What was Tenancy Tribunal case 4562321 about?

The tribunal order states: The Tribunal declares that the tenancy of [The tenant/s] at Unit/Flat 2, 231

How much money was awarded in case 4562321?

Compensation: Failure To Maintain: $900.00 awarded to tenant; Property Damage: $1,550.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $2,185.71 awarded to landlord

What type of tenancy dispute was case 4562321?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4562321?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9595631-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4562321 about?

The tribunal order states: The Tribunal declares that the tenancy of [The tenant/s] at Unit/Flat 2, 231

How much money was awarded in case 4562321?

Compensation: Failure To Maintain: $900.00 awarded to tenant; Property Damage: $1,550.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $2,185.71 awarded to landlord

What type of tenancy dispute was case 4562321?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4562321?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9595631-Tribunal_Order_Redacted.pdf.

Unit/Flat 2, 231 Hibiscus Coast Highway, Red Beach, Red Tenancy Tribunal Case 4562321 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4562321 — net $284.73 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 25 March 2023 (less bond retained by LL	$2,185.71		Rent arrears to 25 March 2023 (less bond retained by LL
Compensation: failure to maintain		$900.00	failure to maintain
Exemplary damages		$1,550.00	Exemplary damages
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$2,185.71	$2,470.44
Net award		$284.73
Total payable by Landlord to Tenant		$284.73

Claims and awards in Tenancy Tribunal application 4562321 — net $284.73 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 25 March 2023 (less bond retained by LL	$2,185.71		Rent arrears to 25 March 2023 (less bond retained by LL
Compensation: failure to maintain		$900.00	failure to maintain
Exemplary damages		$1,550.00	Exemplary damages
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$2,185.71	$2,470.44
Net award		$284.73
Total payable by Landlord to Tenant		$284.73

Order

The Tribunal declares that the tenancy of [The tenant/s] at Unit/Flat 2, 231 Hibiscus Coast Highway, Red Beach, Red Beach 0932 ended on 25 March 2023.
[The landlord/s] must pay [The tenant/s] $284.73 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. The tenant was represented by Counsel, [The tenant’s representative], and the landlord was represented by [The landlord’s representative] who had acted as the property manager since early 2023. The owner was also able to be contacted part-way through the hearing via telephone. DescriptionLandlordTenant Rent arrears to 25 March 2023 (less bond retained by LL)$2,185.71 Compensation: failure to maintain$900.00 Exemplary damages $1,550.00 Filing fee reimbursement $20.44 Total award$2,185.71$2,470.44 Net award $284.73 Total payable by Landlord to Tenant $284.73
The tenant seeks a declaration regarding the termination date of the tenancy, and refund of his bond.
He also seeks exemplary damages or compensation against the landlord for the following alleged breaches of obligations under the Residential Tenancies Act 1986 (“the Act”). a. Failure to provide receipt and lodge bond b. Failure to include healthy homes, insulation and insurance information in the Tenancy Agreement c. Failure to provide healthy homes and insurance information on request d. Failure to provide and maintain the premises in a reasonable state of repair. e. Failure to comply with Healthy Homes Standards (“HHS”)
The landlord has filed a cross-application and seeks payment of rent arrears and outstanding water bills and compensation for cleaning and microwave damage.
The landlord also seeks exemplary damages against the tenant for using the premise for an unlawful purpose. The “unlawful purpose” claimed is that the tenant was running a side business tutoring from home.
During the hearing the landlord accepted that the water bills were not exclusively attributable to the tenant’s usage and therefore elected not to proceed with that part of the claim. I record that as withdrawn. Approach in the Tribunal
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.
Both parties provided written statements, copies of emails and messages and other documents, and there was also an oral hearing. 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. Summary of Tenant Evidence
On 11 December 2022 the parties entered into a tenancy agreement which was recorded on a standard Tenancy Services “Residential Tenancy Agreement” form.
The tenant says he was not provided with any information regarding insurance, insulation, or HHS in that agreement. I have sighted a copy of that agreement.
The tenant paid $1000 bond on that day, for which he says he did not receive a receipt.
On 15 December 2022 the tenant paid a further $800 which comprised $350 for the balance of the bond and $450 for the first week’s rent. He says he did not receive a receipt for this.
The tenancy commenced on 19 December 2022.
The day after he moved in, the tenant telephoned the owner to advise that he was unhappy about the state of the premises. He said that there was a lengthy telephone conversation where he raised concerns about several issues. This included old, rusted rails in wardrobes not being replaced as promised, extractor fan in bathroom not working, white debris falling from the ceiling into the shower.
The tenant said that during this phone call the owner was somewhat combative and said words to the effect of “I don’t want to deal with all this drama”. She told the tenant to write a 90-day notice and he could leave. During this conversation he said the owner also mentioned about bringing in a property manager.
The tenant duly wrote giving 90 days’ notice as he says was agreed. I have sighted this email, dated 24 December 2022. The notice states that the last day of the tenancy would be 25 March 2023.
During the Christmas/New Year period, the tenant says he identified further problems including most significantly water that was leaking through the lounge window into the lounge. He said that the window ledge had significant water on it, the carpet and some of his furniture was wet. He said he was concerned about power sockets in the room given the amount of water. The tenant estimated about 1-2 square metres in the room was soaking wet.
On 6 January 2023, the tenant contacted the landlord again, raising two issues formally: a. A 14-day notice to remedy the leak b. A request for HHS and insurance information
On 9 January 2023, as he had not had a response from the landlord, he emailed to follow up on the 90-day notice.
The following day, 10 January 2023, the tenant heard from [The landlord’s representative] as the property manager who advised him to deal directly with him. The tenant met with [The landlord’s representative] who advised him that if he paid a fee of $632.50, he could leave the tenancy earlier; [The landlord’s representative] also advised that the repair issues raised would be remedied.
During the hearing the tenant said that the tenor of this conversation was that if he paid the fee, [The landlord’s representative] guaranteed he could go in a couple of weeks as opposed to the end of March.
Given this assurance, the tenant paid the fee on 11 January 2023 but heard nothing further about repairs or a leaving date.
In the meantime, the tenant said that each time it rained, the window would continue to leak.
The tenant accepts that due to his ongoing frustration he stopped paying rent after 20 January 2023.
On 26 January the 14-day notices expired and so the tenant contacted the landlord again. At this point he says he also discovered that the bond had not been lodged with the Bond Centre.
On 27 January 2023 the Auckland region experienced a significant rainfall event that caused flooding in many areas. The tenant says that the unrepaired window leaked again and consequently flooded the lounge area. He took a video and emailed the property manager and owner about what was happening. At that point he asked to leave the tenancy earlier than the 90 day’ notice period.
The owner responded that same day, advising the tenant to put down some towels to deal with the leaking and that a builder would come in due course. The owner also said that the property manager was at that point looking for a new tenant and as soon as that was sorted the tenant would be able to leave the property.
On 9 February 2023, with no further action having occurred, the tenant applied to the Tribunal.
On 6 March 2023, the owner’s husband came to the property and attached some sort of fitting to the window which was still leaking.
On 10 March 2023 the tenant emailed the landlord again trying to seek resolution of all matters. The property manager telephoned to say the landlord would accept resolution on the condition that the tenant withdrew the application in the Tenancy Tribunal. The tenant agreed to that and emailed to withdraw his application. 1
The “window fitting” that had been attached by the owner’s husband on 6 March 2023 fell off and the tenant emailed the owner to let her know on 16 March 2023.
On 22 March 2023 the tenant emailed the landlord again confirming he would vacate on 25 March 2023 (the end of the 90-day notice period) and invited a final inspection. The following day the landlord emailed back saying she did not accept the tenant leaving the premises on that date and telling him that he was liable for rent for the full term of the tenancy.
The tenant moved out on 25 March 2023 and as the landlord had not attended for an inspection or to obtain the keys, the tenant returned the keys by signature-required courier.
I have sighted emails and other documents that largely corroborate this narrative of events.
The tenant says that the leak was never adequately repaired. He says the rusting rails in the wardrobe (which had been promised to be replaced before he moved in) did get replaced after he raised the issue again. He says the extractor fan never worked, he showed this to the property manager and was assured it would be repaired, but it never was. He said that the white powdery substance in the shower seemed to be debris from an access hatch in the ceiling. He says that he wiped it away constantly, but it continued to fall down and that this happened for the entire duration of the tenancy. 1 The correspondence inadvertently went to the incorrect email address; therefore, the application remained on foot in the Tribunal.
In relation to HHS, the tenant said that because he never received the information as requested, he was unsure about compliance but was doubtful about this.
In relation to the landlord’s claim about running a side business from home, the tenant said that he did occasionally teach students to play guitar and there was nothing in the tenancy agreement to suggest he was not able to work from home from time to time. He denied this was unlawful in any way. Summary of Landlord Evidence
The landlord’s evidence was provided both by [The landlord’s representative] and by [The landlord/s] who was able to be contacted via telephone during the hearing. She is currently overseas.
The landlord acknowledges that the bond was not lodged with the Bond Centre but says that the reason the bond was not lodged was because the tenant did not sign the bond lodgement form.
The landlord says that there were leaks but described them as “not major leaks”. The landlord insisted that a builder went out to fix the leak and that it was properly repaired. However, the landlord accepted that they did not check to see whether the leak was properly repaired.
The landlord provided a letter from an [Project Manager] who is described as a project manager for [Construction Company]. The letter is not dated but describes previous renovations conducted on the property. He says that he attended the property sometime in February (after the Auckland flooding) and said that he was able to fix a window flashing from outside the property.
There is no evidence that [Project Manager] spoke with the tenant or was shown the particular issue the tenant had raised, nor been inside the tenanted premises to check the situation.
The landlord says that while the extractor fan was slow it was not completely non-working.
The landlord described the debris falling from the ceiling as “not a major thing” and says that this was easily dealt with by wiping it down. Further, the owner said that when they checked the issue during an inspection, they did not see anything.
In relation to ending the tenancy early, [The landlord’s representative] said that he was trying to assist the tenant by helping to advertise the premises. He characterised his actions as working for and helping the tenant. He denied that he was acting as the landlord’s agent and says he was there to assist the tenant with moving out early. He says the tenor of the phone call on 10 January 2023 was all about helping the tenant in this situation.
He said that the $632.50 charged was the cost for a “premium listing” on Trade Me. He denied giving the tenant any indication about the timing to find a new tenant.
However, [The landlord’s representative] did not provide any evidence of having actually listed the premises on Trade Me.
[The landlord’s representative] said that the owner asked him approximately two weeks prior to the hearing to help with finding new tenants. He acknowledged that nothing much had been done in the meantime since the tenant left.
During the hearing the owner said that she had advertised on Facebook Marketplace but had not done much else. She said that she was overseas and very busy and did not have time to be dealing with getting a new tenant.
She said that since the tenant had agreed to a fixed term, he was therefore liable for rent to the end of the fixed term, and she did not see why it was up to her to do much more.
The landlord provided an HHS assessment report from [Energy Company] dated 12 July 2023. This is several months after the tenant had moved out of the premises. However, the report concludes the premises are HHS compliant.
In relation to the water bill, as noted above the landlord accepted that water was shared by the upstairs and downstairs tenants and this claim was withdrawn.
In relation to the claim for rent arrears, the landlord provided a rent summary. It showed that the last rent payment made by the tenant was 20 January 2023. [The landlord’s representative] said that while he understood there were some maintenance issues to be dealt with, the tenant should not have stopped paying rent.
The tenant acknowledged the last payment was 20 January 2023.
In relation to the claim for cleaning and damage to a microwave, the landlord said that there was a microwave in the premises which was damaged after the tenant moved out. He also said that he had been advised by the owner that the premises were not left reasonably clean and tidy.
However, there was no independent evidence to support these claims.
Finally, the landlord said that the tenant was running a side business teaching students from his home. The landlord’s position was that this was not permissible unless it was discussed and agreed by the owner; hence it was unlawful. Tenant Claims

When Did the Tenancy End?

This tenancy was intended to be for a fixed term. A fixed term can only be ended early by mutual agreement or by order of the Tribunal.
In this case, I am satisfied on balance that the landlord agreed to the fixed term ending early. I accept the tenant’s evidence that the landlord advised him via telephone that he could give a 90-day notice to end the tenancy. This is corroborated by the written notice given 24 December 2022 and the follow up email of 9 January 2023. These emails would not have been sent by the tenant had there not been a verbal agreement to that effect.
There were also several emails from the owner which confirmed that there was an intention that the tenancy come to an end.
Similarly, the involvement of [The landlord’s representative] and the payment of an advertising fee to end the tenancy early further serves to corroborate the tenant’s evidence in this regard.
I therefore find that the tenancy ended on 25 March 2023.
It is common when parties agree to end a fixed term early for a tenant to remain liable for rent until new tenants have been secured. Having said that, it is a fundamental principle of contract law that the party who suffers a loss has a duty to mitigate that loss. In this case, a landlord cannot simply sit back and do nothing and expect the tenant to continue to pay rent until the end of the fixed term.
Here, the tenant gave notice on 24 December 2022. A further payment was made on 11 January 2023 of $632.50 for a “premium listing” on Trade Me. It appears no such listing was purchased.
Given that the landlord took almost no steps to mitigate any potential loss of rent, I find that the tenant is not liable for rent beyond 25 March 2023 when he vacated the premises. Bond
Section 19 of the Act outlines the obligations of a landlord on receipt of a bond. A landlord is required to lodge a bond with the Bond Centre within 23 working days of its receipt and is required to provide a receipt in writing.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A of the Act.
In this case, I consider that a receipt was provided for the initial part of the bond. That is because the receipt is a standard part of the written tenancy agreement that has been signed by the parties, and in this case, it has been signed by both parties.
However, no receipt was given for the second part of the bond payment, nor was the bond lodged with the Bond Centre.
In failing to provide a receipt for the second part of the bond and failing to lodge the bond, the landlord has committed an unlawful act.
I will not order exemplary damages for the failure to provide a receipt, because I am prepared to accept this was an oversight. However, failure to lodge the bond is a different matter.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
Failure to lodge a bond is a very serious issue. The bond system is there for a reason. A bond is prima facie a tenant’s money and is not to be used by a landlord for general cash flow purposes. The bond system ensures that a landlord cannot act as their own judge and jury regarding potential claims on the bond.
It is no answer for a landlord to say that the tenant did not sign the bond lodgement form. If the tenant does not sign that may well delay processing of the bond but it does not prevent the bond being lodged.
Based on the evidence received, I am persuaded that the failure to lodge the bond was intentional because: •The parties signed a standard tenancy agreement on the form provided by Tenancy Services. •In this standard tenancy agreement, it is made clear in multiple places that bond money must be lodged with the Bond Centre within 23 days •Landlords are required to operate their business within the law •Landlords are running a business and must have in place the necessary systems to ensure that basic landlord responsibilities such as filing bond money are met. •Like all citizens, this landlord is deemed to know the law and on that basis a failure to lodge the bond is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for their unlawful acts by claiming ignorance of the law
Applying the other criteria in s109(3) most notably the public interest, I observe that this act undermines the integrity of the bond system. The entire purpose of the bond system is to ensure that landlords are not able to retain a tenant’s money for their own purposes, and that bonds are kept safe at the bond centre so that repayment of the bond is not at the whim of the landlord.
However, I also take into account that there is no evidence that this landlord has committed a similar breach before and so I am prepared to make the order at the lower end of the scale.
I therefore order exemplary damages of $500.00 for this breach. Failure to Include Information on Tenancy Agreement
Section 13(1A) of the Act requires that a landlord must include a signed statement in the tenancy agreement that provides relevant information about insulation in the property.
Section 13(1CA) requires that a landlord must include in the tenancy agreement a signed statement that the premises does or will comply with the HHS and include the relevant HHS information for each standard.
Section 13(2) of the Act requires that a landlord must include information in the tenancy agreement about insurance of the premises, setting out whether or not the premises are insured and advising that (if insured) a copy of the policy is available on request.
Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A of the Act.
In this case, the landlord accepted that this information had not been included in the tenancy agreement.
No real reason was given as to why this information was not included.
I find that the landlord has committed an unlawful act.
As noted above, 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.
I find that these unlawful acts were committed intentionally. I make this finding based on several factors, one of which is that tenancy agreement signed by the parties was a standard “Residential Tenancy Agreement” found on the Tenancy Services website. That standard agreement runs to 25 pages and clearly provides direction and space for all the required information.
In this case, the landlord appears to have simply discarded the pages with this relevant information and has instead provided an agreement which includes only pages 5, 6, 10 and 11 of the standard agreement. That was clearly deliberate.
Landlords are expected to follow the law and there is no reason why the landlord in this case did not do so.
I find it would be just to make an order.
The maximum for each of these breaches is $750.00. In this case, I order exemplary damages of $200.00 per breach. The total order under this heading is therefore $600.00. Failure to Provide Information on Request
A tenant can request a landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See ss45(2B) and (2C) of the Act.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A of the Act.
Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
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. See section 45(1AD) and Schedule 1A of the Act.
In this case, the tenant made the requests in writing to the landlord. The landlord failed to comply with the requests within a reasonable time (or, for the HHS, within 21 days).
I accept that at the hearing the landlord provided a copy of the insurance policy and the HHS assessment report. However, that does not alter the fact that these were not provided to the tenant when they ought to have been.
I find the landlord has committed an unlawful act.
As noted above, 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.
Intentional means that the party who has committed the breach must be aware of it. The focus of the intention however must be the act (or omission) and not the legal knowledge of the offending party. The District Court has confirmed that: Like all citizens... [the landlord is]... deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law. 2
I therefore find that these unlawful acts were intentional.
Applying the other criteria in s109(3) most notably the public interest, I find that it would be just to make an order.
I therefore order exemplary damages of $200.00 for failing to provide HHS information and $250.00 for failing to provide insurance information. The total order under this hearing is therefore $450.00. Failure to Maintain/Healthy Homes Standards
Under section 45(1)(b) of the Act, a landlord must provide and maintain the premises in a reasonable state of repair.
Under section 45(1)(bb) of the Act, a landlord must comply with the healthy homes standards.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the Act.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021 and before 27 August 2022 b. All private rentals must comply within 120 days of any new or renewed tenancy after 28 August 2022, with all private rentals complying by 1 July 2025. c. All boarding houses must comply by 1 July 2021. 2 TMT NZ Ltd TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, at para 37 d. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
In this case, the tenancy commenced on 19 December 2022. That means that the HHS compliance date was 18 April 2023.
The tenancy had already ended prior to the compliance date. Accordingly, the landlord has not breached their obligation to comply with HHS and this part of the claim is dismissed.
Turning now to the failure to maintain, I accept the tenant’s evidence regarding the extractor fan that was not working, and the leaking issue not being remedied.
The tenant provided video evidence which corroborated his claim that the extractor was not working.
In relation to the leaking, there was contemporaneous evidence in terms of emails and the like.
I also sighted a video showing the water ingress in January 2023. The tenant issued a 14-day notice on 6 January 2023. This was well before the major weather event on 27 January and indicates the problem was a repair issue, not simply related to widespread flooding.
The landlord minimised the leak as “not major” and tended to portray the tenant as being overly complaining.
I am not satisfied that these issues were repaired within a reasonable time frame and accordingly the landlord is in breach of their obligation to maintain the premises.
However, in this case I do not consider it would be just to award exemplary damages for this breach. Rather, I find that the tenant is entitled to some compensation.
In this case the primary loss I must focus on in deciding the amount to compensate the tenant is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenant has essentially been paying for something he did not receive.
In this case, I consider that compensation in the amount of $900.00 is appropriate and reflects the loss of amenity suffered by the tenant. That is equivalent to two weeks’ rent. Landlord Claims Rent Arrears
The landlord has provided a rent summary. Unfortunately, this summary was not accurate as it has not recorded the first rent payment made by the tenant on 15 December 2023, nor was there a record of the bond payment which had been retained by the landlord.
Given that the tenancy ended on 25 March 2023, I find that the tenant is liable for rent arrears in the amount of $2,185.71. That takes into account the $450 not recorded as well as $1350 in bond payment retained by the landlord.
The amount ordered is proved. Compensation – Cleaning and Microwave
The claims for cleaning and for damage to the microwave were vague and there was no corroborating evidence for either claim.
Such evidence might include pre-tenancy inspection photographs and exit tenancy photographs, evidence related to alleged damage and invoices for repairs or cleaning.
None of this was provided.
There is insufficient evidence to establish these claims and accordingly they are dismissed. Unlawful Purpose
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) of the Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A of the Act.
An “unlawful purpose” in this context is directed towards something that contravenes the law, for example a criminal act. It does not mean something which might be in breach of a tenancy agreement.
In any event there is nothing in the tenancy agreement or the Act that would prevent the tenant from working from home, provided the principal use is as a place of residence.
The landlord has not established that the tenant has done anything unlawful and consequently this claim is dismissed. Suppression and Filing Fee
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
In this case, the tenant has substantially succeeded in the proceedings. The landlord has also had some partial success and also seeks name suppression.
As there are no countervailing reasons not to do so, I therefore grant suppression of both parties’ names and identifying details.
As the tenant has had substantial success in the proceedings, I also reimburse the filing fee. J R Smith 31 October 2023

Tenancy Tribunal case 4562321 — Exemplary damages at Unit/Flat 2, 231 Hibiscus Coast Highway, Red Beach, Red

At a glance

Tenancy Tribunal case 4562321 — Exemplary damages at Unit/Flat 2, 231 Hibiscus Coast Highway, Red Beach, Red

At a glance

Award balance

Claims & awards

Order

Reasons

When Did the Tenancy End?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

When Did the Tenancy End?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions