What was Tenancy Tribunal case 4591691 about?

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

How much money was awarded in case 4591691?

Compensation: Unlawful Entry: $400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4591691?

The dispute type was not classified.

Where can I read the official tribunal order for case 4591691?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9431549-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4591691 about?

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

How much money was awarded in case 4591691?

Compensation: Unlawful Entry: $400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4591691?

The dispute type was not classified.

Where can I read the official tribunal order for case 4591691?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9431549-Tribunal_Order_Redacted.pdf.

13 Clarkson Crescent, Maunu, Whangarei 0110 Tenancy Tribunal Case 4591691 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4591691 — net $420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful entry	$400.00	Unlawful entry
Filing fee reimbursement	$20.44	lly successful in this application, and I will also award him the filing fee of $20.44 5 .
Net award	$420.44
Total payable by Landlord to Tenant	$420.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
must pay immediately, calculated per the table below.

Reasons

Background

The tenant’s application seeks damages for unlawful entry and for the landlord requiring a security other than the bond.
The landlord’s application seeks damages for sub-letting.
The hearing took place in [Event location suppressed] on 6 September 2023. Both parties attended the hearing. Ms Bennett represented the landlord. Unlawful entry
On 18 May 2023 Ms Bennett gave [The tenant/s] notice of an inspection to take place on 31 May.
On 26 May, Ms Bennett arrived at the property to carry out an inspection.
Ms Bennett entered the house and inspected the downstairs area. She then went to the upstairs part of the house and was met by [The tenant/s] flatmate. Ms Bennett completed the inspection, except for the bedroom that the flatmate was occupying, and the back bathroom.
Ms Bennett had made a mistake with her dates. She acknowledged that she had no legal right to enter the premises on 26 May.
It is an unlawful act for a landlord to enter the premises other than in the circumstances and in the manner set out in section 48 of the Residential Tenancies Act 1986 (“RTA”).
The Tenancy Tribunal may award exemplary damages of up to $1,500.00 if it is satisfied that the landlord intentionally entered the premises unlawfully.
[The tenant/s] referred to the decision of the District Court in Birch v Otautahi Community Housing Trust 1 .
In Birch, the landlord allowed contractors to enter the premises on the mistaken understanding that notice had been given to tenant. The tenant made an application to the Tenancy Tribunal seeking exemplary damages for unlawful entry and breach of quiet enjoyment.
The Tenancy Tribunal held that the unlawful entry was a breach of section 48 RTA, but declined to make an award of exemplary damages on the grounds that the breach was not intentional. The Tribunal made an award of $200.00 compensation for the unlawful entry.
On appeal, the District Court: a. Upheld the Tribunal’s finding that exemplary damages should not be awarded; b. Upheld the Tribunal’s finding that it could (and should) make an award of compensation for the unlawful entry; and c. Increased the award of compensation from $200.00 to $2,000.00.
There is a potentially complex question about whether the requirement for intention is met if the action that constituted the unlawful act was committed 1 [2020] NZDC 17667 intentionally (irrespective of whether, at the time, the person who committed the action knew that it was unlawful) or whether an unlawful intention is required.
Birch, following Chief Executive, ex parte Edmonson v Walls 2 , indicates that an unlawful intention is required. However, this would mean that the Tribunal is unable to award exemplary damages in circumstances where it currently routinely does so, such as for a landlord failing to lodge a bond because they forgot about it, or a landlord failing to comply with the healthy homes requirements because they were not aware of them or had mis-calculated the compliance date.
In any event, the facts of this case closely resemble those in Birch, and it can be satisfactorily dealt with by way of an award of compensation.
[The tenant/s] sent Ms Bennett an email as soon as he became aware of the unlawful entry. In that email [The tenant/s] stated that his flatmate had contacted him “in a distressed state”. [The tenant/s] also commented “I take the sanctity and private possession of my tenanted property very seriously”.
In Birch, Judge Neave held that the Tribunal’s award of $200.00 to Ms Birch was “close to being derisory”. In quashing that award and making an award of $2,000.00, Judge Neave commented that “an individual has an important, fundamental, interest in preserving for themselves, access to their home”.
An interesting aspect of the District Court’s decision in Birch is that, having made a finding that it was not appropriate to make a punitive award of exemplary damages, the Court made an award of compensation that was double the maximum amount of exemplary damages that could be awarded for an unlawful entry at that time 3 .
Judge Neave placed an emphasis on the “profound effect” that the unlawful entry had on Ms Birch, and noted that “Ms Birch might have reacted more adversely than other tenants”.
In this instance the effect on [The tenant/s] was less profound. [The tenant/s] was not at home when the unlawful entry occurred. [The tenant/s] was understandably upset and irritated about the unlawful entry, but he was not traumatised to the extent that he required medical assistance, as Ms Birch was.
I consider that an award of $400.00 is appropriate in the circumstances. Landlord requiring a security other than the bond
A landlord may not require a tenant to provide the landlord with any form of security to secure any payment or performance in connection with the tenancy 4 . 2 North Shore TT548/92, 29 June 1993 3 The maximum of $1,000.00 was increased to $1,500.00 in August 2021
[The tenant/s] claim relates to an email from Ms Bennett dated 25 February 2022, before the start of the tenancy. The email states: In order for me to hold the property for you, please deposit the two weeks rent in advance. I can then take the advertising down and notify applicants that the property has been rented.
Ms Bennett submitted that it is normal practice to require rent in advance and bond to ‘finalise’ a tenancy.
I accept this argument.
Although some of the language that Ms Bennett used in the email has the sound of requiring a payment to ‘secure’ the property, the payment that Ms Bennett requested was rent in advance, and payment of rent in advance and bond is a legitimate part of completing or perfecting an agreement to rent. At that time the parties had not yet signed a written agreement, and Ms Bennett was attempting to protect both [The tenant/s] and her owner by encouraging [The tenant/s] to take steps towards concluding the agreement.
There is no basis for an award of damages under this heading. Sub-letting
Ms Bennett discovered that [The tenant/s] was advertising a bedroom at the property on the [accommodation] website.
Ms Bennett asked [The tenant/s] to remove the listing and cease this activity. [The tenant/s] did so promptly.
The landlord’s application seeks compensation on the grounds that [The tenant/s] sub-let the premises unlawfully.
[The tenant/s] submitted that he was not sub-letting because: a. He did not part with possession of the premises. b. He continued to use the premises as his place of residence. c. Under the terms of the tenancy agreement, he is permitted to have two other flatmates.
The fact that [The tenant/s] is the sole named tenant, and the tenancy agreement limits the maximum number of occupants to three amounts to the landlord granting [The tenant/s] the authority to make his own arrangements in terms of flatmates, provided that there are no more than three persons living in the property at any given time. 4 Section 18A RTA
I accept [The tenant/s] argument that the landlord cannot control who he has as a flatmate, and that flatmates may stay for months and years or they may stay for days and weeks.
However, I do not agree that this gives [The tenant/s] implied consent to make a room available for short stay accommodation. That activity is different from ‘having a flatmate’ in several significant respects, in particular that: a. It potentially voids the landlord’s insurance cover; and b. It is essentially commercial in nature; and c. It often requires permission from the local Council.
Therefore I find that Ms Bennett was entitled to require [The tenant/s] to remove the [accommodation] listing.
I accept that [The tenant/s] genuinely understood that his activity was not sub- letting. Applying the principles discussed above, I will not make an award of exemplary damages.
[The tenant/s] had the listing up for a very brief period and had only one or two guests over that time. The activity did not result in a profit for himself, and it did not cause a loss for the landlord.
Therefore, I will not make an award of compensation. Filing fee, name suppression
[The tenant/s] has been substantially successful in this application, and I will also award him the filing fee of $20.44 5 .
Both parties sought name suppression.
Name suppression is granted to [The tenant/s] on the grounds that he has been substantially successful in the proceedings 6 .
The landlord has not been substantially successful in the proceedings.
The Tribunal has a discretion to grant name suppression to any party “having regard to the interests of the parties and to the public interest” 7 .
In this instance: a. The interests of the landlord would not be significantly harmed by publication of their name. As noted above, the unlawful entry was the result of a genuine error and Ms Bennett has apologised to all persons affected by it. 5 Section 102(4)(a) RTA 6 Section 95A(1) RTA 7 Section 95A(4) RTA b. The application raises issues that are of legitimate public interest.
Therefore, I will not grant name suppression to the landlord.

Claims and awards in Tenancy Tribunal application 4591691 — net $420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful entry	$400.00	Unlawful entry
Filing fee reimbursement	$20.44	lly successful in this application, and I will also award him the filing fee of $20.44 5 .
Net award	$420.44
Total payable by Landlord to Tenant	$420.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
must pay immediately, calculated per the table below.

Reasons

Background

The tenant’s application seeks damages for unlawful entry and for the landlord requiring a security other than the bond.
The landlord’s application seeks damages for sub-letting.
The hearing took place in [Event location suppressed] on 6 September 2023. Both parties attended the hearing. Ms Bennett represented the landlord. Unlawful entry
On 18 May 2023 Ms Bennett gave [The tenant/s] notice of an inspection to take place on 31 May.
On 26 May, Ms Bennett arrived at the property to carry out an inspection.
Ms Bennett entered the house and inspected the downstairs area. She then went to the upstairs part of the house and was met by [The tenant/s] flatmate. Ms Bennett completed the inspection, except for the bedroom that the flatmate was occupying, and the back bathroom.
Ms Bennett had made a mistake with her dates. She acknowledged that she had no legal right to enter the premises on 26 May.
It is an unlawful act for a landlord to enter the premises other than in the circumstances and in the manner set out in section 48 of the Residential Tenancies Act 1986 (“RTA”).
The Tenancy Tribunal may award exemplary damages of up to $1,500.00 if it is satisfied that the landlord intentionally entered the premises unlawfully.
[The tenant/s] referred to the decision of the District Court in Birch v Otautahi Community Housing Trust 1 .
In Birch, the landlord allowed contractors to enter the premises on the mistaken understanding that notice had been given to tenant. The tenant made an application to the Tenancy Tribunal seeking exemplary damages for unlawful entry and breach of quiet enjoyment.
The Tenancy Tribunal held that the unlawful entry was a breach of section 48 RTA, but declined to make an award of exemplary damages on the grounds that the breach was not intentional. The Tribunal made an award of $200.00 compensation for the unlawful entry.
On appeal, the District Court: a. Upheld the Tribunal’s finding that exemplary damages should not be awarded; b. Upheld the Tribunal’s finding that it could (and should) make an award of compensation for the unlawful entry; and c. Increased the award of compensation from $200.00 to $2,000.00.
There is a potentially complex question about whether the requirement for intention is met if the action that constituted the unlawful act was committed 1 [2020] NZDC 17667 intentionally (irrespective of whether, at the time, the person who committed the action knew that it was unlawful) or whether an unlawful intention is required.
Birch, following Chief Executive, ex parte Edmonson v Walls 2 , indicates that an unlawful intention is required. However, this would mean that the Tribunal is unable to award exemplary damages in circumstances where it currently routinely does so, such as for a landlord failing to lodge a bond because they forgot about it, or a landlord failing to comply with the healthy homes requirements because they were not aware of them or had mis-calculated the compliance date.
In any event, the facts of this case closely resemble those in Birch, and it can be satisfactorily dealt with by way of an award of compensation.
[The tenant/s] sent Ms Bennett an email as soon as he became aware of the unlawful entry. In that email [The tenant/s] stated that his flatmate had contacted him “in a distressed state”. [The tenant/s] also commented “I take the sanctity and private possession of my tenanted property very seriously”.
In Birch, Judge Neave held that the Tribunal’s award of $200.00 to Ms Birch was “close to being derisory”. In quashing that award and making an award of $2,000.00, Judge Neave commented that “an individual has an important, fundamental, interest in preserving for themselves, access to their home”.
An interesting aspect of the District Court’s decision in Birch is that, having made a finding that it was not appropriate to make a punitive award of exemplary damages, the Court made an award of compensation that was double the maximum amount of exemplary damages that could be awarded for an unlawful entry at that time 3 .
Judge Neave placed an emphasis on the “profound effect” that the unlawful entry had on Ms Birch, and noted that “Ms Birch might have reacted more adversely than other tenants”.
In this instance the effect on [The tenant/s] was less profound. [The tenant/s] was not at home when the unlawful entry occurred. [The tenant/s] was understandably upset and irritated about the unlawful entry, but he was not traumatised to the extent that he required medical assistance, as Ms Birch was.
I consider that an award of $400.00 is appropriate in the circumstances. Landlord requiring a security other than the bond
A landlord may not require a tenant to provide the landlord with any form of security to secure any payment or performance in connection with the tenancy 4 . 2 North Shore TT548/92, 29 June 1993 3 The maximum of $1,000.00 was increased to $1,500.00 in August 2021
[The tenant/s] claim relates to an email from Ms Bennett dated 25 February 2022, before the start of the tenancy. The email states: In order for me to hold the property for you, please deposit the two weeks rent in advance. I can then take the advertising down and notify applicants that the property has been rented.
Ms Bennett submitted that it is normal practice to require rent in advance and bond to ‘finalise’ a tenancy.
I accept this argument.
Although some of the language that Ms Bennett used in the email has the sound of requiring a payment to ‘secure’ the property, the payment that Ms Bennett requested was rent in advance, and payment of rent in advance and bond is a legitimate part of completing or perfecting an agreement to rent. At that time the parties had not yet signed a written agreement, and Ms Bennett was attempting to protect both [The tenant/s] and her owner by encouraging [The tenant/s] to take steps towards concluding the agreement.
There is no basis for an award of damages under this heading. Sub-letting
Ms Bennett discovered that [The tenant/s] was advertising a bedroom at the property on the [accommodation] website.
Ms Bennett asked [The tenant/s] to remove the listing and cease this activity. [The tenant/s] did so promptly.
The landlord’s application seeks compensation on the grounds that [The tenant/s] sub-let the premises unlawfully.
[The tenant/s] submitted that he was not sub-letting because: a. He did not part with possession of the premises. b. He continued to use the premises as his place of residence. c. Under the terms of the tenancy agreement, he is permitted to have two other flatmates.
The fact that [The tenant/s] is the sole named tenant, and the tenancy agreement limits the maximum number of occupants to three amounts to the landlord granting [The tenant/s] the authority to make his own arrangements in terms of flatmates, provided that there are no more than three persons living in the property at any given time. 4 Section 18A RTA
I accept [The tenant/s] argument that the landlord cannot control who he has as a flatmate, and that flatmates may stay for months and years or they may stay for days and weeks.
However, I do not agree that this gives [The tenant/s] implied consent to make a room available for short stay accommodation. That activity is different from ‘having a flatmate’ in several significant respects, in particular that: a. It potentially voids the landlord’s insurance cover; and b. It is essentially commercial in nature; and c. It often requires permission from the local Council.
Therefore I find that Ms Bennett was entitled to require [The tenant/s] to remove the [accommodation] listing.
I accept that [The tenant/s] genuinely understood that his activity was not sub- letting. Applying the principles discussed above, I will not make an award of exemplary damages.
[The tenant/s] had the listing up for a very brief period and had only one or two guests over that time. The activity did not result in a profit for himself, and it did not cause a loss for the landlord.
Therefore, I will not make an award of compensation. Filing fee, name suppression
[The tenant/s] has been substantially successful in this application, and I will also award him the filing fee of $20.44 5 .
Both parties sought name suppression.
Name suppression is granted to [The tenant/s] on the grounds that he has been substantially successful in the proceedings 6 .
The landlord has not been substantially successful in the proceedings.
The Tribunal has a discretion to grant name suppression to any party “having regard to the interests of the parties and to the public interest” 7 .
In this instance: a. The interests of the landlord would not be significantly harmed by publication of their name. As noted above, the unlawful entry was the result of a genuine error and Ms Bennett has apologised to all persons affected by it. 5 Section 102(4)(a) RTA 6 Section 95A(1) RTA 7 Section 95A(4) RTA b. The application raises issues that are of legitimate public interest.
Therefore, I will not grant name suppression to the landlord.

Tenancy Tribunal case 4591691 — Tenancy dispute at 13 Clarkson Crescent, Maunu, Whangarei 0110

At a glance

Tenancy Tribunal case 4591691 — Tenancy dispute at 13 Clarkson Crescent, Maunu, Whangarei 0110

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions