What was the outcome of Tenancy Tribunal case 4563890?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4563890?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4563890?

The primary dispute was Leaks. Related themes: State of repair, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4563890?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10040162-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4563890?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4563890?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4563890?

The primary dispute was Leaks. Related themes: State of repair, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4563890?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10040162-Tribunal_Order.pdf.

35 Shakespeare Street, Greymouth, Greymouth 7805 Tenancy Tribunal Case 4563890 — Leaks

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Reasons

Background

The late Roger Riley rented the premises at 35 Shakespeare Street Greymouth from his brother Gavin who resided next door.

Before he died, Roger Riley made this Tribunal application against his brother. By then, he was no longer residing at the premises due to ill health. He lived with his son Jamie and his partner.

The application is dated 3 May 2023. Mr Riley died on 24 July 2023.

The executor of the estate is Averill Davey. She was unable to attend the second Tribunal hearing. I allowed Jamie Riley to represent the estate instead. He and his two sisters are the beneficiaries of the estate. The value of the estate is limited. Probate of the will was not required.

The application is unusual in that it was made by the executor of the estate but is dated before Mr Riley died. Perhaps there was some confusion as to dates.

The application seeks compensation of $75,000.00 but is otherwise vague as to detail. Also sought was compensation for missing tools and compensation for alleged breaches of Roger Riley’s quiet enjoyment.

I began hearing the application on 2 October 2023. I clarified that the application concerned an alleged failure by the landlord to provide and/or maintain the premises in a reasonable state of repair. I noted that the Healthy Homes Standards (HHS) did not apply to the tenancy as it started in 2004. The landlord had until 2025 to ensure compliance.

I made orders by consent. The parties agreed to attend mediation. And they agreed the Jamie Riley could uplift any remaining goods belonging to his late father from the premises.

I made directions for the filing of submissions (compensation and/or exemplary damages) if the dispute was not resolved at mediation.

No agreements were reached at mediation. I held a hearing on 22 January 2024.

I heard evidence from Jamie Riley for the estate, his mother Lauree Coleman, and Laura Ager his partner, and from the landlord Gavin Riley. I also heard submissions from each party.

I adjourned the hearing to allow Jamie Riley to produce video evidence (which I have viewed) and for the parties to make final written submissions. Issues

The issues for the Tribunal to determine are these: •Can the Tribunal make any order regarding the missing tools? •Has the estate proved claims for compensation and/or exemplary damages? If so, should the Tribunal award compensation and/or exemplary damages? Legal considerations – compensation and exemplary damages

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must take into account the following factors when deciding whether to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.

Exemplary damages are different. They 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 of the Residential Tenancies Act 1986 (RTA).

In Birch (referred to above) the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.

Can the Tribunal make any order regarding the missing tools?

I explained to the parties that the Tribunal cannot make any order concerning missing tools. The tools were not provided as part of the tenancy. Jamie Riley said he and his father believed that Gavin Riley had stolen the tools since he had a key to the shed where they were located.

This is a criminal issue, an alleged theft. It is a police matter and not a matter the Tribunal has jurisdiction to determine.

I dismiss this part of the claim. Has the estate proved claims for compensation and/or exemplary damages? If so, should the Tribunal award compensation and/or exemplary damages?

The Tribunal heard evidence from Mr Jamie Riley and the witnesses concerning the state of the premises.

The general tenor of the evidence was that the house was originally ‘up to standard’ but by 2021, according to Ms Ager, it ‘looked like a dump’. She said when she and Jamie Riley picked up his father from hospital, the ambulance officer would not let him go back to the premises, so they took him to their place.

The video evidence seemed to concentrate on the log burner and whether it was operational or not and unsafe. It did not add anything of significance to the evidence about the state of the premises generally.

Jamie Riley and Ms Ager gave evidence that Roger Riley told them his brother would look through the windows, made him feel uncomfortable, and took his possessions when he was asleep.

Mr Gavin Riley said he was unaware of the general state of the premises. Once he was alerted to leaking in the hallway by a contractor he engaged, he arranged an inspection which revealed long term damage his insurer would not cover.

Mr Riley said the tenancy was a ‘sham tenancy’. He said his brother had been living with their parents, but their mother wanted him to move out. She suggested that Roger move to Gavin’s spare house, but she made it clear he was to leave Roger alone and not do any inspections.

Mr Riley said for years the rent was a peppercorn rent. No bond was paid. He said the application his brother made was a surprise to him.

Mr Riley denied ever disturbing his brother nor did he ever do anything untoward. He said he mowed the lawns only because Roger would not, and the Council complained to him.

Mr Riley denied ever receiving any correspondence from his brother about the state of the premises.

The Tenancy Tribunal is one of only a few jurisdictions that can award exemplary damages. That it can do does not mean that it always should.

This is a tenancy that must be seen in its context – a family arrangement of many years’ duration.

This application was only made after Roger Riley went to live with his son after he was discharged from hospital. It seems he lived with his son and his partner for the last few months of his life.

The tenancy started in 2004. It lasted about 19 years. During that long period, Mr Roger Riley took no steps to proceed against his brother as his landlord.

The Tribunal formed the view that it was Jamie Riley who drove this application. He was dissatisfied at the state of the premises where his father lived all those years.

Had this been a ‘usual’ landlord/tenant relationship, there might have been grounds for the Tribunal to provide some relief. But it was not. It was a family arrangement brokered by the mother of the two brothers. In that sense it was an incidental tenancy.

Had the late Mr Riley been so concerned about the state of the premises, the Tribunal would have expected him to make an application much earlier during the 19-year tenancy. He only did so after he had moved to stay with his son.

Without his direct evidence, the Tribunal prefers the evidence as to how the tenancy came about given by Mr Gavin Riley. And it prefers his evidence about what happened over the years.

The suggestion that Gavin Riley entered the premises while his brother was asleep leaving muddy footprints in the kitchen, and repeatedly looked through Roger’s windows was not credible and was denied.

This seems to be a case that is estate driven. The estate has limited assets as no probate is required. It would be a perverse outcome for the estate (the beneficiaries being Jamie Riley and his sisters) to receive a financial windfall (bearing in mind the claim is for $75,000.00) based on the experiences of their father as a tenant over 19 years, when no claim was ever advanced until after Roger Riley went to live with his son, relatively soon before his death. Result

The broader context here is such that the Tribunal does not consider it appropriate to award compensation and/or exemplary damages to the estate of Roger Riley, even if there were breaches by the landlord (the deceased’s brother) of his responsibilities under the RTA.

For these reasons I dismiss the application.

Upon my enquiry, neither party sought a name suppression order.