What was the outcome of Tenancy Tribunal case 4593649?

The tribunal order states: Andy Saputra and Thirza Saputra must pay Sheila Choi $500.00 immediately,

How much money was awarded in case 4593649?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4593649?

The primary dispute was Exemplary damages. Related themes: Unit Titles, Boarding House.

Where can I read the official tribunal order for case 4593649?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10626379-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4593649?

The tribunal order states: Andy Saputra and Thirza Saputra must pay Sheila Choi $500.00 immediately,

How much money was awarded in case 4593649?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4593649?

The primary dispute was Exemplary damages. Related themes: Unit Titles, Boarding House.

Where can I read the official tribunal order for case 4593649?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10626379-Tribunal_Order.pdf.

12A Waverley Avenue, Glenfield, Auckland 0629 Tenancy Tribunal Case 4593649 — Exemplary damages

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

12A Waverley Avenue, Glenfield, Auckland 0629 Tenancy Tribunal Case 4593649 — Exemplary damages | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4593649. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

Andy Saputra and Thirza Saputra must pay Sheila Choi $500.00 immediately, being exemplary damages for unlawful entry to the boarding room.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant against the landlord. There are a number of claims advanced, and I will discuss those in turn below. I also note there has been considerable uncertainty as to whether this is even a tenancy, or what sort of tenancy it would be, and that was the subject of an earlier and relevant Tribunal order.

BACKGROUND

The background in this case is involved, both in terms of what happened at the tenancy premises and in the procedure with this current application before the Tribunal. Background to tenancy
It is noteworthy that there has been a succession of tenancy agreements between the tenant and landlords over the course of the tenancy.
The original tenancy commenced on 30 December 2018. The landlord at that time was Kenang Budi. The parties used a “House-Sharing Agreement” as the tenancy document. There is no dispute that the tenant paid Mr Budi a bond at that time.
A new tenancy agreement was entered into for the tenancy to commence on 30 December 2018, again with Mr Budi.
A new tenancy agreement was entered into for the tenancy to commence on 1 November 2022, there were new landlords, Andy and Thirza Saputra. This again was on a “House – Sharing Agreement”, but the terms of that agreement were different to the original agreement with Mr Budi.
A further new tenancy agreement was offered for the tenancy to commence on 1 June 2023, again with Andy and Thirza Saputra. This again was on a “House – Sharing (Flatmate) Agreement”, but the terms of that agreement were different to the original agreement with Mr Budi. The tenant did not accept or sign this agreement.
On 1 June 2023 the landlord emailed and messaged the tenant via WhatsApp, advising that her tenancy was terminated and that possession was to return to the landlord.
The tenant left the premises on the basis of that notice.
The tenant has filed a subsequent application with the Tribunal. Background in the Tribunal
As indicated above, there has been significant uncertainly as to whether this is a residential tenancy for which the Residential Tenancies Act 1986 (RTA) will apply.
On 3 November 2023 Adjudicator Brennan convened a hearing, the sole purpose of that hearing was to determine whether this was a residential tenancy falling within the RTA, and if so, what sort of tenancy it was. Mr Brennan determined in his decision: a. This was a residential tenancy under the RTA; and b. It was not an excluded tenancy; and c. This was a boarding house tenancy.
Mr Brennan made the following declaration: By way of declaration, Andy Saputra and Thirza Saputra were the landlords and Sheila Choi was a tenant under a residential boarding housing tenancy agreement at 12A Waverley Avenue, Glenfield, Auckland 0629 which ended on, or around 26 June 2023.
Mr Brennan then adjourned the hearing so that the substantive claims could be considered at the following hearing. Mr Brennan also pointed the parties to the part of the RTA which related to boarding house tenancies, that is Part 2A: Both parties have been advised to review and understand Part 2A of the RTA. Claims in the tenant application citing any section for non- boarding residential tenancies should be read as referring to the equivalent section in Part 2A, where applicable.
Mr Brennan’s decision carried a right of appeal or rehearing, but neither party applied for either.
Another hearing was then scheduled, which came before Adjudicator Pollak, who later issued a decision dated 18 March 2024. Unfortunately Ms Pollak was not aware of the earlier order from Mr Brennan, so she again traversed the question of the Tribunal’s jurisdiction, and whether this would be a boarding house or non-boarding house tenancy, reaching a different decision to Mr Brennan, finding that this was not a boarding house. The Adjudicator considered the tenant’s claims making order on those, but importantly did so applying the law as if this were a non-boarding house tenancy.
The landlord applied for a rehearing. Adjudicator Pollak granted the rehearing request, and noted that one of the reasons for that, was that she had issued a decision not being aware of the finding from Mr Brennan.
The hearing has then been scheduled before myself, and a hearing has been convened in the North Shore District Courthouse today on 25 July 2024, both parties were in attendance. As I advised at the start of todays hearing, because this hearing follows a rehearing, I am starting again as if the position were as it was before Adjudicator Pollak – that is the Tribunal has declared this to be a boarding house, so now I must consider the tenants claims as if it were a boarding house.
I note for completeness that the tenant disagrees with Mr Brennan’s findings. That may well be the case, but Mr Brennan’s decision was binding, and all parties including the Tribunal are now bound by it. I cannot reach a different decision on whether this is a boarding house. If the tenant considered Mr Brennan got his finding wrong, she could have appealed that decision to the District Court, and the District Court would have been able to make another decision on whether this was a boarding house. But no appeal was filed, so Mr Brennan’s finding that this is a boarding house stands. 1

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court 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.
The Tribunal must consider a claim for exemplary damages.
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. 1 I note that the District Court in the decision of Wing On So v Body Corporate 349200 [2024] NZDC 9439, confirmed that the there was a right of appeal of interim orders, prior to the substantive claim being decided by the Tribunal.
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.

ANALYSIS

I will now consider the tenant’s claims. Unlawful tenancy termination
The tenant states that on 1 June 2023 the landlord sent an email, advising that the tenancy agreement was being terminated. Prior to that, the landlord had requested in May that she sign a new tenancy agreement, simply because there had been a change of bank account, where a tenancy agreement had been signed only one year period in 2022.
The tenant believes that this termination was designed to get a new tenant in who would pay more.
The landlord states that it was infact the tenant who asked to move out of the tenancy. The tenant emailed the landlord on 22 June advising that she was leaving on 22 June.
The landlord said that the reason they wanted to terminate the tenancy was because they wanted to change the bank account number, and considered it would be tidier to have a new tenancy agreement.
The landlord agreed that the email dated 1 June 2023 was a termination notice, and it was given because the tenant did not confirm if she was intended to sign the new tenancy agreement.
The landlord confirmed that the termination notice was delivered by email and electronic message service. Analysis
Because this is a boarding house tenancy, as indicated by Mr Brennan, the ‘rules’ that exist between the parties are set out in Part 2A of the Residential Tenancies Act 1986 (RTA).
The provisions relating to the termination of a boarding house tenancy are found in section 66U specifically. That provision sets out the restrictions that apply, but what is relevant is that a landlord can give notice to terminate the boarding house tenancy, providing that 28 days notice is given. Here the landlord has given reasons for terminating the tenancy, but they did not need to do so. What is plain in section 66U, is that by providing 28 days notice is given, the termination is effective.
However, as I explained at the hearing today, the landlord has not given correct notice to the tenant of the termination. The notice was given by email and an electronic messenger service. Section 136 sets out the service requirements.
There is no ability to serve documents by an electronic messenger service.
There is limited ability to serve documents by email. Email can only be used to serve a document if it is specified as a service address (s136). In this case the tenancy agreement does not specify an email address for service, so the landlord needed to serve the termination notice in another way that complied with section 136, such as delivering it to the tenant personally.
However, the RTA does not deem failure to correctly serve a termination notice in a boarding house as being an unlawful act, and therefore there may be a technical breach, but I cannot order exemplary damages for it.
I would not order general or compensatory damages for the service breach, because I consider the effect for the tenant from the technical breach would not have caused her a loss. Failure to lodge bond
The tenant states that she paid $750.00 of bond at the start of her tenancy with the original landlord in 2018, that was Mr Budi. The tenant states that this bond was not lodged with the tenancy bond service.
The landlord stated that the original landlord did not transfer the bond to them, it was only given by the original landlord on the last day of the tenancy, and then the bond was given to the tenant.
The tenant agreed that she was given the bond back when the tenancy ended. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, for failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that 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.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond following the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
It seems very likely that there has been a breach of the landlord’s obligation to lodge the bond, but the landlord who has committed that breach would be Kenang Budi. The bond was paid to him in the context of the tenancy that existed at the time in 2018. When the Saputra’s became landlords, they entered into a new tenancy agreement with the tenants, but importantly, the tenant did not pay any bond to the Saputra’s, so there has been no breach on the part of the Saputra’s
I am minded that I have not heard from Mr Budi, but if the tenant is wanting to purse a claim in relation to the bond, it needs to be with Mr Budi who was the landlord when any breach occurred. Failure to issue receipt
The tenant states that when she paid the bond in December 2018, it was a bank transfer and she was not given a receipt for that bond payment.
The tenant states that when the landlords changed, these new landlords should have then given her a receipt for the bond transfer. Analysis
This is not a case of a simple change of landlord, the parties entered into a new tenancy agreement when the Saputra’s became the landlord. But there is no legal obligation that I know of, that required the Saputra’s to provide a receipt to the tenant for a bond lodged with a previous landlord. Unlawful entry
The tenant said there was a problem with the bathroom fan, and she advised the landlord of that problem. The landlord said an electrician would be coming into the house to fix the fan. The tenant asked if another day could be arranged, but in response the landlord said because it was a boarding house they could come in without consent.
The landlord states that the extractor fan was not working, so they arranged an electrician and gave the tenant notice, and the tenant agreed by text message and leaving the door into her room unlocked. The electrician then replaced the fan. The electrician then demanded payment, and the landlord then went into the boarding room to confirm it was working.
Ms Choi confirmed that there were text messages, but those state she was not available and asked for another day. The landlord responded that they can enter as they have a key, so the tenant did not need to be there, and the landlord insisted that they could enter without notice. Analysis
As I will discuss below, a landlord is able to enter the boarding house at any time, but is restricted in entering the boarding room. Section 66R relates to entry to a boarding room, and confirms that a landlord can give entry to enter the boarding room with the consent of the tenant freely given at the time of entry, or after provided at least 24 hours notice.
Based on what I have seen on the file and heard, I am not persuaded that the entirety of the entry from the landlord was lawful in relation to the work on the fan. There is no evidence of the landlord having approval to enter the room to check the work of the electrician, or providing adequate notice to the tenant for that.
I am satisfied that the landlord is likely to have entered the room in breach of their obligations under section 66R, which is deemed to be an unlawful act under section 66T(1)(a).
Taking into account the factors from section 109, I consider exemplary damages should be ordered for this. I consider the entry was intentional, in circumstances where the landlord should have known there was friction from the tenant with entry in the first instance. The effect for the tenant is that her privacy has been breached. There are strong interests for tenants and the public generally, that landlords only enter tenancy premises with the consent of the tenant or with lawful authority. It would be just to make an order in this case.
The maximum level of exemplary damages under scheduled 1A for a breach of section 66T(1)(a), is $1,500.00. I consider an order at one-third of the maximum would be reasonable, and that is ordered. Breach of quiet enjoyment
The tenant said that there were multiple visits to the premises including with their children, without providing notice. Analysis
As I explained to the tenant at the hearing, a landlord does not need to provide notice to enter the boarding house, only the boarding room. Section 66Q of the RTA confirms that: The landlord of a boarding house may enter the boarding house at any time.
Accordingly even if the landlord would go to the premises unannounced, that is not unlawful. Compensation for moving expenses
The tenant said that on the day she was moving out, she needed to make arrangements to live with her boyfriend, but she needed to rent a van to move her belongings, and seeks reimbursement of $110.00 for that.
The landlord disputes liability for this because she left the tenancy prior to the 28 days of the notice. Analysis
I accept that the tenant incurred these expenses, but the problem for the tenant is that I cannot see any breach on the part of the landlord for which compensation could be ordered. The only breach I can see is a technical one, about the email notice. But again I would not make orders in relation to the form of the notice.

FILING FEE

The tenant seeks an order that the landlord pay the filing fee. The filing fee could be reimbursed if the tenant was wholly or substantially successful, but given I find she has not been, I cannot order the filing fee.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case I find the tenant, who has applied for name suppression, has not been wholly or substantially successful, so name suppression is declined.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4593649. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

Andy Saputra and Thirza Saputra must pay Sheila Choi $500.00 immediately, being exemplary damages for unlawful entry to the boarding room.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant against the landlord. There are a number of claims advanced, and I will discuss those in turn below. I also note there has been considerable uncertainty as to whether this is even a tenancy, or what sort of tenancy it would be, and that was the subject of an earlier and relevant Tribunal order.

BACKGROUND

The background in this case is involved, both in terms of what happened at the tenancy premises and in the procedure with this current application before the Tribunal. Background to tenancy
It is noteworthy that there has been a succession of tenancy agreements between the tenant and landlords over the course of the tenancy.
The original tenancy commenced on 30 December 2018. The landlord at that time was Kenang Budi. The parties used a “House-Sharing Agreement” as the tenancy document. There is no dispute that the tenant paid Mr Budi a bond at that time.
A new tenancy agreement was entered into for the tenancy to commence on 30 December 2018, again with Mr Budi.
A new tenancy agreement was entered into for the tenancy to commence on 1 November 2022, there were new landlords, Andy and Thirza Saputra. This again was on a “House – Sharing Agreement”, but the terms of that agreement were different to the original agreement with Mr Budi.
A further new tenancy agreement was offered for the tenancy to commence on 1 June 2023, again with Andy and Thirza Saputra. This again was on a “House – Sharing (Flatmate) Agreement”, but the terms of that agreement were different to the original agreement with Mr Budi. The tenant did not accept or sign this agreement.
On 1 June 2023 the landlord emailed and messaged the tenant via WhatsApp, advising that her tenancy was terminated and that possession was to return to the landlord.
The tenant left the premises on the basis of that notice.
The tenant has filed a subsequent application with the Tribunal. Background in the Tribunal
As indicated above, there has been significant uncertainly as to whether this is a residential tenancy for which the Residential Tenancies Act 1986 (RTA) will apply.
On 3 November 2023 Adjudicator Brennan convened a hearing, the sole purpose of that hearing was to determine whether this was a residential tenancy falling within the RTA, and if so, what sort of tenancy it was. Mr Brennan determined in his decision: a. This was a residential tenancy under the RTA; and b. It was not an excluded tenancy; and c. This was a boarding house tenancy.
Mr Brennan made the following declaration: By way of declaration, Andy Saputra and Thirza Saputra were the landlords and Sheila Choi was a tenant under a residential boarding housing tenancy agreement at 12A Waverley Avenue, Glenfield, Auckland 0629 which ended on, or around 26 June 2023.
Mr Brennan then adjourned the hearing so that the substantive claims could be considered at the following hearing. Mr Brennan also pointed the parties to the part of the RTA which related to boarding house tenancies, that is Part 2A: Both parties have been advised to review and understand Part 2A of the RTA. Claims in the tenant application citing any section for non- boarding residential tenancies should be read as referring to the equivalent section in Part 2A, where applicable.
Mr Brennan’s decision carried a right of appeal or rehearing, but neither party applied for either.
Another hearing was then scheduled, which came before Adjudicator Pollak, who later issued a decision dated 18 March 2024. Unfortunately Ms Pollak was not aware of the earlier order from Mr Brennan, so she again traversed the question of the Tribunal’s jurisdiction, and whether this would be a boarding house or non-boarding house tenancy, reaching a different decision to Mr Brennan, finding that this was not a boarding house. The Adjudicator considered the tenant’s claims making order on those, but importantly did so applying the law as if this were a non-boarding house tenancy.
The landlord applied for a rehearing. Adjudicator Pollak granted the rehearing request, and noted that one of the reasons for that, was that she had issued a decision not being aware of the finding from Mr Brennan.
The hearing has then been scheduled before myself, and a hearing has been convened in the North Shore District Courthouse today on 25 July 2024, both parties were in attendance. As I advised at the start of todays hearing, because this hearing follows a rehearing, I am starting again as if the position were as it was before Adjudicator Pollak – that is the Tribunal has declared this to be a boarding house, so now I must consider the tenants claims as if it were a boarding house.
I note for completeness that the tenant disagrees with Mr Brennan’s findings. That may well be the case, but Mr Brennan’s decision was binding, and all parties including the Tribunal are now bound by it. I cannot reach a different decision on whether this is a boarding house. If the tenant considered Mr Brennan got his finding wrong, she could have appealed that decision to the District Court, and the District Court would have been able to make another decision on whether this was a boarding house. But no appeal was filed, so Mr Brennan’s finding that this is a boarding house stands. 1

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court 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.
The Tribunal must consider a claim for exemplary damages.
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. 1 I note that the District Court in the decision of Wing On So v Body Corporate 349200 [2024] NZDC 9439, confirmed that the there was a right of appeal of interim orders, prior to the substantive claim being decided by the Tribunal.
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.

ANALYSIS

I will now consider the tenant’s claims. Unlawful tenancy termination
The tenant states that on 1 June 2023 the landlord sent an email, advising that the tenancy agreement was being terminated. Prior to that, the landlord had requested in May that she sign a new tenancy agreement, simply because there had been a change of bank account, where a tenancy agreement had been signed only one year period in 2022.
The tenant believes that this termination was designed to get a new tenant in who would pay more.
The landlord states that it was infact the tenant who asked to move out of the tenancy. The tenant emailed the landlord on 22 June advising that she was leaving on 22 June.
The landlord said that the reason they wanted to terminate the tenancy was because they wanted to change the bank account number, and considered it would be tidier to have a new tenancy agreement.
The landlord agreed that the email dated 1 June 2023 was a termination notice, and it was given because the tenant did not confirm if she was intended to sign the new tenancy agreement.
The landlord confirmed that the termination notice was delivered by email and electronic message service. Analysis
Because this is a boarding house tenancy, as indicated by Mr Brennan, the ‘rules’ that exist between the parties are set out in Part 2A of the Residential Tenancies Act 1986 (RTA).
The provisions relating to the termination of a boarding house tenancy are found in section 66U specifically. That provision sets out the restrictions that apply, but what is relevant is that a landlord can give notice to terminate the boarding house tenancy, providing that 28 days notice is given. Here the landlord has given reasons for terminating the tenancy, but they did not need to do so. What is plain in section 66U, is that by providing 28 days notice is given, the termination is effective.
However, as I explained at the hearing today, the landlord has not given correct notice to the tenant of the termination. The notice was given by email and an electronic messenger service. Section 136 sets out the service requirements.
There is no ability to serve documents by an electronic messenger service.
There is limited ability to serve documents by email. Email can only be used to serve a document if it is specified as a service address (s136). In this case the tenancy agreement does not specify an email address for service, so the landlord needed to serve the termination notice in another way that complied with section 136, such as delivering it to the tenant personally.
However, the RTA does not deem failure to correctly serve a termination notice in a boarding house as being an unlawful act, and therefore there may be a technical breach, but I cannot order exemplary damages for it.
I would not order general or compensatory damages for the service breach, because I consider the effect for the tenant from the technical breach would not have caused her a loss. Failure to lodge bond
The tenant states that she paid $750.00 of bond at the start of her tenancy with the original landlord in 2018, that was Mr Budi. The tenant states that this bond was not lodged with the tenancy bond service.
The landlord stated that the original landlord did not transfer the bond to them, it was only given by the original landlord on the last day of the tenancy, and then the bond was given to the tenant.
The tenant agreed that she was given the bond back when the tenancy ended. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, for failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that 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.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond following the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
It seems very likely that there has been a breach of the landlord’s obligation to lodge the bond, but the landlord who has committed that breach would be Kenang Budi. The bond was paid to him in the context of the tenancy that existed at the time in 2018. When the Saputra’s became landlords, they entered into a new tenancy agreement with the tenants, but importantly, the tenant did not pay any bond to the Saputra’s, so there has been no breach on the part of the Saputra’s
I am minded that I have not heard from Mr Budi, but if the tenant is wanting to purse a claim in relation to the bond, it needs to be with Mr Budi who was the landlord when any breach occurred. Failure to issue receipt
The tenant states that when she paid the bond in December 2018, it was a bank transfer and she was not given a receipt for that bond payment.
The tenant states that when the landlords changed, these new landlords should have then given her a receipt for the bond transfer. Analysis
This is not a case of a simple change of landlord, the parties entered into a new tenancy agreement when the Saputra’s became the landlord. But there is no legal obligation that I know of, that required the Saputra’s to provide a receipt to the tenant for a bond lodged with a previous landlord. Unlawful entry
The tenant said there was a problem with the bathroom fan, and she advised the landlord of that problem. The landlord said an electrician would be coming into the house to fix the fan. The tenant asked if another day could be arranged, but in response the landlord said because it was a boarding house they could come in without consent.
The landlord states that the extractor fan was not working, so they arranged an electrician and gave the tenant notice, and the tenant agreed by text message and leaving the door into her room unlocked. The electrician then replaced the fan. The electrician then demanded payment, and the landlord then went into the boarding room to confirm it was working.
Ms Choi confirmed that there were text messages, but those state she was not available and asked for another day. The landlord responded that they can enter as they have a key, so the tenant did not need to be there, and the landlord insisted that they could enter without notice. Analysis
As I will discuss below, a landlord is able to enter the boarding house at any time, but is restricted in entering the boarding room. Section 66R relates to entry to a boarding room, and confirms that a landlord can give entry to enter the boarding room with the consent of the tenant freely given at the time of entry, or after provided at least 24 hours notice.
Based on what I have seen on the file and heard, I am not persuaded that the entirety of the entry from the landlord was lawful in relation to the work on the fan. There is no evidence of the landlord having approval to enter the room to check the work of the electrician, or providing adequate notice to the tenant for that.
I am satisfied that the landlord is likely to have entered the room in breach of their obligations under section 66R, which is deemed to be an unlawful act under section 66T(1)(a).
Taking into account the factors from section 109, I consider exemplary damages should be ordered for this. I consider the entry was intentional, in circumstances where the landlord should have known there was friction from the tenant with entry in the first instance. The effect for the tenant is that her privacy has been breached. There are strong interests for tenants and the public generally, that landlords only enter tenancy premises with the consent of the tenant or with lawful authority. It would be just to make an order in this case.
The maximum level of exemplary damages under scheduled 1A for a breach of section 66T(1)(a), is $1,500.00. I consider an order at one-third of the maximum would be reasonable, and that is ordered. Breach of quiet enjoyment
The tenant said that there were multiple visits to the premises including with their children, without providing notice. Analysis
As I explained to the tenant at the hearing, a landlord does not need to provide notice to enter the boarding house, only the boarding room. Section 66Q of the RTA confirms that: The landlord of a boarding house may enter the boarding house at any time.
Accordingly even if the landlord would go to the premises unannounced, that is not unlawful. Compensation for moving expenses
The tenant said that on the day she was moving out, she needed to make arrangements to live with her boyfriend, but she needed to rent a van to move her belongings, and seeks reimbursement of $110.00 for that.
The landlord disputes liability for this because she left the tenancy prior to the 28 days of the notice. Analysis
I accept that the tenant incurred these expenses, but the problem for the tenant is that I cannot see any breach on the part of the landlord for which compensation could be ordered. The only breach I can see is a technical one, about the email notice. But again I would not make orders in relation to the form of the notice.

FILING FEE

The tenant seeks an order that the landlord pay the filing fee. The filing fee could be reimbursed if the tenant was wholly or substantially successful, but given I find she has not been, I cannot order the filing fee.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case I find the tenant, who has applied for name suppression, has not been wholly or substantially successful, so name suppression is declined.

Tenancy Tribunal case 4593649 — Exemplary damages at 12A Waverley Avenue, Glenfield, Auckland 0629

At a glance

Tenancy Tribunal case 4593649 — Exemplary damages at 12A Waverley Avenue, Glenfield, Auckland 0629

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions