What was Tenancy Tribunal case 4551975 about?

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

How much money was awarded in case 4551975?

Property Damage: $14,700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4551975?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4551975?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10458189-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4551975 about?

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

How much money was awarded in case 4551975?

Property Damage: $14,700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4551975?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4551975?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10458189-Tribunal_Order_Redacted.pdf.

Multiple Tenancies Tenancy Tribunal Case 4551975 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4551975 — net $14,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages (as per schedule	$14,700.00	Exemplary damages (as per schedule
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$14,720.44
Total payable by Landlord to Tenant	$14,720.44

Claims and awards in Tenancy Tribunal application 4551975 — net $14,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages (as per schedule	$14,700.00	Exemplary damages (as per schedule
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$14,720.44
Total payable by Landlord to Tenant	$14,720.44

Order

The Tribunal orders suppression of the all the tenants’ names and identifying details.
Rebecca Jane Allcock must pay The Chief Executive, Ministry of Business, Innovation, and Employment, in place of [The tenant/s] $14,720.44 immediately, calculated as follows: DescriptionTenant Exemplary damages (as per schedule) $14,700.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$14,720.44

SCHEDULE

NameInsulationHHSInsuranceBondProhibited transactions [Tenant 1]$300.00$500.00$500.00$1,000.00$1,200.00 [Tenant 2]$600.00$600.00$600.00$1,000.00$1,200.00 [Tenant 3]$300.00$500.00$500.00$1,000.00$1,200.00 [Tenant 4]$500.00$500.00$500.00$1,000.00$1,200.00

Total:$1,700.00$2,100.00$2,100.00$4,000.00$4,800.00

Rebecca Jane Allcock is restrained for a period of 3 years from the date of this order from committing the following breaches of the Residential Tenancies Act 1986: a.Failing to include, in a tenancy agreement a signed Insulation Statement (sections 13A(1A) and 13A(1F)) b.Failing to include, in a tenancy agreement a signed Health Homes Standards Statement (section 13A(1CA) and 13A(1F)) c.Failing to include, in a tenancy agreement an Insurance statement, (section 13A(2) and 13A(1F)). d. Failing to lodge bonds (sections 19(1)(b) and 19(2)). e. Requiring tenants to enter into prohibits transactions (section 137)

Reasons

Both parties attended the hearing and were represented by counsel.
The applicant alleges the landlord has breached the Act in relation to five tenancies. It seeks exemplary damages on all breaches, together with a restraining order preventing further breaches of the Act.
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 (in this case, the chief executive) 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
The Applicant has brought proceedings on behalf of the tenants pursuant to Section 124A(1)(a) of the Act.
The relevant addresses and tenancies are: • 3/23 Busby Street, Blockhouse Bay in Auckland, where the tenant was [Tenant 1]. • 1174 New North Road, Mt Albert, Auckland, where the tenant was [Tenant 3]. • 128 Haverstock Road, Sandringham, Auckland, where the tenant was [Tenant 4]. • 130 Haverstock Road, Sandringham, Auckland, where the tenant was [Tenant 2]. • 130 Haverstock Road, Sandringham, Auckland, where the tenant was [Tenant 2].
The landlord is the director and shareholder of Mirror Jellies Ltd, which was previously known as Find A Space Ltd. The business traded as Find A Space.
The landlord’s business model involved the landlord entering into tenancy agreements to rent properties which she then sublet to tenants on a room-by-room basis.
The landlord did not reside at any of the properties.
In February 2022, a Compliance Officer from Tenancy Services commenced a proactive audit into properties managed by the landlord.
In June 2022, a referral was made to an investigator in the Tenancy Compliance and Investigations Team (TCIT) as there were concerns that the landlord had breached the provisions of the Act. TCIT conducted investigations into multiple properties managed by the landlord, including the five which are relevant to this application.
On or about 18 October 2022, the landlord advised TCIT that she did not accept that she was a landlord for the purposes of the Act, as the tenants were in a flat sharing arrangement. Such an arrangement could be excluded from the Act by Section 5(1)(n) of the Act. 1174 New North Road
On 30 August 2022, TCIT conducted a site visit at 1174 New North Road, Auckland. During the visit [Tenant 3] provided a copy of his tenancy agreement. This was made available to the Tribunal. [Tenant 3]’s tenancy commenced on 16 March 2022. 128 Haverstock Road
On 30 August 2022, TCIT conducted a site visit at 128 Haverstock Road in Auckland. During that visit, TCIT spoke with [Tenant 4] who advised that the landlord used to be his property manager.
[Tenant 4] provided a copy of his tenancy agreement. That was also provided to the Tribunal. [Tenant 4]’s tenancy commenced on 19 May 2022.
In evidence, [Tenant 4] confirmed that: a. there were eight tenants living in the six-bedroom property at Haverstock Road. b. He commenced living at the address in about June 2020, and his tenancy ended three weeks prior to the hearing. c. The occupants of the address shared facilities, including a bathroom, kitchen and living space. d. [Tenant 4] confirmed that the landlord did not live at the property. e. When he moved in, he paid two -three weeks rent as bond, and paid rent weekly. f. [Tenant 4] confirmed he did not receive insulation, insurance, or healthy home statements during his tenancy; and g. confirmed under cross-examination that his bond had been returned to him following the end of his tenancy. 2/23 Busby Street, Blockhouse Bay
On 14 October 2022, TCIT conducted a site visit at 2/23 Busby Street, Blockhouse Bay. During that visit TCIT spoke with [Tenant 1], who advised she moved into the property on 18 March 2022. The property management company was Find A Space and the landlord was her previous property manager.
The landlord did not live at the property, she paid rent to the landlord, and she paid a bond of $1,185 when she moved in.
[Tenant 1] provided a copy of her tenancy agreement and confirmed that she thought she received a copy of the insulation statement for the premises. 130 Haverstock Road
On 30 August 2022, TCIT conducted a site visit at 130 Haverstock Road, Auckland. During that visit TCIT spoke with [Tenant 2]. [Tenant 2] advised that his tenancy started on 4 January 2021, he paid two weeks bond in advance, and had not received a receipt for his bond.
He paid rent and the bond to the landlord, and he did not receive insurance, insulation, or healthy home statements with his tenancy agreement.
[Tenant 2] provided two tenancy agreements, one dated 22 August 2021, and one dated 30 December 2021.
[Tenant 2] confirmed that he only paid one bond despite signing two consecutive tenancy agreements.
For all tenancies, the bond centre has confirmed that no bonds were lodged.
There was a previous TCIT investigation into the landlord’s tenancies. This was conducted by a previous TCIT employee, [The former TCIT employee]. As part of that investigation, the landlord emailed [The former TCIT employee] a copy of a tenancy tribunal decision relating to a property at 99 Bordeaux Parade in Te Atatu. The Tribunal, on that occasion, had declined jurisdiction. [The former TCIT employee] closed his case as he considered the RTA did not apply to this relationship.
In evidence, [The former TCIT employee] confirmed that he does not give advice to landlords, and that rulings of the Tribunal would obviously override any advice given by Tenancy Services. [The former TCIT employee] also gave evidence of being under significant personal pressures at the time this investigation was completed and during the ending of his employment with TCIT. The previous TCIT investigation was closed on 30 July 2020.
The landlord relies, heavily, on the closing of the file in 2020 as demonstrating that her business does not fall under the jurisdiction of the Act. While she now accepts jurisdiction, she argues that this is relevant to her intention and culpability when the Tribunal is considering applications for exemplary damages.
For completeness, since the TCIT file was closed on 30 July 2020, the landlord has filed, as applicant, 16 separate applications in the Tenancy Tribunal, including applications for 99 Bordeaux Parade in Te Atatu (the same address she referred to [The former TCIT employee]), an application in relation to 130 Haverstock Road (for a different tenant, but a concurrent tenancy to [Tenant 2]’s), and an application in relation to 1174 New North Road, Mt Albert.
Of particular relevance was a decision of the Tribunal in Allcock v McCarthy [2021] NZTT 4323280, where, on 17 September 2021, the Tribunal confirmed the jurisdiction of the Tribunal over 99 Bordeaux Parade Te Atatu South. The Tribunal noting that the Act applies to “every tenancy for residential purposes except as specifically provided”. The Tribunal went on to note the specific exceptions to the Act which are set out in Section 5 and confirming that the relevant exception which may apply to cases of flatmates or boarders, is Section 5(1)(n) of the Act. However, the adjudicator noted that a landlord must live at the tenancy premises, and it be used principally as their place of residence for that exception to apply. Accordingly, because the landlord did not live at 99 Bordeaux Parade, the Act applied.
The adjudicator further reinforced that a waiver of a tenant’s right to have a bond lodged is of no effect, and that a tenant cannot contract out of the Act to their detriment. The Tribunal referred to the High Court decision of Robinson v Auckland City Council, HC Auckland HC70/95, 29 September 1995, which confirmed this interpretation of section 11 of the Act.
Further, the Tribunal was sufficiently concerned with the interests of current and future tenants at the tenancy address, or at other locations where the landlord or her company are a landlord, that she considered the public interest in publication of the landlord’s name outweighed the application for suppression. The reason for this was that there were, “A number of provisions in the Tenancy Agreement, including providing that the bond would not be lodged, that may be inconsistent with the provisions of the RTA to the detriment of tenants. For example, clauses 1, 5, 6, 7, 8, 13, 15, 16, 26 (there may be others).”
The Tribunal further stated that, “The landlord said that her company leases property and that she and/or her company then sublet to residential tenants. A landlord must know and abide by its legal obligations. I encouraged the landlord to seek legal or other expert advice as soon as possible.” The law
The following sections of the Act are relevant, and warrant setting out in full.
Section 4, which states: This Act applies to every tenancy for residential purposes except as specifically provided.
Section 5 sets out the exceptions to the Act. I haven’t included section 5 in full given the landlord’s acceptance of Jurisdiction.
Section 10 which states: Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
The relevant portions of Section 13A relate to the contents of a tenancy agreement and state: 13A Contents of tenancy agreement ... (1A) The landlord must include in the tenancy agreement a statement, made and signed by the landlord, that provides the following information to the tenant (subject to subsections (1B) and (1C)): (a)whether or not there is, as at the date of the tenancy agreement, any insulation installed in connection with any ceilings, floors, or walls that are at the premises: (b)details of the location, type, and condition of all insulation that is, as at the date of the tenancy agreement, installed in connection with any ceilings, floors, or walls that are at the premises: ... (1CA)The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a)that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b)including the information (if any) prescribed by regulations under section 138B(5). ... (1D) The requirement that the landlord’s statement under subsection (1A) or (1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement. (1DA) However, the landlord’s statements under subsections (1A) and (1CA) can be combined, with the landlord signing once to confirm both statements (in addition to the landlord signing the tenancy agreement). ... (1E) The landlord’s statement under subsection (1A), (1CA), or (1CB) does not affect the landlord’s duties in respect of insulation or the healthy homes standards under section 45(1) or 66I(1) or otherwise. (1F) The landlord commits an unlawful act if— (a)the landlord fails to comply with subsection (1A), (1CA), (1CB), (2), (3), or (4); or (b)the landlord’s statement under subsection (1A), (1CA), (1CB), (2), (3), or (4) includes anything that the landlord knows to be false or misleading. ... (2)The landlord must include in the tenancy agreement the following information about insurance of the premises: (a)if the premises are not insured, a statement that they are not insured; and (b)if the premises are insured, a statement— (i)setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii)informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or 66J(5)).
“Tenancy agreement” is defined in the Act as: tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement.
Section 19 relates to Bonds and states: 19Duties of landlord on receipt of bond (1)Where any person pays to the landlord, or to any other person on behalf of the landlord, any amount by way of bond (whether the amount is for the whole or part of the bond), the following provisions shall apply: (a)the person who receives the payment shall forthwith give to the payer a written receipt, signed by that person, showing— (i)the address of the premises to which the payment relates; and (ii)the amount and nature of the payment; and (iii)the date of the payment; and (iv)the name of the payer (if known to the person who receives the payment): (b)the landlord shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant. (1A) Subsection (1) does not apply if a bond of 1 week’s rent or less is paid in respect of a boarding house tenancy. In that case, section 66D applies instead. (2)Failure to issue a receipt, or to forward any amount received, in accordance with this section is hereby declared to be an unlawful act. (3)A landlord who fails to comply with subsection (1) commits an infringement offence and is liable to a fine or an infringement fee specified in Schedule 1B.
Section 137 refers to prohibited transactions, and states: 137 Prohibited transactions (1)No person shall— (a)enter into any transaction, or make any contract or arrangement, purporting to do, whether presently or at some future time or upon the happening of any event or contingency, anything that contravenes or will contravene any of the provisions of this Act; or (b)enter into any transaction or make any contract or arrangement, whether orally or in writing, or do anything, for the purpose of or having the effect of, in any way, whether directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of this Act. (2)Requiring any person to enter into any transaction, or to make any contract or arrangement, in contravention of subsection (1) is hereby declared to be an unlawful act. .... Exemplary damages generally
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. Jurisdiction
Section 4 of the Act states that the Act applies to every tenancy for residential purposes, except as specifically provided.
Section 5 sets out the exceptions to the Act.
Right up to the conclusion of evidence at the hearing, the landlord maintained the position that she was not subject to the jurisdiction of the Act, arguing that either Section 5(1)(n) of the Act or Section 5(1)(s) of the Act are applied to her position.
Section 5(1)(n) requires that the principal purpose of a premises be as the landlord’s place of occupation. The landlord did not reside in any of these premises during the tenancies. It is clear, from the plain wording of Section 5(1)(n) of the Act, that this exception could not apply to the landlord’s business operation. Any doubt about that is then removed by the decision of the Tribunal in Allcock v McCarthy.
Section 5(1)(s) of the Act relates to a tenancy agreement which is genuinely entered into to enable a tenant (the sublandlord) to sublet the premises to provide accommodation for: (a)Other people for commercial gain; or ... (b)It is not entered into to provide accommodation for the sublandlord or to evade this Act or any of its provisions, and (c)Expressly provides that the sublandlord will not personally occupy the premises.
The possibility that this exception might apply was raised fairly close to hearing. My view is that this section applies to agreements between property owners and parties, such as the landlord, who enter into arrangements which are essentially commercial leases for the purposes of subletting the premises for commercial gain. A common example of this type of arrangement is the leases entered into by Kainga Ora, under which they obtain properties which can be sublet to eligible tenants. Section 5(1)(s) excludes the relationship between the property owner and the sublandlord but does not exclude the relationship between the sublandlord and the ultimate occupant of the premises.
For completeness, the landlord argued the s5(1)(s) point in Miller v Find A Space [2022] NZTT 4335595. In that the decision the Tribunal found, for slightly different reasons, that that subsection did not apply as the tenant agreement did not expressly statement that the landlord would not reside at the premises. The tenancy agreements in this case, suffer the same issue, so the landlord should have been aware that the exception did not apply to her.
Further, section 10 of the Act states that where a party to a proceeding contends that the Act does not apply in respect of any tenancy, that party must establish the facts upon which it is contended that the Act does not apply.
To put it another way, the landlord in this case must prove that the Act does not apply. The Court, in Adams v Massey University, Palmerston North TT43/94, 10 October 1994, stated that in order to give effect to the Act’s true intent and meaning, the exemptions in Section 5 should be interpreted strictly and not liberally. The alleged breaches The agreements
The applicant alleges that the tenancy agreements are in breach of the Act as the tenancy agreements do not contain: a.Insulation Statements, in breach of section 13A(1A) b.Health Homes Standards Statements in breach of section 13A(1CA) c.Insurance statements, in breach of section 13A(2) of the Act.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00.
The Act requires that a landlord must include a signed statement in the tenancy agreement that provides the following information: a.whether or not insulation is installed in any ceilings, walls and floors, and b.details of the location, type and condition of all insulation installed.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so.
There is a similar requirement for a signed statement in the tenancy agreement that confirms: a.that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); b.including the information (if any) prescribed by regulations under section 138B(5).
The Act allows the insultation statement and the HHS statement to be combined and signed once. However, that requirement for a signed statement is in addition to the requirement that the tenancy agreement itself be signed.
The Act also requires a landlord to include in the tenancy agreement the following information about insurance of the premises: (a)if the premises are not insured, a statement that they are not insured; and (b)if the premises are insured, a statement— (i)setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii)informing the tenant that a copy of the policy is available to the tenant on request.
There is no requirement that the insurance statement is signed by the landlord.
It is common ground that there were no formal, signed, insulation, HHS, or insurance statements attached to or part of the written tenancy agreements.
It is also accepted that [Tenant 1] told the TCIT investigator that she received an insulation statement, and that there was an email from the landlord to [Tenant 3] attaching the insulation certificate.
The applicant submits that the absence of the necessary statements in the tenancy agreements is sufficient evidence that the landlord has committed these breaches of the Act. The Applicant suggests that there is a sufficient pattern of behaviour to conclude that the landlord’s breaches extend to [Tenant 1] and [Tenant 3], despite the evidence to suggest that insulation material was provided to them.
The landlord’s counsel reminds me of the definition of “tenancy agreement” as including “any express or implied agreement” and notes the evidence of the landlord that the insulation, HHS and insurance statements were provided by Facebook messenger. It is submitted that, when taken together, this would constitute compliance with the requirements of the Act.
The Facebook messages were not provided to me. I have not seen the contents of the alleged statement to determine their compliance, or otherwise, with the Act. The dates that the relevant messages were posted was not provided to me, and there was no evidence to confirm that each of the relevant tenants were party to the messages when they were sent, or that they could view them later. There was no evidence that the tenants were aware of the messages.
There was evidence of a document – titled “Tenancy Agreement” – which was completed and signed by all the tenants. That document did not include the insulation, HHS or insurance statements. The tenancy agreement does refer to use of the Facebook messenger group for communications. However, it does not direct the tenants to the Facebook messenger groups for insulation, HHS or insurance information.
While I am prepared to accept that a tenancy agreement could be made up of a suite of documents, rather than one single document (for example, the incorporation of Body Corporate Rules into an agreement) there would need to be clear evidence that all documents were brought to the attention of the tenants.
There is insufficient evidence for me to be satisfied that the tenants were made aware of the insulation, HHS and insurance statements.
Further, the statements themselves are not available for me to consider and confirm that they are compliant with the Act. Essentially, the landlord is asking me to trust her evidence that the statements were posted, and that they complied with the law. The problem with this, is that significant portions of the landlord’s defence to these claims, and to the applications for exemplary damages is based on her supposed lack of knowledge of the Act and its application to her business.
I simply cannot rely on her assurances that the statements were available and that they are compliant.
Finally, I note the requirement that the insulation and HHS statements are “signed” by the landlord. There is no evidence available for me to confirm this, or on how a statement made on Facebook messenger could be signed.
I am satisfied that the landlord has breached the requirements of the Act in relation to insulation, HHS and insurance statements as these were not included in the tenancy agreements for all 5 tenancies.
All 15 breaches are proved, and I find that Ms Allcock committed unlawful acts.
In relation to [Tenant 1] and [Tenant 3], I do not overlook the evidence that they received insulation statements/an insurance certificate at some point during the tenancy.
However, I am not satisfied that this is evidence that those statements were included in the tenancy agreement, which is the requirement of section 13A(1A). The tenancy agreement does not contain them, and my findings in relation to Facebook messenger apply equally to these tenants.
In addition to the section13A requirements, section 45(1AC) requires a landlord to provide any HHS information requested by a tenant within 21 days of that request. Failure to comply with such a request is an unlawful Act. Complying with it does not, however, remedy a breach of s13A.
I consider it more likely that not, that the insulation statements were provided following a request, given it was only the insulation statements/certificates provided, and they appear to have been provided separate in time to the tenancy agreement. This was also the explanation given by Ms Allcock. When asked in cross-examination why she provided the statements via Facebook messenger if she believed the Act did not apply to her business, she replied that she provided them when asked, but most people weren’t “paranoid” and didn’t ask.
For completeness, I note the landlord’s submission that the applicant cannot reverse the onus of proof and require the landlord to prove that the statement was in the tenancy agreement. While it is correct that the onus is on the applicant to prove its case, the standard of proof is the balance of probabilities, and the fact remains that the tenancy agreement does not include the insulation statement. This is compelling evidence in support of the applicant’s position. The available evidence shows that the statement is not included in the same document as the tenancy agreement, but that a statement was provided at some point. Even if I accept that a tenancy agreement can be formed by a suite of documents, sufficiently proximate in time to form a complete agreement, there is no evidence of that proximate time in this case. That alone is sufficient for me to conclude that it is more likely than not, that the statement was not “in the tenancy agreement”. If the landlord wished to displace that conclusion, then something more was required. The bonds
The applicant claims the landlord has not lodged the bonds with the Bond Centre within the required time, or at all.
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 accepts that she did not lodge the bonds with the bond centre. I find she has committed an unlawful act. Prohibited transactions.
The applicant alleges that the landlord required the tenants to make an agreement which is contrary to their rights under the Residential Tenancies Act 1986.
No person may enter into any transaction, contract or arrangement, or do anything: a.that contravenes, or will contravene, any provision of the Residential Tenancies Act 1986; or b.for the purpose, or having the effect of, evading, defeating or preventing the operation of any provision of that Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $1,800.00.
The applicant alleges that the tenancy agreements contain the following provisions in contravention of the Act: a.The parties agreed not to lodge the bond, in contravention of s19(1)(b) b.The agreement could be terminated with 21 days’ notice after the initial 6- month term of tenancy, but if the agreement was terminated before the minimum term was over or without the appropriate notice, the bond would not be refunded, in contravention of ss 51, 22A and 22B, c.The landlord reserved the right to immediately evict tenants who engaged in smoking, drugs or illegal acts and the bond would not be refunded, in contravention of s51. d.The tenancy agreement would terminate automatically if the tenant’s visa expired or was rejected, in contravention of s51. e.The landlord reserved the right to terminate the agreement with 7 days’ notice if the tenant did not cooperate with the house rules or caused disruption to other house mates, in contravention of s51. f.The landlord reserved the right to terminate the agreement with immediate effect if the rent was in arrears for more than 7 days or if the tenant engaged in illegal activities and the bond would be forfeit; in contravention of s51 and g. At the end of the agreement the landlord would refund the bond to the tenant, but the landlord would deduct any money owing or cost of any damage, in contravention of ss22A and 22B of the Act.
The landlord accepts that list, subject to the following submissions: a.The right to termination on 21 days’ notice is in contravention only for the landlord. It is lawful if exercised by the tenant. The wording of the clause as to the bond is not in contravention, as a bond lodged with the bond centre may still be subject to a claim during a fixed term tenancy. b.Clause 8 states that a landlord has the “right to demand eviction” rather than actually evict. The same wording applies to the bond. c.In relation to clauses 8, 14, and 15 the contravention is the agreement stating that it is a landlord right rather than relying on its exercise through the Tribunal. d.That submission is repeated in relation to the bond at clause 22.
Clause 8 states: This is a smokefree house. Smoking/Drugs/any illegal act [sic] are not permitted in the house. The landlord reserves the right to demand immediate eviction of tenants who engage in an of these activities and the bond shall not be refunded.
While I accept the submission of the landlord in terms of the wording of the clause entitling the landlord to “demand” eviction rather than determining it, that does not apply to the refund of the bond as suggested.
Further, none of the acts referred to would allow application for immediate termination. A landlord can apply for termination of a tenancy without first giving notice to the tenant if rent is 21 days in arrear, for physical or threatened assaults and for actual or threats of serious property damage. Other breaches of the Act, which capable of remedy, require the landlord to first serve a notice on the tenant requiring remedy of the breach.
For completeness, I accept that assaults and damage to the property are illegal acts, but I consider that the clause is too broadly worded to be saved by that fact.
The provision seeking to contract out of lodging the bond is a clear and egregious breach of the Act. The bond remains a tenant’s property for the duration of the tenancy, and the requirement to lodge the bond with the bond centre is designed to protect what is, for many tenants, a significant sum from misuse by a landlord, to encourage the use of the Tribunal to settle disputes about the bond, and to protect a tenant against the landlord’s potential impecuniosity.
I consider that the other provisions relating to the bond must also be considered in light of the agreement that the bond not be lodged. While it is correct that applications can be made for payments from the bond for rent arrears, and damage, these require an application and determination by the Tribunal, or at the very least they require an application for release of the bond by the Bond Centre which will seek a response from the tenant prior to release and can decline to make a decision if it sees fit. Taken in combination, these provisions remove all the checks deliberately put in place to protect tenants’ bond money. Under this agreement, the balance of power is firmly with the landlord. The landlord accepted that in cross-examination.
Clause 14 states: The landlord reserves the right to terminate this contract with 7 days’ notice if the tenant doesn't co-operate and follow the house rules and roster duties or is being unreasonable and causing disruption to other house mates.
Clause 15 states: the landlord reserves the right to terminate the contract and evict the tenants with immediate effect if the rent is in arrears for more than 7 days or the tenant engages in illegal activities e.g., dealing/taking drugs or threatens/misbehaves with other tenants/landlords. In this situation the landlord [sic] shall forfeit the bond and no money to be refunded to the tenants.
While the landlord’s submission that application to the tribunal to terminate the tenancy can be made for breaches of the Act, or for anti-social behaviour or illegal behaviour, is correct, that does not save these provisions from being prohibited transactions.
The Act sets out the ground in which a landlord can terminate a tenancy, either on notice if the requirements of section 51 are met, or by application under the provisions of sections 55-61 of the Act. That process allows for determination of applications by an independent Tribunal in a fair and transparent manner, with the associated appeal rights.
There is no ability in the Act for a landlord to terminate a tenancy on 7 days’ notice for any of the reasons set out in clause 14. Further, an application to the Tribunal would not result in a mandatory termination for those reasons, rather the landlord would need to argue either anti-social behaviour (with the relevant notices) or a breach under s56 sufficient to warrant termination of the tenancy.
Tenancies cannot be terminated on notice for rent arrears. An application to the Tribunal is required. While a Tribunal could order termination if rent was 7 days in arrears and the appropriate notice to remedy was given, the landlord would need to satisfy the Tribunal that that the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.
These provisions at designed to avoid the need for the landlord to apply to the Tribunal and prove to the requisite standard that the tenancy should be terminated. They substitute termination either on notice or immediately if the tenant engages in behaviour judged by the landlord to be in contravention of those clauses. That removes the safeguards of an independent Tribunal to hear evidence and determine application for termination fairly and transparently, with the tenant able to be heard.
In relation to the remaining clauses, I agree with the parties that these also contravene the Act.
It is entirely clear that these clauses contravene provisions of the Act and that they are for the purpose, or having the effect of, evading, defeating or preventing the operation of provisions of that Act. They create entirely new grounds for termination, and means of dealing with bonds, which are significantly more onerous on tenants than those set out in the Act, and which significantly undermine the protections granted to tenants under the Act.
The landlord drafted the tenancy agreement and provided it to each of the tenants. The tenancy agreement was the required to be signed for the tenancy to commence.
I find that these are prohibited transactions and that, by requiring the tenants to enter into these agreements the landlord has committed unlawful acts.

Should exemplary damages be awarded?

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if 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.
In this context it is clear that “intention” concerns the act itself, not an intent to do something unlawful i.e. if the act itself was intended, an unlawful act will have been committed whether the landlord knew it to be unlawful or not.
In written submissions following the evidence, the landlord accepted the jurisdiction of the Act in respect of all five tenancies. She sought, however, to rely on the question of jurisdiction as impacting whether her unlawful acts were intentional, which is of course required for an award of exemplary damages.
The landlord submits that: (1)Her general understanding about jurisdiction was that the Act did not apply. She considered her operation “too boutique”, which she explained as a small rent and bond amounts, on terms flexible for tenants and therefore easier for both parties. It was on this basis that she submits her actions were not a deliberate evasion of the Act. (2)It was important to her how the previous investigation concluded, and what she was told by [The former TCIT employee]. (3)She gave evidence of how she saw the authority of Tenancy Services and TCIT, accepting that she was mistaken in her belief that the Tribunal was in some way subordinate to those bodies. The landlord submits that she should not be penalised for her misunderstanding about jurisdiction, including based on TCIT advice. It is the landlord’s submission that this reduces her culpability and does not justify the current submission of wilful blindness.
I do not accept those submissions. The very clear wording of Section 4 of the Act makes it clear that the jurisdiction of the Act applies to all residential tenancies unless one of the exceptions applies. The wording of section 10 makes it clear that the person seeking exclusion from the Act must prove that their property is exempt. The landlord’s evidence was that she, “...believed it was grey and I didn’t know, so I thought I was out.” This is in direct conflict with the wording of Section 4.
While [The former TCIT employee] may have closed his investigation on 30 July 2020, the landlord was clearly on notice from 17 September 2021 that the provisions of Section 5(1)(n) would not apply to premises she did not live at. The landlord was further on notice that the Tribunal was concerned about the manner in which she ran her business. The landlord was on notice that there were a number of provisions in her tenancy agreement which may be inconsistent with the provisions of the Act, and she was on notice that it was the Tribunal’s view that a landlord must know and abide by its legal obligations. The landlord was encouraged to seek legal advice in relation to the position. She has not done so. All of the tenancy agreements that this application relates to were signed after 17 September 2021.
It was put to the landlord in cross-examination that when it was “grey”, she would choose to apply the Act if it suited her and not apply the Act if it did not. The landlord accepted that proposition and that, with respect, is the crux of it. The landlord has an obligation to understand their legal obligations. She was put on notice of concerns the Tribunal had as far back as 17 September 2021, and encouraged to seek legal advice. The landlord chose not to do so, instead choosing to use the Act when it suited but deny jurisdiction when it did not.
It is entirely clear that the landlord’s actions in breaching the requirement for insulation statements, HHS statements, and insurance statements, that her unlawful acts in failing to lodge bonds and her unlawful acts in relation to prohibited transactions were intentional. If the landlord was genuine in her confusion around jurisdiction after the 17 September 2021 decision in Allcock v McCarthy, the proper course of action was to seek appropriate advice and ensure that she was aware of her obligations. It was not to ignore that decision and continue business as usual.
In relation to the effect of the breaches are, there is not significant evidence in relation to the actual impact of these breaches. The s13A breaches are regulatory provisions to ensure tenants are informed and to encourage compliance with the Act. I note the landlord’s submission that it can be presumed, based on the age of the properties, that these premises were likely compliant with the insulation and healthy homes standards. That presumption is not sufficient to prove compliance with the Act, but in any event, I am not required to determine that when looking at the effects of a failure to comply with the inclusion of various statements.
In relation to the bond, the tenants have an interest in maintaining the security of what is effectively their money for the duration of the tenancy. That is the purpose of the bond centre. The tenants were deprived of this security for the duration of the tenancy because of the landlord’s failure to lodge the bond.
In relation to the prohibited transactions, the effect of these was a lack of security for tenants within their tenancies in terms of the ability of their landlord to terminate the tenancy without following usual procedure, and a lack of security around return of their bond in the event the tenancy was terminated in accordance with those provisions. This is the sort of harm Section 11 is designed to prevent and Section 137 makes an unlawful act.
I consider there is a significant public interest in protection of tenants’ rights. Tenants are in an inherently weaker position when entering into tenancy agreements than landlords. Housing is a fundamental requirement, and often rent represents a significant portion of a person’s household expenditure. Being a landlord is a business. Business operators have an obligation to know the law and to ensure that their business practises comply with the law. There is a public interest in holding landlords to account and ensuring that the safeguards built into the legislation to protect tenants are upheld. The Tribunal cannot be seen to condone significant, repeat breaches of the Act.
Accordingly, I am entirely satisfied that exemplary damages are appropriate.
In relation to the quantum of exemplary damages, the Applicant seeks exemplary damages in the mid to high range to reflect the repeat nature of these breaches.
The landlord refers me to the decisions of Mauri Ora Ltd [2023) NZTT317168, and Chief Executive v Edgecumbe House Ltd [2024] NZTT4573609 and submits that any award should be on a global basis for each tenant, rather than a mathematical award of an amount for each act.
I agree with the reasoning of the Tribunal in Edgecumbe where the adjudicator noted at [15] that: a)Where unlawful acts are committed contrary to more than one of the sections listed in column 1 of Schedule 1A of the RTA, the Tribunal should award exemplary damages for each unlawful act rather than a global sum. b)Where MB MBIE brings proceedings under Section 142A RTA on behalf of more than one tenant, exemplary damages should be considered independently for each tenant, rather than a global sum awarded for all tenants. Otherwise, the tenants could be prejudiced by MBIE bringing a single claim on behalf of multiple tenants. c)Where more than award of exemplary damages could be made for the same underlying event, there should only be one order of exemplary damages.”
I have read, and agree with, the Tribunal’s analysis of the Gardiner v Upland Bay Investments Ltd CIV-2014-085-13, 27 August 2014, Wellington District Court, set out at paragraph [16]-[25] of Edgecumbe. I agree also that a Tribunal is able to choose between the competing approaches taken by higher courts and to this end, I adopt the reasoning of the Tribunal at paragraph [27] where the adjudicator noted that in other cases, the District Court had allowed individual awards for separate breaches covered by the same section of the Act, provided that each was its own unlawful act rather than containing an element of double punishment. As the Tribunal in Edgecumbe did, I consider that approach is consistent with Section 109(4), and it is the approach I also intend to take.
So, while failure to provide the insulation statement, healthy homes statement, and insurance statement are all unlawful acts pursuant to Section 13A(1F) of the Act, they are discrete obligations and failure to provide them are discrete breaches of the Act.
The amounts ordered are proved, with the following comments – a. I have reduced the exemplary damages for [Tenant 3] and [Tenant 1] in relation to the insulation statements to reflect the fact that they did receive the material. b. I have only made single orders in relation to [Tenant 2] as while he signed two agreements, he paid one bond, and the breaches in each agreement are the same. The damages awarded are increased however, to reflect that the landlord intentionally committed the acts twice in relation to [Tenant 2]. Restraining Order
In submissions the Applicant sought a restraining order in the event that exemplary damages were imposed.
This is challenged by the landlord on the basis that it was not sought in the original application to the Tribunal, and it would be unfair to make a restraining order in the absence of evidence on that point. It is correct, that the possibility of a restraining order was only raised by the Applicant in submissions. However, Section 109A confirms that the Tribunal can, on its own volition, make an order restraining the commission of further unlawful acts on the part of a tenant or landlord.
Further, the landlord had opportunity to make submissions on the appropriateness or otherwise of a restraining order in submissions and did not do so.
Section 109A 109A Tribunal may restrain further commissions of unlawful acts. (1) If the Tribunal makes an order against a person under section 109 on the ground that the person has committed an unlawful act, the Tribunal may, if satisfied that it is in the public interest to do so, make an order restraining the person from committing a further act of the same kind. (2) The Tribunal may make an order under subsection (1) on its own initiative or on the application of the applicant who applied for the order, under section 109, against the person sought to be restrained. (3) The Tribunal must specify the term of the order, which may not exceed 6 years. (4) Every person commits an offence who, being subject to an order under this section, intentionally contravenes the order. (5) A person who commits an offence against subsection (4) is liable on conviction to a fine not exceeding $3,600.
The landlord has breached the Act repeatedly. She was warned of concerns with her Tenancy Agreement by the Tribunal and continued to act in the same manner.
I am satisfied that a restraining order is appropriate to prevent further breaches of the Act and to ensure that future tenants are protected from this behaviour.
The restraining order will remain in place for 3 years from the date of this decision. Filing fee
Because the applicant has substantially succeeded with the claim, I have ordered reimbursement of the filing fee. Suppression
Where MBIE brings a claim on behalf a tenant under s 124A RTA, the Tribunal is required to order that the name and identifying details of the tenant not be published (s 95A(2) RTA).

Tenancy Tribunal case 4551975 — Exemplary damages at Multiple Tenancies

At a glance

Tenancy Tribunal case 4551975 — Exemplary damages at Multiple Tenancies

At a glance

Award balance

Claims & awards

Order

SCHEDULE

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

SCHEDULE

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions