What was Tenancy Tribunal case 4553929 about?

The tribunal order states: Goodwin Realty Limited T/A Goodwins must pay [The tenant/s] $4,851.44

How much money was awarded in case 4553929?

Compensation: Missing Goods: $3,331.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4553929?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4553929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9554733-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4553929 about?

The tribunal order states: Goodwin Realty Limited T/A Goodwins must pay [The tenant/s] $4,851.44

How much money was awarded in case 4553929?

Compensation: Missing Goods: $3,331.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4553929?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4553929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9554733-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4553929 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4553929 — net $4,851.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Missing goods	$3,331.00	Missing goods
Exemplary damages: Section 33	$1,500.00	Section 33
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,851.44
Total payable by Landlord to Tenant	$4,851.44

Order

Goodwin Realty Limited T/A Goodwins must pay [The tenant/s] $4,851.44 immediately, calculated as shown in table below. DescriptionTenant Compensation: Missing goods$3,331.00 Exemplary damages: Section 33$1,500.00 Filing fee reimbursement$20.44 Total award$4,851.44 Total payable by Landlord to Tenant$4,851.44

Reasons

The Tribunal must consider an application filed by the tenants against the landlord.
Only the tenants appeared at the hearing. I am satisfied that the landlord has been property notified of the hearing. I note that on 19 October 2023 the landlord contacted the Tribunal requesting an adjournment to allow them further time to prepare for the hearing. The request to adjourn was declined. As I am satisfied the landlord has been notified of the hearing, I will therefore proceed to consider the matter in the landlord absence.

BACKGROUND

The parties entered into a tenancy agreement for a fixed term tenancy to commence on 25 January 2019. The landlord is recorded as Goodwin Realty Limited, acting for an undisclosed principal. That means that Goodwin Realty Limited can sue or be sued and are liable for any order against them.
The tenancy premises were badly affected by the 2023 Auckland Anniversary weekend flooding, and having heard from the tenants, unquestionably the premises would have been uninhabitable.
On 7 February 2023 the landlord emailed the tenant stating that: I need you to confirm you are giving 2 days notice to end your tenancy for our records. Once received you can return the keys to our Mt Albert office...
The tenant responded that same day by asking “can I give 2 days notice sometime next week?”
The landlord replied on 8 February initially advising “sure, no problem” but in a later email stating that: The owner needs everything to be removed by Friday. Please let me know once everything is removed.
The tenant responded that same day to advise that “We are try to remove everything by Friday as much as possible...”, but noting it was challenging finding somewhere for their belongings, and asking if they could have until Monday.
On 10 February 2023 the tenant emailed the landlord to advise: I want to inform you, we went to the property in the evening yesterday (Thursday @ around 5pm) to do the rest of the cleaning and we noticed that some of our stuff is missing inside and outside the property. We raised the police complaint for that. There is no damage in the property (not door broken).
And then later that day the tenants wrote to the landlord: I feel very bad, we came to 13A Gifford take the rest of the stuff to remove and it’s everything already outside. We planned to take and return the key to your office today, but it’s make us treat like we kind of slave. And mentioned you in previous email someone came inside yesterday and took some stuff and today took everything outside and the carpet all removed. I think someone worked today before we vacate the house.
The tenants also provided photographs which show the carpets having been removed and in a pile on the grass.
On 20 April 2023 the tenant filed this application with the Tribunal.
A hearing was convened in Auckland in attendance was both tenants, there was no appearance by the landlord.

TENANTS CASE

The tenants state that on during the Auckland Anniversary flooding, their property flooded, with the water going about one meter up the walls.
The tenant states that subsequently the property manager advised they needed to give two days notice, and initially the landlord advised that was fine, but then subsequently the landlord advised they needed to vacate the premises on Friday.
However on the Thursday they went to the property and found that some items were already missing. The following day the tenants returned to the premises to find that the inside of the house had been stripped out and all of their belongings had been removed.

LANDLORDS CASE

I do not know the position the landlord takes in this matter.

ANALYSIS

The Tribunal must determine whether compensation and exemplary damages can be ordered in relation to the landlord disposing of tenant goods in the premises.
The starting point must be to recognise that the RTA is clear, that a landlord cannot simply take terminate and possession of the tenancy premises. To lawfully do so, the landlord must follow the requirements in the Act (see section 50).
Section 59 of the Act sets out how a tenancy can end when there is destruction of premises, which would be the case here. However that provision confirms that in order to terminate the tenancy the landlord must give the tenant a minimum of 7 days’ notice, or the tenant can give a minimum of 2 days. In either case the tenants rent must stop.
In this case I cannot see that either the landlord or tenants have given notice. Certainly I cannot see any evidence of the landlord giving 7 day’s notice to the tenant, and I also cannot see that the tenants had given notice when the landlord entered the premises and removed carpets and other tenant belongings.
However, even if the landlord or tenant had given notice (which I find they had not), the landlord still could not enter the premises at the end of the notice if the tenants were still in possession of the premises, the landlord would need to come to the Tenancy Tribunal for a possession order, allowing a Bailiff to retake possession of the premises – but that did not occur. Exemplary damages claim
I have no reservation in concluding that the landlord unlawfully entered the premises, and unlawfully took possession of it. In the course of that, I accept the evidence from the tenants that the landlord unlawfully disposed of the tenants goods, which of course the landlord cannot do.
Section 33 of the RTA applies, and holds: 33 Tenant’s goods not to be seized (1) The landlord shall not be entitled to seize or dispose of any of the tenant’s goods— (a) ... (b) for any other reason arising from the tenancy. (2) Seizing or disposing of any goods in contravention of subsection (1) is hereby declared to be an unlawful act.
I find that the landlord has seized and disposed of tenant goods, which is an unlawful act for which exemplary damages could be ordered.
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.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
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.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for a breach of section 33 is $3,000.00.
In this case I find that exemplary damages should be ordered. I consider it most likely that the actions of the landlord were intentional. The landlord is a property management company which most likely is aware of its obligations under the RTA as it relates to terminating tenancies, entry to premises and tenant goods. The effect for the tenants has been significant. They have had an intrusion into their home notwithstanding the damage from the flooding. They have lost goods. There is a very strong interest for tenants, landlords and the public generally that landlord do not unlawfully seize or dispose of tenant goods. It would be just to make this order.
In the circumstances I consider that an order of 50% of the maximum would be indicated. In setting that amount, I am minded that the landlord is a property management company, and further the significant impact that has occurred for the tenants.

COMPENSATION

With any claim for compensation, to receive an order the party must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred.
In this case the tenants seek compensation for replacement goods as follows: a. Bed, $1,100.00 b. Steele Cart, $558.00 c. Fans, $127.00 d. Shovels, $44.00 e. Plant boxes, $600.00 f. Hose, $100.00 g. Toolbox, $150.00 h. Cycle pump, $55.00 i. Knife, $80.00 j. Fishing rods and reels, $320.00 k. Racquet, $150.00 l. Skate board, $47.00
The tenants noted that their loss was actually much greater, because they had wide ranging smaller value items in the house that they have lost, but not claimed. I accept that is the case. But I have no reason to believe that the tenants have not lost the items set out above, so I make the compensation order as claimed in full.

FILING FEE

Because the applicant has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal can order name suppression to a party, and name suppression would be reasonable in this case.

Claims and awards in Tenancy Tribunal application 4553929 — net $4,851.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Missing goods	$3,331.00	Missing goods
Exemplary damages: Section 33	$1,500.00	Section 33
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,851.44
Total payable by Landlord to Tenant	$4,851.44

Order

Goodwin Realty Limited T/A Goodwins must pay [The tenant/s] $4,851.44 immediately, calculated as shown in table below. DescriptionTenant Compensation: Missing goods$3,331.00 Exemplary damages: Section 33$1,500.00 Filing fee reimbursement$20.44 Total award$4,851.44 Total payable by Landlord to Tenant$4,851.44

Reasons

The Tribunal must consider an application filed by the tenants against the landlord.
Only the tenants appeared at the hearing. I am satisfied that the landlord has been property notified of the hearing. I note that on 19 October 2023 the landlord contacted the Tribunal requesting an adjournment to allow them further time to prepare for the hearing. The request to adjourn was declined. As I am satisfied the landlord has been notified of the hearing, I will therefore proceed to consider the matter in the landlord absence.

BACKGROUND

The parties entered into a tenancy agreement for a fixed term tenancy to commence on 25 January 2019. The landlord is recorded as Goodwin Realty Limited, acting for an undisclosed principal. That means that Goodwin Realty Limited can sue or be sued and are liable for any order against them.
The tenancy premises were badly affected by the 2023 Auckland Anniversary weekend flooding, and having heard from the tenants, unquestionably the premises would have been uninhabitable.
On 7 February 2023 the landlord emailed the tenant stating that: I need you to confirm you are giving 2 days notice to end your tenancy for our records. Once received you can return the keys to our Mt Albert office...
The tenant responded that same day by asking “can I give 2 days notice sometime next week?”
The landlord replied on 8 February initially advising “sure, no problem” but in a later email stating that: The owner needs everything to be removed by Friday. Please let me know once everything is removed.
The tenant responded that same day to advise that “We are try to remove everything by Friday as much as possible...”, but noting it was challenging finding somewhere for their belongings, and asking if they could have until Monday.
On 10 February 2023 the tenant emailed the landlord to advise: I want to inform you, we went to the property in the evening yesterday (Thursday @ around 5pm) to do the rest of the cleaning and we noticed that some of our stuff is missing inside and outside the property. We raised the police complaint for that. There is no damage in the property (not door broken).
And then later that day the tenants wrote to the landlord: I feel very bad, we came to 13A Gifford take the rest of the stuff to remove and it’s everything already outside. We planned to take and return the key to your office today, but it’s make us treat like we kind of slave. And mentioned you in previous email someone came inside yesterday and took some stuff and today took everything outside and the carpet all removed. I think someone worked today before we vacate the house.
The tenants also provided photographs which show the carpets having been removed and in a pile on the grass.
On 20 April 2023 the tenant filed this application with the Tribunal.
A hearing was convened in Auckland in attendance was both tenants, there was no appearance by the landlord.

TENANTS CASE

The tenants state that on during the Auckland Anniversary flooding, their property flooded, with the water going about one meter up the walls.
The tenant states that subsequently the property manager advised they needed to give two days notice, and initially the landlord advised that was fine, but then subsequently the landlord advised they needed to vacate the premises on Friday.
However on the Thursday they went to the property and found that some items were already missing. The following day the tenants returned to the premises to find that the inside of the house had been stripped out and all of their belongings had been removed.

LANDLORDS CASE

I do not know the position the landlord takes in this matter.

ANALYSIS

The Tribunal must determine whether compensation and exemplary damages can be ordered in relation to the landlord disposing of tenant goods in the premises.
The starting point must be to recognise that the RTA is clear, that a landlord cannot simply take terminate and possession of the tenancy premises. To lawfully do so, the landlord must follow the requirements in the Act (see section 50).
Section 59 of the Act sets out how a tenancy can end when there is destruction of premises, which would be the case here. However that provision confirms that in order to terminate the tenancy the landlord must give the tenant a minimum of 7 days’ notice, or the tenant can give a minimum of 2 days. In either case the tenants rent must stop.
In this case I cannot see that either the landlord or tenants have given notice. Certainly I cannot see any evidence of the landlord giving 7 day’s notice to the tenant, and I also cannot see that the tenants had given notice when the landlord entered the premises and removed carpets and other tenant belongings.
However, even if the landlord or tenant had given notice (which I find they had not), the landlord still could not enter the premises at the end of the notice if the tenants were still in possession of the premises, the landlord would need to come to the Tenancy Tribunal for a possession order, allowing a Bailiff to retake possession of the premises – but that did not occur. Exemplary damages claim
I have no reservation in concluding that the landlord unlawfully entered the premises, and unlawfully took possession of it. In the course of that, I accept the evidence from the tenants that the landlord unlawfully disposed of the tenants goods, which of course the landlord cannot do.
Section 33 of the RTA applies, and holds: 33 Tenant’s goods not to be seized (1) The landlord shall not be entitled to seize or dispose of any of the tenant’s goods— (a) ... (b) for any other reason arising from the tenancy. (2) Seizing or disposing of any goods in contravention of subsection (1) is hereby declared to be an unlawful act.
I find that the landlord has seized and disposed of tenant goods, which is an unlawful act for which exemplary damages could be ordered.
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.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
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.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for a breach of section 33 is $3,000.00.
In this case I find that exemplary damages should be ordered. I consider it most likely that the actions of the landlord were intentional. The landlord is a property management company which most likely is aware of its obligations under the RTA as it relates to terminating tenancies, entry to premises and tenant goods. The effect for the tenants has been significant. They have had an intrusion into their home notwithstanding the damage from the flooding. They have lost goods. There is a very strong interest for tenants, landlords and the public generally that landlord do not unlawfully seize or dispose of tenant goods. It would be just to make this order.
In the circumstances I consider that an order of 50% of the maximum would be indicated. In setting that amount, I am minded that the landlord is a property management company, and further the significant impact that has occurred for the tenants.

COMPENSATION

With any claim for compensation, to receive an order the party must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred.
In this case the tenants seek compensation for replacement goods as follows: a. Bed, $1,100.00 b. Steele Cart, $558.00 c. Fans, $127.00 d. Shovels, $44.00 e. Plant boxes, $600.00 f. Hose, $100.00 g. Toolbox, $150.00 h. Cycle pump, $55.00 i. Knife, $80.00 j. Fishing rods and reels, $320.00 k. Racquet, $150.00 l. Skate board, $47.00
The tenants noted that their loss was actually much greater, because they had wide ranging smaller value items in the house that they have lost, but not claimed. I accept that is the case. But I have no reason to believe that the tenants have not lost the items set out above, so I make the compensation order as claimed in full.

FILING FEE

Because the applicant has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal can order name suppression to a party, and name suppression would be reasonable in this case.

Tenancy Tribunal case 4553929 — Exemplary damages

At a glance

Tenancy Tribunal case 4553929 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

ANALYSIS

COMPENSATION

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

ANALYSIS

COMPENSATION

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions