Published tribunal order
Tenancy Tribunal case 4524230 — Exemplary damages at 15 Kowhai Avenue, RD 3, Kaiaua 2473
Decided 16 Feb 2024 · Published 16 Feb 2024 · Application 4524230
Tenant favoured
- Exemplary damages
Order
- Lionel Bekker and Leanda Bekker must pay Leonie Mosen $1,057.42 , calculated as shown in table below.
Reasons
- Ms Mosen appeared and was supported by Mr Ethan Mosen. Mr Bekker appeared represented by Mr Harris, Counsel.
- The tenancy commenced on 06 April 2020. During the tenancy, the property was sold to Mr and Mrs Bekker, who on 07 March 2022 became the landlord until the end of the tenancy on 08 May 2022. The tenant’s application against Mr and Mrs Bekker was filed on 14 March 2023, and covers acts or omissions said to be in breach of the Residential Tenancies Act 1986 (The “Act”) between 07 March 2022 and 08 May 2022. On 23 May 2023, the landlord filed a counterclaim. There was a Case Management Conference on 24 July 2023 to confirm the claims and compensation.
- The tenant’s claims made against the landlord are: (in brackets are details of the compensation or damages sought) (i) That a 63-day notice issued to terminate the tenancy under section 51 (1)(a) was invalid, (compensation $79,380.00, exemplary damages $10,000) (ii) That upon receiving the bond from the previous landlord, which had not been lodged, the landlord then failed to lodge it within the required period, section 19(1) of the Act, (exemplary damages up to the maximum $1,500.00) (iii) That the property does not comply with the Healthy Homes Standards relating to insulation, section 45(1) (bb) and Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, (exemplary damages up to the maximum $7,200.00) (iv) That the landlord has failed to maintain the property free from excessive dampness and moisture, section 45(1)(c) and Housing Improvement Regulations 1947, (compensation of $35,000.00, exemplary damages up to the maximum $7,200.00) (v) That the landlord has failed to provide and maintain an adequate means for collection and storage of water, section 45(1) (ca), (exemplary damages of up to the maximum $7,200.00) (vi) That the landlord has interfered with the reasonable peace, comfort, and privacy of the tenant to the extent that the conduct of the landlord has amounted to harassment, section 38(2) and (3), exemplary damages up to the maximum $3,000)
- The tenant has previously accepted the Tribunal has a jurisdiction to make orders up to $100,000.00 only.
- There are other claims made by the tenant concerning the tenancy prior to 07 March 2022. These matters had also been listed for today but have been adjourned due to the unavailability of the respondent.
- The landlord’s claims against the tenant are: (in brackets are details of the compensation sought) (i) That the tenant owes rent arrears, ($2,604.00), (ii) That the tenant has failed to remove all rubbish, ($1,605.00)
- The onus of proving these claims rests with each party. The standard required is on the balance of probabilities. Each party must establish more likely than not that the other has breached the terms of the agreement or provisions of the Act.
- The Tribunal has heard from Mr Bekker and Ms Mosen. It has also considered written submissions made by Ms Mosen, and by Mr Harris, Counsel for the landlord. That a 63-day notice issued to terminate the tenancy under section 51 (1)(a) was invalid.
- Section 51(1)(a) of the Act states that the landlord may give 63 days’ notice to terminate the tenancy on the grounds that the owner requires the property as a principal place of residence for at least 90 days.
- Landlord is defined in section 2 of the Act as being the grantor of the tenancy and includes a prospective landlord.
- The tenants challenge to the notice is on the basis that it had been served by Mr Bekker prior to the settlement on 07 March 2023, and that the notice is therefore invalid having not been served by the landlord.
- The tenant has produced the notice which is contained in an email. The tenant concedes that the notice was in fact served on 07 March 2023, and on that basis that it has in fact been served by the “landlord”. Further, having entered in an unconditional sale and purchase agreement with settlement on 07 March 2022 Mr Bekker also satisfied the wider definition of prospective landlord, and was in fact entitled, having properly advised of a transfer of landlord, to serve the notice prior to settlement.
- The claim is dismissed. That upon receiving the bond from the previous landlord, which had not been lodged, the landlord then failed to lodge it within the required period, section 19(1) of the Act.
- Section 19(1)(b) of the Act states that a landlord, upon receipt of the bond, must within 23 working days lodge the bond with the bond centre along with a bond form. A failure to comply with section 19(1) is an unlawful act for which exemplary damages of up to $1,500.00 may be awarded. Exemplary damages are awarded to punish the liable party. Section 109 of the Act provides that where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest.
- A bond represents the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
- Exemplary damages are only awarded for the intentional failure to lodge the bond. Damages will not be awarded where non-lodgement is a genuine oversight rather than an intentional act as established in (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
- In TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 at paragraph [29] – [30], the Court stated that the landlord must actually be aware of the act or omission that results in a breach. ‘Intentionally’ therefore means deliberately and with full knowledge of the act or omission giving rise to the breach.
- Once awareness of the act or omission resulting in the breach has been established, the Tribunal must then go onto consider the other factors set out in section 109(3) of the Act.
- The bond of $1,500.00 was paid to the previous landlord at the commencement of the tenancy on 06 April 2020 but appears not to have been lodged at that time. Following the transfer of the tenancy in March 2022, a dispute arose concerning the rent. The tenant subsequently discovered the bond initially paid had not been lodged and was in the possession of Mr Bekker. This fact is not disputed. The landlord states that part of the sale and purchase agreement was that the vendor, the previous landlord, would reduce the purchase price by the bond amount. Mr Harris acknowledges that Mr Bekker received the bond. There is no dispute that it was not lodged. Decision
- I am satisfied that having received the bond from the previous landlord that Mr Bekker, as the landlord, has not dealt with it as required. On that basis there has been a breach which is an unlawful act.
- The tenant states having discovered that the bond had not been lodged they suffered stress and anxiety.
- While acknowledging the breach, Mr Harris submits that exemplary damages are not justified. Mr Harris submits that Mr Bekker, a first-time landlord who unexpectedly found himself in this position, having initially sought vacant possession, was unaware of the provisions of the Act concerning bonds and therefore his failure to lodge the bond was an oversight. While I accept that Mr Bekker may have been a first-time landlord, I cannot accept that this excuses noncompliance with what in my view is a well-advertised legal obligation. I also note that the sale and purchase agreement, prepared in advance, included provisions for the bond suggesting that both parties had turned their minds to its existence and obligations. Mr Harris further argues that by the time Mr Bekker realised that he was likely in breach of his obligations that it was too late to take steps to rectify the matter before the end of the tenancy. Mr Harris also submits that the effect of the breach on the tenant has been minimal and less than the significant stress and anxiety as claimed, pointing out that throughout the correspondence concerning the rent that the tenant anticipated that any rent owing at the end would be offset by the bond.
- In conclusion, I am not satisfied that this is a situation where there has been a mere oversight. The breach on this occasion has occurred because of an ignorance of the law, which can be no excuse. However, considering the short duration of the tenancy and the impracticality of rectifying the matter, I accept that steps to address the breach may have been difficult. While the tenant cannot waive their right to have the bond dealt with pursuant to the Act, I accept that they anticipated the bond held by Mr Bekker would be attributed to any rent arrears, and not returned. Taking these and the other factors in section 109(3) into account I award the tenant exemplary damages of $250.00. That the property does not comply with the Healthy Homes Standards relating to insulation, section 45(1) (bb) and Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- From 1 July 2019, all residential premises had to be insulated to a minimum standard (see s 45(1) (bb) Residential Tenancies Act 1986 and Part 2 Residential Tenancies (Smoke Alarms and Insulation) Regulation 2016). Where the premises were insulated before 1 July 2016, the ceiling insulation had to have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation had to have an R-value of at least 0.9. The insulation had to be in reasonable condition.
- Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3. Zone 3 covers the South Island and central North Island. The minimum R-value for underfloor insulation is 1.3. The insulation must be in reasonable condition.
- There are exceptions to these requirements, for example, where it is impractical to install insulation, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (see s 45(1A) and Schedule 1A of the Act).
- The insulation certificate attached to the tenancy agreement, completed by the previous landlord at the commencement of the tenancy in 2020, states that the property is insulation compliant. The tenant claims that on about 26 January 2022, Mr Bekker, acting as the prospective purchaser, of the property arranged a builder to visit the property and conduct an inspection. The builder was accompanied to the property the Real Estate agent, who left during the inspection. The tenant states that the builder entered the roof void, after which he told the tenant that there were issues with wiring, and that the ceiling was only partially insulated. The report completed by the builder has not been produced. Apart from the hearsay comments of the tenant there is no evidence from the builder. The tenant states that they did not personally look in the ceiling void. The tenant has produced photographs of the property taken for advertising purposes which show that it sits off the ground by approximately half a metre, likely for flood mitigation purposes. The tenant claims to have inspected under the house but found no insulation. However, no photographs are produced.
- The landlord denies that the property is not compliant, stating that they have inspected the ceiling void and found insulation present throughout, with only a small section where it was pushed aside. The landlord states that they have also looked underneath the house and confirmed the presence of insulation. Mr Harris argues there is insufficient evidence to dispute the certificate prepared by the previous landlord. Decision
- The onus is on the tenant to prove that the property does not comply. While I have some doubts as to the accuracy of the certificate, the only evidence produced supporting the assertion that the property does not comply is the oral evidence of the tenant and the hearsay remarks made by the builder. Further there is no evidence on which to make an independent assessment. There is insufficient evidence, and the claim is dismissed. That the landlord has failed to maintain the property free from excessive dampness and moisture, section 45(1)(c) and Housing Improvement Regulations 1947.
- For this tenancy Healthy Homes Standards which include minimum standards relating to moisture ingress and drainage come into effect on 01 July 2025. Under section 45(1)(c) of the Act all residential properties must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. These provisions include the Housing Improvement Regulations 1947 of which Regulation 15 states that every house shall be free of dampness.
- Breaching any of these obligations in Section 45(1)(c) of the Act is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (see s 45(1A) and Schedule 1A of the Act).
- During a pre tenancy inspection on 04 March 2022, Mr Bekker allegedly stated that the bathroom needed to be “removed”. Although Mr Bekker did not say why, the tenant assumed that it was due to excessive moisture and dampness reported by the builder. Mr Bekker denies saying that the bathroom/ toilet needed removal but acknowledges stating it would be “renovated.” While the property had been freshly painted prior to the commencement of the tenancy in 2020, Mr Bekker stated as he intended residing in the property, he wanted to repaint with a colour scheme of his choice and not due to any issues with moisture or dampness requiring bathroom removal. Mr Bekker has produced photographs of moisture readings taken by the builder during the inspection on 26 January 2022. The only moisture reading above recommended levels is along what appears to be the outside of the metal shower tray where it meets the wooden joinery, which Mr Bekker claims is a naturally damp area. However, the photographs are unclear. None of the other readings taken show excessive moisture levels. Mr Bekker states that the shower, over thirty years old, requires replacement due to fair wear and tear, but otherwise denies the tenant’s claim.
- Determining whether a property suffers excessive dampness will involve an objective assessment of the facts established by the evidence.
- In this case, there are no photographs showing moisture, dampness, or mould. The onus is on the tenant to establish the claim. There is insufficient evidence to be satisfied to the required standard that the property suffers excessive moisture and dampness, and the claim is dismissed. That the landlord has failed to provide and maintain an adequate means for collection and storage of water.
- Under section 45(1) (ca) of the Act a landlord must provide an adequate means for the collection and storage of water if there is no reticulated supply, mains water supply.
- The collection and storage must provide for a potable source of water, which is one that can collection and storage of water that is suitable for human consumption.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the Act.
- There is no reticulated water supply to the property, which relies on a tank fed by rainwater collected from the roof.
- The tenant states that on 16 March 2022, they encountered Mr Bekker at a local café and informed him that there was an issue with the water supply, that due to a possible leak the tank was empty and further that the tank was dirty. The landlord arranged for a water delivery. However, the tenant states that no inspection was conducted, and the leak persisted, and the water remained undrinkable. The tenant has produced photographs of the inside of the tank, which they claim shows its uncleanliness, and that the water is contaminated. The tenant has also produced photographs of a living frog and deceased frog which they state made their way into the tank through a broken lid, although there is no photograph of the broken lid. The tenant has produced a text message sent to Mr Bekker on 30 April 2022, nine days before the end of the tenancy, stating that the tank had a hole in the side and the water was undrinkable. There are no photographs of holes in the tank.
- The landlord’s obligation under section 45 of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right whatever the problem might be.
- Mr Bekker acknowledged that the tenant informed him that the tank was empty but denied being informed of a leak or that the tank was dirty. He states that, believing he was responsible for supplying water, which over and above providing and maintaining the tank he was not, that he arranged for a water delivery. Mr Bekker states that he verbally told the contractor to have a look at the tank, assuming that they would report any apparent issues, which they had not. Mr Bekker produced recent photographs showing the inside of the tank, like that of the tenants. Mr Bekker states that apart from filling the tank that no further action was necessary, and that the water was deemed “fine.” Mr Bekker states that there is no leak and no broken lid. Mr Bekker offers no explanation as to how a frog may have entered the tank but points out that the area immediately surrounding the tank is a low - lying marsh.
- The issues are whether there is sufficient evidence to prove a defect with the tank, and when reported did the landlord fail to respond appropriately. On the evidence produced by the tenant I am not satisfied that there is a defect with the tank. There are no photographs of holes or a broken lid. The photographs taken showing the tanks interior are insufficient to determine its cleanliness or the waters contamination. I am not satisfied that Mr Bekker has failed to respond appropriately. The claim is dismissed. That the landlord has interfered with the reasonable peace, comfort, and privacy of the tenant to the extent that the conduct of the landlord has amounted to harassment.
- The tenant states there were several incidents which amount to an interference with their reasonable peace, comfort, and privacy, and that collectively these show a pattern of conduct amounting to harassment.
- The tenant states that on or about 01 April 2022, while engaging in a mutual text exchange concerning rent liability, they received a text message from the landlord stating, “please don’t push me I will lock the gate – pay or move out.” Mr Bekker acknowledged sending the message, explaining that it was an attempt to recover what he believed to be rent arrears.
- The text messages produced show that between 01 April 2022 and 19 April 2022, the parties discussed various matters relating to the tenancy, primarily concerning the rent and bond. In one of these messages Mr Bekker mentioned the consequences of failing to pay rent and remarked on the expense of legal representation.
- The tenant states that on 19 April 2022, the real estate agent who dealt with the sale of the property arrived and asked how much rent the tenant paid, stating that Mr Bekker had sent her. The tenant stated the real estate agents visit was unexpected and they were confused as to the agents ongoing involvement. Following the visit, the tenant sent a text message to Mr Bekker conveying their confusion about the visit. On 22 April 2022, Mr Bekker replied that he “did not know what she (the tenant) was talking about”.
- Mr Bekker stated that while he was aware that the real estate agent was assisting the tenant find alternate accommodation, he denied that he had instructed the real estate agent to intervene, as indicated by his text reply on 22 April 2022.
- The tenant has produced a text message dated 22 April 2022, in which the landlord requested to visit the property, or alternately, that the tenant take photographs of the locks, as he intended changing them after the end of the tenancy. The tenant replied that the timing of the proposed visit was inconvenient but took a photograph of one of the locks concerned and sent it to Mr Bekker. The tenant stated they found the request unsettling following Mr Bekker’s earlier threat to “lock her out.”
- On 27 April 2022, Mr Bekker placed a lawyer’s letter in the tenant’s letter box. The letter has been produced. It addresses termination dates, the bond, and rent owing. The tenant states that this was followed by an unsolicited text message on 28 April 2022, in which Mr Bekker stated, “Hi L, How do you intend paying for all your outstanding rent”.
- The tenant states that on 30 April 2022, they received a missed call from Mr Bekker. Upon returning to the property, the tenant discovered that Mr Bekker had visited the property and confronted the occupants, including one of the tenant’s adult children. Mr Bekker admitted to the invited visit stating that he had received several calls from neighbours concerned about the behaviour of the occupants. Mr Bekker stated that he felt that he acted non aggressively, intending to “keep the peace.”
- Later on 30 April 2022, the tenant sent a text message complaining about the visit. In response Mr Bekker replied that he intended visiting the property on 04 May 2022, to serve the tenant with a trespass notice, effective from 1pm on 08 May 2022.
- On 7.09pm on 04 May 2022, Mr Bekker entered the grounds of the property. The tenant was hosting a family gathering in the garage. Mr Bekker walked into the garage and placed a trespass notice on the table being used by the family before leaving. The tenant states they were embarrassed. The notice, stating the tenant was trespassed effective 1pm on 08 May 2022, has been produced. Mr Harris submits, while the notice mistakenly took affect at 1pm, an error as the tenancy did not end until midnight on 08 May 2022, that Mr Bekker was legally entitled to issue it. The tenant states that upon receiving the notice they mistakenly believed that they had to vacate by 1pm, causing anxiety. The tenant states that shortly after 1pm on 08 May 2022, Mr Bekker arrived to take possession.
- A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises (see s 38(2) Residential Tenancies Act 1986). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (see s 38(3) and Schedule 1A of the Act).
- In the case of Smith v Floris, Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated: Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that, however, one must bear in mind that landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis [ my emphasis] for a claim for breach of this type.
- 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 s 109(3) of the Act).
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
- Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
- These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness”.
- Each case will be determined on the facts proven and require an objective assessment as to whether the nuisance or intrusion impacting the quality of the tenancy is over and above that which a tenant could be reasonably expected to endure. Decision on interference
- The issue is whether any of the alleged incidents reach a threshold were they objectively amount to an interference with the tenant’s reasonable peace, comfort, and privacy, and if so whether individually or collectively, they constitute harassment.
- The landlord denies that the text interaction between the parties amounts to interference, labelling it as simply a “clash of personalities.” Mr Harris submits that the two visits to the property do not constitute breaches of section 48 of the Act, which deals with entry to the property with or without notice or consent, as Mr Bekker did not enter the dwelling on either occasion. During his evidence Mr Bekker reiterated on more than one occasion that he was an inexperienced landlord and that he had been always acted in good faith.
- Aside from the text messaging between 01 April 2022 and 19 April 2022, concerning the rent arrears and bond only, Mr Bekker’s conduct, in my opinion has exceeded what is considered reasonable according to the standard set in Smith v Floris. Moreover, this behaviour, which occurred over a relatively short period of time, can be described as harassment.
- The text message of 01 April 2022 threatening “to lock the gate”, which would if carried out have been an unlawful act, is in my opinion conduct over and above that expected in a tenant / landlord relationship.
- Having placed the lawyer’s letter in the letter box on 27 April 2022, Mr Bekker’s act of immediately following it up with a text was an interference.
- While Mr Bekker did not enter the dwelling on 30 April 2022, entering the section and confronting the occupants, despite his belief he had legitimate grounds, was in my opinion an interference.
- While Mr Bekker may or may not have been entitled to issue a trespass notice it would have been prudent to wait until the tenancy had ended. In this case however it is the way the notice was served that constituted the interference. Although he announced his intention to do so in the text message of 30 April 2022, visiting the property at 7pm during what was clearly a social gathering to issue an invalid trespass notice, in my opinion was an interference with the tenant’s reasonable peace comfort and privacy.
- Turning to the matter of exemplary damages. I am satisfied that Mr Bekker was aware of his conduct at the material time, the acts were intentional, although, I accept that he was largely ignorant of the provisions of the Act regulating is engagement within the landlord / tenant relationship. It is in the public interest that landlords are aware of and conduct themselves within the provisions of the Act. Having heard from the tenant, I am satisfied that Mr Bekker’s conduct has resulted in stress and anxiety. Taking these factors into account I award $1,000.00 exemplary damages. Landlord’s claims
How much is owed for rent?
- Mr Bekker claims that the tenant owes rent arrears of $ 2,604.00, which less the bond held by Mr Bekker would leave a balance owing of $1,104.00. The tenant disputes this amount and states that they made a rent payment covering the first week of the tenancy with Mr Bekker to the previous landlord, which they should have passed on, and a further payment made on or around 01 May 2022, has not been recorded on Mr Bekker’s rent summary. The tenant states that factoring in the bond that they owe rent arrears of $224.00. The rent records produced start on 07 March 2022, and not from the commencement of the tenancy. As the amount owing was clearly in dispute before the landlord’s application it would have been prudent for the landlord to have produced a rent summary from the commencement in 2020. Mr Harris accepts that the evidential onus of proving the rent arrears rest with the landlord. The landlord accepts that the tenant owes, less the bond, at least $224.00. I must also consider, relying on Mr Bekkers direction, that the tenant left the tenancy half a day before legally required. I therefore reduce the amount by $31.43. Accordingly, I award the landlord rent arrears to 1pm on 08 May 2022 of $1,692.58. Did the tenant comply with their obligations at the end of the tenancy to remove all rubbish?
- At the end of the tenancy the tenant must remove all rubbish, see section 40(1)(e)(ii)-(v) of the Act.
- The landlord has produced three invoices for skip hire totalling $1,605.00. Apart from Mr Bekker’s oral evidence that the tenant failed to remove all rubbish there is no other evidence produced in support, such as photographs showing the rubbish. There is insufficient evidence. I am unable to make an objective assessment. The claim for waste removal is dismissed. Costs
- Both parties seek reimbursement of their respective filing fees. Arguably both have at least been partly successful triggering the Tribunal’s discretion under section 102(4)(b) of the Act to order reimbursement of the filing fee. However, as reimbursing the filing fee to one would effectively cancel reimbursement to the other, and vice versa, I make no order for reimbursement of the filing fees.
- At the conclusion of the hearing Mr Harris advised that the landlord intended seeking costs, over and above reimbursement of the filing fee.
- Sections 102(2)(b) and (3) of the Act provide that that where any of the parties is represented by counsel, the Tribunal may order a party to pay the reasonable costs of the successful party.
- If, upon receiving this decision, the landlord considers that they are entitled to seek costs, they should file a memorandum with the Tribunal and provide a copy to the tenant, withing 7 working days. Upon receipt of the memorandum the tenant must respond within 7 working days, whereafter the matter will be determined based on the documents submitted. Name suppression.
- Both parties seek name suppression.
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
- Neither party has been wholly successful either bringing or defending the claims. Has either party been substantially successful?
- In this case the tenant has been successful in two of six claims made against the landlord, and has been wholly successful defending one, and partly successful in the defending the claims made against them. The landlord has succeeded in one of the two claims made, and successfully defended two of the six claims made against them. For the purposes of name suppression in my opinion neither party has been substantially successful. There are no grounds advanced on which to exercise the discretion in section 95A (4) of the Act. The application for name suppression is declined.