What was Tenancy Tribunal case 4525689 about?

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

How much money was awarded in case 4525689?

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 4525689?

The dispute type was not classified.

Where can I read the official tribunal order for case 4525689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10456368-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4525689 about?

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

How much money was awarded in case 4525689?

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 4525689?

The dispute type was not classified.

Where can I read the official tribunal order for case 4525689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10456368-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4525689 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The tenancy terminated on 8 March 2024.
[The landlord/s] is granted possession as of 16 April 2024.
Rent is paid until 20 June 2024. If the tenant vacates prior to that date (which is required), the rent must be reimbursed on a pro-rata basis. That amount can be credited to the amounts set out below.
Bekithemba M-Rushizha must pay [The landlord/s] $54,320.44 immediately, calculated as shown in table below. DescriptionLandlord loss of income$5,000.00 costs$50,000.00 Filing fee reimbursement$20.44 Total award$55,020.44 Bond-$700.00 Total payable by Tenant to Landlord$54,320.44
The landlord is granted leave to enforce this judgement immediately.
The application for rehearing and adjournment are dismissed.
The tenant’s claims are dismissed.
The landlord’s remaining claims are dismissed.

Reasons

Both parties attended the hearing, which was held over three days in April and May.
The tenant seeks work orders, compensation and/or exemplary damages for the landlord’s failure to lodge the bond, failure to maintain the premises, unlawful entry into premises, and harassment.
The landlord seeks possession of the premises, compensation/exemplary damages for failure to quit, rent arrears, and costs. Procedural background
The matter has a prolonged history, with significant delays while the tenant endeavoured to obtain representation.
There were a number of pre-hearing applications, and decisions, including, most significantly: a.A challenge to the jurisdiction of the Tribunal which was determined in an order dated 16 May 2023. b.An application to have [The law firm] removed as counsel for the landlord, determined in an order dated 2 August 2023.
The file was set down for hearing on 16 and 19 April 2024. The hearing notice was sent to the parties by email on 14 February 2024.
At 9:20am on 16 April 2024, the tenant applied for a re-hearing of the 2 August 2023 decision and sought an adjournment of the hearing for that to be considered.
Those applications were declined, with reasons to follow. Those reasons are included in this decision.
A further day of hearing was required. That was held on 16 May 2024.
Written submissions were sought and timetabled. The landlord was to file and serve submissions on or before 24 May 2024 with the tenant to reply on or before 4 June 2024. Rent summaries to 6 June 2024 were to be provided by both parties.
The Tribunal has received submissions from the landlord, together with an updated rent summary.
The tenant has not filed submissions.
Out of an abundance of fairness to the tenant, I delayed drafting this decision for more than a week, however nothing has been received, and a decision is required. Burden and standard of proof
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may 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 & McCarthy (DC) TT233/02, in practical terms this means that: ... [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 do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Background
In short, the background to this matter is as follows: a.The landlord operates a hotel in the Auckland CBD. The premises has [redacted]. b.The tenant has resided at the hotel since early 2017. The tenant says he moved in on 16 March 2017, the landlord says it was earlier. I do not consider a lot turns on the exact date. c.It is agreed that the tenant has a number of significant medical issues requiring ongoing treatment. d.It is also agreed that there has been ongoing involvement with the Ministry of Social Development (MSD). This has taken the form of both financial assistance and emailed discussions with the landlord. e.There are various documents and communications between the parties over the course of the tenancy, discussing rent and the term of the tenancy at various points. f.The only signed document covering the tenancy is a document entitled “Short Stay Guest Agreement”. While it is undated, it is agreed that this agreement was signed around March 2017. g.There are now significant issues with the bathroom in the tenant’s unit. Both parties agree these need to be remedied. h.There is a dispute as to what, if any, rent arrears are owed by the tenant, and alleged breaches of the Act by both parties. i.There was an interim agreement reached in mid-2023, which included the tenant agreeing to vacate [Room 1] by 17 July 2023, and reside in [Room 3], to allow repairs to be carried out in [Room 1]. j.The tenant did not move out of [Room 1]. k.On 1 December 2023, the landlord issued a 90-day notice to terminate the tenancy. l.That notice expired on 8 March 2024. m. The tenant remains in occupation of [Room 1]. Rehearing and adjournment
On 2 August 2023 the Tribunal issued an order declining the application to remove [The law firm] as counsel for the landlord, from which the tenant applied for a rehearing.
Decisions issued by the Tribunal are binding on both parties, however either party is able to apply for a rehearing or an appeal of that decision.
Section 105 of the Residential Tenancies Act 1986 relates to rehearings. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
The applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in the District Court Judgment of Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard, and that: [18] ... They most obviously apply ... to cases of procedural error e.g., a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available. [19] In my view, however, the words do not cover a complaint that the Tribunal was merely mistaken or wrong in its findings of fact or in its application of the law. There are two reasons for this. First the strength of the language in s 105 is such that something more than a mere wrong decision must be shown. The section does not speak of a decision being wrong, but of a substantial wrong or miscarriage of justice occurring. This implies obvious injustice, not merely an erroneous decision. [20] Secondly, if a mere erroneous decision is enough, whether the error is factual or legal or both, it would enable parties to in effect appeal any decision twice: once to the very Tribunal which made it by way of an application for rehearing, and then again to the District Court against the grant or refusal of the application for rehearing. Not only does that offend the general hierarchical nature of the appeal system, it would also make the time limit for filing notice of appeal against an original decision nugatory.”
The availability of new evidence may not justify a rehearing if that evidence was available and could have been obtained for the original hearing, even if it is better evidence than that given at the original hearing. In Mason v May [1995] NZTT 1328/95, the Tribunal said that, before a rehearing will be granted on the grounds of new evidence, “an applicant has to show that reasonable diligence was used to produce all relevant evidence at the hearing, and there must be an explanation as to why the new evidence only came to light after the hearing”.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.

Has a substantial wrong or miscarriage of justice occurred?

For the following reasons the tenant has failed to establish the grounds for a rehearing.
First, the application for rehearing is significantly out of time. An application for re-hearing is to be filing within 5 working days of the date of the decision, although the Tribunal can extend this time frame if it sees fit.
The tenant submits that the timeframe for filing the application should be extended because on 9 August 2023 his then counsel was appointed [redacted] and he was unable to properly consider whether to apply for a rehearing.
I note that 9 August 2023 was the 5 th working day after the issue of the decision on 2 August 2023. Any consideration of an application should have been well underway by that point. Had the application been filed shortly thereafter, I would likely have accepted it out of time.
However, there is no explanation for why the tenant then waited a further 8 months to file the application and filed the application 10 minutes prior to the scheduled commencement of the hearing.
That delay is extraordinary, and I declined to extend the timeframes for filing the application. The application is declined on the basis that it is out of time.
Even if I am wrong about that, I am not satisfied that the grounds for rehearing a made out.
The reasons for requesting a rehearing essentially amount to a disagreement with the Tribunal's findings on the facts and application of the law. As noted above, this is not sufficient to establish a miscarriage of justice.
The application was heard and supported by comprehensive written submissions. The tenant was represented by an experienced King’s Counsel.
Further, the tenant alleges that there is new evidence now available which supports his application. This material is not new. It consists of emails between the community law centre and [The law firm] flagging the potential conflict of interest. The hearing to disqualify [The law firm] was argued and determined on the basis that [The law firm] was aware of the potential conflict of interest, the question was whether it was sufficient to require [The law firm] to be removed as Counsel.
The emails from the Community Law Centre do not change that position.
Further, I do not accept that the material was not reasonable available prior to the initial hearing.
The tenant contacted the community law centre in April 2023 and the law centre replied. There was no further correspondence from either the tenant or his counsel until 7 August 2023 (after the decision was issued). The Law centre responded to that also. It was not until 12 April 2024 that the tenant actually requested a copy of his file from the Law Centre. It was provided that same day.
Had the tenant or his counsel requested the file earlier, it would likely have been provided earlier.
This is a case where insufficient steps were taken to obtain the material, rather than the material not being available prior to the hearing.
There was no procedural error. The Tribunal endeavours to keep its procedures relatively informal, in keeping with the purpose and intent of the philosophy which underpins the Tribunal. The tenant has not raised any significant issue in relation to the Tribunal's procedure that can amount to a ground for a rehearing, nor does the new material raise any additional concerns.
I am not satisfied a substantial wrong or miscarriage of justice has occurred.
Accordingly, the application for rehearing fails and is therefore dismissed.
The original order made by the Tenancy Tribunal on 2 August 2023 stands. Adjournment
The tenant sought to adjourn the hearing for his re-hearing application to be heard and for him to obtain counsel.
That application was dismissed following dismissal of the application for re- hearing.
The application for more time to obtain counsel was also dismissed. While I accept that it may have been preferable for the tenant to be represented, he did not explain or detail the steps taken to try and obtain new representation in the 8 months since previous counsel was appointed [redacted].
Section 85 of the Act requires me to exercise my jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.
That fairness must apply to both parties equally. Taking into account the existing delays, and the likely further delay for a new hearing to be set, the application for adjournment was declined. Possession
The landlord has applied for possession of the premises following the termination of the tenancy.
The tenancy ended on 8 March 2024, which was less than 90 days prior to my verbal decision granting the landlord possession of the premises on 16 April 2024. The requirements of section 64(1) of the Residential Tenancies Act 1986 are satisfied.
I set out the basis of the termination and the reasons for dismissing the tenant’s challenge to that notice now.
On 1 December 2023, the landlord gave notice to the tenancy on 8 March 2024 pursuant to section 51(2)(f). That equates to 98 days’ notice, which is more than the notice required by section 51(2)(f) of the Act.
Section 51(2)(f) allows a landlord to terminate a tenancy on 90 days’ notice if: (f)extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.
While material steps have yet to be taken, that is the result of the time taken to complete the hearing and issue this decision, and the fact that the tenant has not vacated the premises. I do not consider that this invalidates the notice given. It was intended that work commence earlier but that has not been possible.
The tenant seeks to have the notice set aside on the basis that it would be reasonably practicable for the tenant to live in the premises during the repairs;

Is it reasonably practicable for the tenants to remain in the premises?

The work required is completion of the cockroach eradication and a full refurbishment of the bathroom.
The work will take approximately 2 weeks and requires the room to be vacant.
The crux of the tenant’s argument is that he can move from the room for that two- week period, and then return.
The problem with this argument is that the landlord has been asking the tenant to do that for the past 2.5 years. The landlord has offered the tenant an identical room a floor above and offered to assist the tenant to move. The tenant refused the landlord’s assistance on the basis that some of the landlord’s staff are not vaccinated for Covid-19 and not all wear face masks. Although at no time did the tenant ask for assurances that the staff who helped would be vaccinated and wearing masks. An interim agreement was reached last year, in which the tenant agreed to move by 17 July 2023, and the landlord would contribute $200+GST towards the costs of movers. That agreement was not honoured by the tenant.
I consider that the landlord has taken reasonable steps to arrange for the repair work to be undertaken without terminating the tenancy. That has not been possible due to the tenant’s actions.
Accordingly, I am satisfied that it is not reasonably practicable for the tenant to remain in the premises.
The application the overturn the notice is dismissed.
Termination of the tenancy on 8 March 2024 is confirmed and the order for possession granted on 16 April 2024 is confirmed. Work orders
The tenant has applied for work orders.
Taking into account my decision in relation to termination and possession, this application is now otiose and is dismissed. Exemplary damages generally
Both parties have sought exemplary damages from the other.
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: 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 conduct.
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. Failure to lodge bond
Bekithemba M-Rushizha claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00.
The landlord has not lodged the bond, despite the jurisdiction finding. I find they have committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
I accept that the landlord’s breach is not intentional. Initially the landlord did not believe this was a residential tenancy. This was on the basis that its usual business is as a hotel, exempt from the Act. The finding of jurisdiction was on the basis of the actual facts of this particular case. It required close consideration, and I do not fault the landlord for not reaching the same conclusion independent of the application and Tribunal’s finding.
The bond should have been lodged after the finding that this was a residential tenancy.
However, the tenant obstructed the landlord in doing that by refusing to sign the bond lodgement form. He vehemently opposed what he saw as the landlord trying to hide past wrongs.
Further, I accept the landlord’s submission that the tenant has not suffered prejudice from the non-lodgement of the bond. A bond is a tenant’s money for the duration of the tenancy, and the tenant is entitled to its protection via lodgement with the bond centre. However, I am satisfied that there is little risk of the landlord being incapable of paying the bond back if directed.
Further, given the tenant’s contribution to the failure to lodge the bond I consider that it would be unjust to penalise the landlord for that, particularly by way of the stigma of an award of exemplary damages.
This application is dismissed. Rent records.
Bekithemba M-Rushizha claims the landlord has not issued a receipt for rent or provided rent records on request.
A landlord must give a written receipt immediately for any rent paid by cash.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00.
There is no evidence to suggest rent was paid in cash. Accordingly, the obligation for a receipt does not arise.
I am satisfied that the landlord has kept proper records of rent payments made by the tenant. These are not in the form usually seen in the tenancy jurisdiction. However, that is explained by the landlord’s ordinary business as a hotel and the practice of recording stays, charges and payments on a daily basis rather than weekly.
The landlord was able to, and did, provide the Tribunal with a rent summary when requested.
The tenant claims that the landlord did not provide rent records on request.
Section 29(3) requires that “on the written request of the tenant, the landlord shall also give to the tenant a written statement of the period to which any payment of rent relates.” I consider this anticipates a specific request for information.
The only request the tenant can point to is a text message requesting “...all information about & regarding me however & wherever it is held...”
I consider, as I indicated at the hearing, several times, that this is far too broad to be interpreted as a request for rent records under the Act. This is because, first, it makes no reference to rent, it is not in response to a discussion about rent, and it was made without any context from which the landlord could properly interpret it was a request for rent records.
For completeness, I do accept that the tenant is entitled to a copy of information held about him under the Privacy Act. However, the jurisdiction for determining complaints under that Act lies with the Privacy Commissioner.
I find that the landlord has not breached its obligations under the Act and this application is declined. Failure to maintain.
Bekithemba M-Rushizha claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
The parties agree, and have agreed for a considerable period, that the bathroom in [Room 1] is unusable and needs to be completely refurbished. However, the room must be vacated for that to happen.
The tenant refuses to vacate the room. At hearing, the tenant endeavoured to convince me that this was because there was no fumigation of cockroaches prior to his move. I do not accept that for the following reasons: a.There was no request for cockroach fumigation as a condition of moving rooms until the discussions in 2023. b.When there was discussion of cockroach fumigation in 2023, the landlord agreed to do that and, in fact, had it done.
Despite that, the tenant has still not vacated the room coming up 11 months past the date he agreed he would move by.
The landlord very much wants to attend to this maintenance. They wanted to replace the bathroom when renovating the remainder of the bathrooms in 2018, and they had regularly requested the tenant move to an alternative room to allow these repairs to be completed for more than 2 years now. The only thing preventing the repairs being completed is the tenants obstinance.
I find that the tenant is wilfully and unreasonable obstructing the landlord’s ongoing efforts to attend to the cockroach eradication and the repairs to the bathroom. His application for compensation for the landlord’s failure to do the very thing they have been trying to do for a significant period, but he has prevented, is perverse.
I find that the landlord has not breached its obligations in relation to the bathroom in [Room 1].
In relation to the remainder of the request for repairs, these are as follows: a.a leaking sink in [Room 1]’s bathroom, which he says he notified the landlord of on 13 March 2020, and for which he says he has been emptying buckets of water throughout the tenancy; b.the toilet in [Room 2], which he says was flooding persistently for two and a half years; c.the shower in [Room 2], which he says was lopsided and did not drain properly; d.the microwave in [Room 2] by the [The landlord/s] having removed it; and e.the hob in [Room 1], about which he says that only one ring worked throughout, and which he says he notified [The landlord's representative 1] of in March 2020.
The landlord accepts that the tenant raised the issue of the leaking sink, that he removed the microwave from [Room 2], and the repair of the hob. However, the landlord does not accept that these items were raised in 2020.
The landlord says that the leaky sink was raised in July 2022. This is consistent with a text message from the tenant on 20 July 2022, and repair of the sink on 3 August 2022.
The landlord says the microwave in [Room 2] was removed as it was needed in another room. [Room 1] was the tenant’s primary residence, and no request for the use of the microwave in [Room 2] was made by the tenant.
The landlord says that the faulty hob was notified in 2021 and was repaired shortly later. The tenant accepts that the hob was repaired in 2021.
There is no documentary evidence of the issues with the shower and toilet in [Room 2] being raised with the landlord, and the landlord denies being made aware of this. [Witness 1], who was in responsible for maintenance did not receive any maintenance requests for these items.
There is no evidence of the earlier requests for repairs to the sink and hob in [Room 1].
The tenant says that he raised these issues orally.
Even now there are no photos, documents or any other material showing the condition of the bathroom in [Room 2].
There was no 14-day notice to remedy issued for any of the alleged issues at any point during the tenancy.
For completeness, I accept that there is an email on 21 June 2022 referring to the bathrooms in both [Room 2] and [Room 1] needing work. [The landlord's representative 1], who authored that email, explains that by that point, the tenant had used both rooms so long that they essentially became one in his mind. [The landlord's representative 1] reiterated that he was never made aware of any maintenance issues in [Room 2].
I am in the position of having to make credibility finding on these points. I accept the evidence of the landlord. [Witness 1] was clear that maintenance issues were attended to promptly by the hotel management, whenever they arose. This is consistent with the landlord’s prompt attention to maintenance issues that were accepted as raised. [The landlord's representative 1] is clear that he was not made aware of the issues with the bathroom in [Room 2]. He did see a number of towels on the floor during an inspection but did not associate that with issues with the shower, nor were issues raised with him.
I found [The landlord's representative 1] to be a credible witness. He was considered and careful in his evidence. He was prepared to make appropriate concessions were necessary and remained composed and patient despite repeated allegations that he was lying.
I did not find the tenant to be a compelling witness. He was vague, easily offended, strayed off track repeatedly, and his evidence tended to contradict itself. A good example of this is that the tenant gave evidence that he requested the hob be repaired in 2020, and it was not attended until 2021. However, when giving evidence on the unlawful entry (he alleges) by [Witness 1] in 2017, and when cross examining [Witness 1], his evidence is that there were no issues with the hob prior to 2021.
I find that the landlord has not breached its maintenance obligations and this application is dismissed. Entry without notice
Bekithemba M-Rushizha claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
The tenant alleges that [Witness 1] entered his room without notice in 2017 to replace the hob. He further alleges that the landlord’s staff “burst” into his room on several occasions, including at least 5 times in July 2022. The names of the relevant staff members were not provided. He also referred to other hotel guests entering his room, although the dates of these alleged entries were not specified.
[The landlord's representative 1] accepts one instance of entering [Room 1] without giving notice in 2017. He effected this using a master key, and his evidence is that the entry was accidental. Essentially, he exited the elevator on the wrong floor and entered [Room 1] instead of [Room 3]. [The landlord's representative 1] immediately apologised, and this was accepted, in writing, by the tenant.
There is no record of any of the other alleged entries without notice. This does not appear to have been raised with the landlord.
In relation to [Witness 1]’s entry in 2017, I consider that this is not an intentional breach of the Act. [Witness 1] was engaged to undertake hotel maintenance as requested. He followed the standard procedures for hotel maintenance. At that time, [Witness 1], and indeed the landlord, were not aware that this would, some 6 years later be found to be a residential tenancy. I consider that approach taken was reasonable in the circumstances and did not breach the law.
The same applies to [The landlord's representative 1]’s entry in 2017. I accept, as the tenant did in 2017, that this was an accident and not a deliberate breach.
In any event, an application for exemplary damages must be made no more than 12 months after the incident complained of, so even if I am wrong in my conclusions, this application it out of time,
In relation to the remaining allegations, these lack sufficient detail and corroboration for me to be satisfied that they occurred, and if they did to conclude that they were deliberate acts by the landlord.
The tenant’s applications are dismissed. Harassment
Bekithemba M-Rushizha claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 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.
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.
The tenant alleges that the landlord has harassed him by repeated emails and messages about rent arrears, and by repeatedly locking him out of his rooms by deactivating his access card.
In relation to the first, the landlord accepts that there were repeated communications about rent arrears. They were designed to ensure that the tenant’s room was paid for, in advance, as required by the agreement signed.
The tenant accepted that the demand itself wasn’t harassment, rather he objected to the way in which the demands were made.
The landlord submits that demands for rent are not, prima facie, unlawful nor do they amount to harassment. The landlord accepts that there was an increase in demands for rent in 2022, however that was due to the quantum of arrears at that point, together with the ongoing requests for the tenant to move rooms so that repairs could be completed.
The landlord acknowledges that when reference is made to the rent summary now available, it would appear that demand for rent was made when there were not actually arrears. This is explained by the difference between the hotel billing system, which has difference rates depending on the demand for accommodation at the time. This was regularised after the determination that this was a residential tenancy. the landlord notes that the use of special event rates was not objected to by the tenant at the time.
I accept that the difference in the hotel billing system created issues in terms of the arrears. However, the landlord should have been more conscious of that when making formal demand for arrears. The rate the tenant was to pay for his room was usually agreed well in advance when his bookings rolled over, and the landlord, even as a hotelier, has an obligation to ensure that any demands for payment were accurate.
I consider it telling that the tenant did not object to these demands contemporaneously. It was only in August 2022 that he indicated, by text, that he felt harassed. That was also when the relationship between the parties had begun to deteriorate. However, I am mindful that a tenant does not need to advise a landlord that communication amounts to harassment for it to, in fact, amount to harassment.
What I must determine is whether the demands for rent - when there were no arrears - were so frequent that they amounted to a breach of the tenant’s quiet enjoyment. I do not accept that this has occurred in this occasion. It was only through the landlord’s preparation of the rent summary and later cross referencing that the fact that some demands did not accord with periods of arrears was discovered. The tenant cannot be retrospectively harassed.
For completeness, I do not accept that demand for rent arrears which are actually owed amounts to harassment, unless the tone, frequency or manner of communication is so egregious that it reaches that threshold. For example, I do not consider that emailed or text message demands during daytime hours would amount to harassment, whereas frequent late-night phone calls might.
In relation to the lock outs, the tenant provided a list of the dates he was allegedly locked out of his room.
There is no contemporaneous documentation confirming the vast majority of these.
Further, the majority involved lockout for a matter of minutes before the tenant’s access card was reinstated.
The tenant alleges longer lock outs on: a.22 June 2022 – a period of 1 hour. He was reluctant to tell reception as he was in a bathrobe at the time. b.27 June 2022 – almost 4 hours in the very early hours of the morning. The tenant phoned the front desk but did not go down. He still had access to [Room 1]. c.10-11 August 2022 – overnight. However, the tenant had access to [Room 1]. New keys were slipped under the door during the night following his texting [The landlord's representative 1] at home. The tenant does not accept that the keys were provided because no CCTV footage was given showing the time. However, on waking he did have them. d.30-31 May 2023 – 12 hours. e.1 September 2023 – 7 hours – even the night manager’s master keys do not work.
The tenant’s position is that all instances in which the keys did not work were deliberate acts by the landlord to deny him access to his rooms. This includes the instance when the master keys also did not work.
There is no contemporaneous documentation for most of these instances, and no complaints were made to the landlord about them.
The incident on 11 August was notified to the landlord. [The landlord's representative 1] received a text message at home and contacted the hotel to arrange access for the tenant. The landlord notes that the reception desk is manned 24/7 and that the tenant did not go to reception to have his card re- activated. This would have resulted in a much prompter solution.
[The landlord's representative 2] acknowledged that the 30/31 May incident was raised with him, during work hours. He noted that the magnetic strip on the tenant’s card was badly damaged, which may explain why it did not work. The tenant did not want a new card.
There is no evidence about what the tenant during the period overnight to have his access restored. There is, of course, an obligation to take steps to mitigate loss, and this would include seeking to have access restored.
Further, the tenant’s evidence is that [The landlord's representative 2] was surprised that his access had expired. The landlord submits that this counts against this being a deliberate action by the landlord.
In relation to the 1 September incident, [The landlord's representative 2] was telephoned about this on his way to work at 6:30am. He told the night manager to cut a new card for the tenant. As he did not hear further, he believed this incident was resolved.
The landlord’s position is that none of these incidents was a deliberate locking out of the tenant. Rather than magnetic key cards do fail at times. They are easily reprogrammed on request, and there was never a direction from the landlord to staff that the tenant’s access be blocked deliberately.
The tenant gave evidence that staff had told him that [The landlord's representative 1] had instructed them to block his access. That is denied by [The landlord's representative 1]. The relevant staff members were not named, and not attended the hearing to give evidence, nor were statements from those employees provided.
I consider there is insufficient evidence to prove the majority of these incidents took place. The list of dates was only provided following a direction from the Tribunal at the end of the second day hearing. Up until that point, the tenant’s evidence about the dates changed, as did the number of incidents. The tenant has not explained how he recorded the dates and durations of the alleged lock outs, nor has he provided evidence of the steps he took to notify the landlord and regain access.
I accept that the incidents on 11 August 2022, 30-31 May 2023, and 1 September 2023 occurred.
That said, I do not attribute the same nefarious intent to the landlord that the tenant does. Rather, I accept that the hotel cards have magnetic strips and that those strips do fail on occasion, or the card readers fail. Given the duration of the tenant’s stay, it is not surprising that his would also fail on occasion, particularly if the card was damaged as [The landlord's representative 2] suggests.
I do not accept that this was a deliberate course of action by the landlord against the tenant, amounting to harassment.
The tenant’s application is dismissed. Rent
The landlord sought rent arrears. The tenant says rent is in credit.
There are three questions for me to determine – first, what was the correct rent for the first two weeks of the tenancy, secondly which rent summary is reliable, and thirdly, what arrears, if any are owed.
In relation to the first question, the landlord submits that the weekly rent set out in the agreement took effect from 1 April 2017. The landlord bases this submission on an email exchange between the landlord and MSD which indicated that the tenant was booked and paid up to 1 April 2017. The amount paid, to 1 April 2017, accords with the amount recorded the landlord’s rent summary. MSD and the tenant then negotiated a long-term rate, and that applied form 1 April 2017.
I accept that submission. While it is unfortunate that this was not recorded fully at the time, I consider this interpretation is accurate based on the available documentation, and that it is the most favourable of the situation most favourable to the tenant.
Having received the landlord’s rent summary I accept that as of 6 June 2024 the rent was $770 in credit. That effectively means rent is paid until 20 June 2024.
The tenant alleges the rent is several thousand dollars in credit.
The tenant provided bank statements showing a portion of the rent paid in mid- 2022. The tenant alleges that this shows that the landlord is not accurately recording rent payments. However, a reconciliation shows that all of the tenant’s rent payments are shown on the landlord’s rent summary.
The tenant alleges that the landlord has “mischievously or negligently” recorded the dates of payments incorrectly.
This application was made difficult to determine by the very late filing of a rent summary by the tenant. This was filed at 6pm on the third day of hearing. The landlord’s rent summary was filed in December 2023. There was no excuse for the late filing by the tenant, except that the tenant believes that he did not need to tip his hand in advance of the hearing, although I had previously cautioned him that was not the case in civil matters. I am satisfied that the late disclosure was tactical, rather than inadvertent, as the rent summary was emailed to the Court, with something of a flourish, during the cross examination of [The landlord's representative 2] about it. This is an arrangement spanning 7 years, and expecting the Tribunal and the landlord to absorb and respond to the rent summary instantly was decidedly unhelpful.
I sought updated rent summaries from both parties having done a preliminary reconciliation myself.
The landlord provided an update rent summary, together with an exported list of all payments made by the tenant, or on behalf of the tenant, to the landlord’s bank account for the duration of the tenancy. the tenant did not provide an updated rent summary.
The tenant’s rent summary included payments totalling $4,215.50 which are not shown in the landlord’s bank account records.
The landlord does not accept those payments were made.
I am satisfied that the landlord’s rent summary to 6 June 2024 is an accurate reflection of the rent due and the rent paid. I accept that considerable effort has gone into endeavouring to reconcile all payments and respond to the tenant’s claims.
Further, my own reconciliation from the tenant’s bank statement showed that the landlord had recorded all payments. This gave some confidence in the accuracy of the landlord’s records, which was fortified by the provision of the landlord’s bank records to confirm payments received.
Accordingly, I am satisfied that as a 6 June 2024, the rent was $770.00 in credit. If the tenant vacates the premises prior to 20 June 2024, the rent must be refunded, on a pro-rata basis. That can used by the landlord to offset the amounts awarded in its favour, but a letter confirming the amount off set must be emailed to the tenant. Failure to vacate premises.
[The landlord/s] claims the tenant did not vacate the premises on 8 March 2024 the date the tenancy ended.
A tenant must vacate the premises on the termination of the tenancy.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
The tenant remains in the premises, despite the notice to terminate, and the oral decision of the Tribunal upholding that notice. I find they have committed an unlawful act.
That said, I do not consider, in the circumstances that an award of exemplary damages would be just, for the following reasons: a.The termination took place in the course of these proceedings. It was not entirely unreasonable for the tenant to seek to be heard on whether the notice was valid, despite not formally amending his application in that respect. b.Following the oral decision, the tenant sought reasons for the decision which have been delayed be the filing of submissions. c.The tenant has continued to pay rent for the period he remains in occupation. d.The prejudice to the landlord, in terms of compliance with s64 has been mitigated by the oral decision granting possession.
The Tribunal is likely to take a different view if this order is not complied with. Loss of income
The landlord seeks loss of income for the reserving of [Room 3] for the tenant to move into following the interim agreement reached in mid-2023.
The landlord seeks costs of $18,630.02 as of 19 April 2024. They are calculated on the basis of the landlord average occupancy rate of 56.8% multiplied by the average nightly rate for the period. That calculation gives a daily loss of $76.88.
If I accept that the loss has been incurred, I consider that it would end on 8 March 2024, which is the date the tenancy terminated. There was no reason for the landlord to reserve [Room 3] beyond that point.
Using the landlord’s daily rate calculation, that would reduce the loss to $15,401.06.
I accept that there is a loss suffered by the landlord as a result of the tenant’s breach of the agreement. My view is that the interim agreement was, essentially, a variation of the tenancy to move the premises from [Room 1] to [Room 3] from 17 July 2023. The tenant’s failure to move resulted in the loss of rent in [Room 3] during that period.
However, I do not consider that the full rate should be awarded against the tenant. While there is no evidence to suggest that the room was not kept vacant for the relevant period, taking into account the need for fair and expeditious resolution of disputes, I consider that a nominal figure of compensation is more appropriate.
I award $5,000.00 pursuant to section 77(2)(n) of the Act. Costs
The landlord seeks costs from the tenant.
I sought submission from the landlord in relation to the position if the tenant was legally aided. The landlord submits that s102 of the Act does not prohibit costs from legally aided persons.
Further, the landlord submits that s45(1) of the Legal Services Act 2011 sets out the position where a person received legal aid in a “civil proceeding” in a “Court”. The Landlord submits that Tribunal proceedings do not meet the definition of “civil proceeding” as defined in the Legal Services Act, nor is the Tribunal a “Court.” The landlord submits that s45 does not prevent an award of costs.
I accept those submissions, and I am grateful to the landlord’s counsel for assistance on this point.
Section 102 of the Residential Tenancies Act 1986 (RTA) relates to costs. Section 102(2) confirms that the Tribunal “may make an order” where “any of the parties was presented by counsel”. Subsection 3 confirms that an order may be made to a party for “the reasonable costs of that other party in connection with the proceedings.”
It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party.
What is considered to be ‘reasonable costs’ will depend on a range of factors. In Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 Justice McGechan, in his reserved costs decision, held that: ...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable contribution’ earlier determined falls within a middle range, say 40% to 70%,there is a feeling of some comfort...
The High Court confirmed that when a party is represented by counsel, that the following factors are relevant to be considered when assessing costs: a. The length of the hearing. b. The sum of money involved. c. The legal and factual complexity. d. Whether the argument lacking substance was advanced, and e. The degree of success achieved by the parties.
Similarly in the judgment of David Blair Ltd v Hawkins Arms and Engineering Ltd (No 2) [1988] 1 PRNZ 162, Tompkins J considered a costs issue where the party was represented, and held: In addition to the length of the hearing, matters such as the amount of money involved, the importance either to the parties or generally of the issues, monetary or non-monetary, the legal and factual complexities, the amount of time required for effective preparation, the number and complexity of interlocutory applications and the likely or actual solicitor and client costs incurred, may, in appropriate cases, be relevant to the exercise of the discretion.
The issues covered by the applications and evidence, were not complicated. However, they were made significantly more complicated, and took significantly longer to hear as a result of the tenant’s actions, and the manner in which the claims were pursued. This is the type of case where a higher award of costs would be appropriate to account for the approach taken. However, I remain mindful of the respective financial positions of the parties and the need for fair determination.
As of 23 April 2024, the landlord’s total costs were $84,419.76. Additional costs for the final day of hearing and preparation of submissions are inevitable. Ordinarily, I would seek an updated memorandum from the landlord. However, as indicated to the parties there are time pressures on the finalisation of this decision. I have determined that rather than seek an updated memorandum and then apply the Holden factors, I can fairly determine costs on the available material, remaining mindful of additional costs.
Taking into account the conduct of the parties, their respective financial positions, the degree of success for the landlord, the length of the hearing, the sum of money involved and the legal and factual complexity of the matter, I consider that costs of $50,000.00 is appropriate, and order accordingly. This is a significant award, despite being around half the landlord’s actual costs. I do not reach this decision lightly, however I simply cannot overlook the impact of the tenant’s conduct on the duration and unnecessary complexity of this hearing. Suppression
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
The landlord sought suppression of its name. As it has been substantially successful in its claim, and in the defence of the tenant’s is entitled to suppression.
In the present case, the tenant was not wholly or substantially successful.
I have considered if I should grant a name suppression order for the tenant having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the tenant’s name and identifying details outweigh the interest of the open justice reporting principle.
In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a.It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b.The disputes before me are not unusual or other than the ordinary business of the Tribunal. c.The open justice principle requires the outcome of adjudication to be available to the public; and d.Weighing up the interests of the tenant and the public interest, the public interest outweighs the tenant’s interests.
Accordingly, no order is made for suppression of the tenant’s name and identifying details. Filing fee
Because [The landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4525689 — Tenancy dispute

Tenancy Tribunal case 4525689 — Tenancy dispute

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Is it reasonably practicable for the tenants to remain in the premises?

Order

Reasons

Has a substantial wrong or miscarriage of justice occurred?

Is it reasonably practicable for the tenants to remain in the premises?