interest in ensuring that landlords comply with basic fire requirements in boarding houses and other accommodation. I find that the amount of exemplary damages per tenant should be $3,500. Unauthorised entry or attempted entry of tenants boarding room – section 66T(1)(a)
The Chief Executive claims the landlord entered the room of [Tenant 6] and [Tenant 2] without their consent and without giving them prior notice.
[Tenant 6] did not appear to give evidence and so I find this aspect of the claim is not proven.
I find however that in the case of [Tenant 2], Ms Sun did come into his room without permission and in particular on one occasion when he was in the shower.
I accept his evidence that this occurred, although because I note Ms Sun considered she had first knocked, I am not satisfied that this act was intentional.
I therefore dismiss this aspect of the claim. Final matters
I dismiss the claims that were brought on behalf of the two tenants who did not give evidence as they had not appeared to give evidence and therefore were unable to be cross-examined. I consider all of the claims that they have brought to be unproven.
I consider that the filing fee of $20.44 should be paid by Angela Sun to the Chief Executive with respect to the Takapuna property, because it has been successful in its claim against her. For similar reasons, SRL must pay the Chief Executive the filing fee with respect to the claim concerning the Pinehill property.
I consider that name suppression should be ordered in favour of all of the tenants mentioned in these applications.

Tenancy Tribunal case 4508389 — Rent arrears at HEARING DATES:

Tenancy Tribunal case 4508389 — Rent arrears at HEARING DATES:

Order

Reasons

Did Ms Sun live at the Takapuna or the Pinehill properties?

Was there a breach of s 19 of the RTA?

Should the landlord pay exemplary damages for its breach of s 19 of the RTA?

Order

Reasons

Did Ms Sun live at the Takapuna or the Pinehill properties?

Was there a breach of s 19 of the RTA?

Should the landlord pay exemplary damages for its breach of s 19 of the RTA?