What was Tenancy Tribunal case 4625652 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 4625652?

Compensation: $4,000.00 awarded to tenant; Compensation: Invalid Notice: $2,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to landlord; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Power: $529.75 awarded to landlord; Property File: $10.20 awarded to tenant

What type of tenancy dispute was case 4625652?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4625652?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9632204-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4625652 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 4625652?

Compensation: $4,000.00 awarded to tenant; Compensation: Invalid Notice: $2,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to landlord; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Power: $529.75 awarded to landlord; Property File: $10.20 awarded to tenant

What type of tenancy dispute was case 4625652?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4625652?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9632204-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4625652 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4625652 — net $6,500.89 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Power	$529.75		Power
Exemplary damages for not allowing entry for inspections	$1,000.00		Exemplary damages for not allowing entry for inspections
Compensation: invalid notice		$2,500.00	invalid notice
Exemplary damages: interference with quiet enjoyment		$1,500.00	interference with quiet enjoyment
Rent repayment		$4,000.00	Rent repayment
Property file		$10.20	Property file
Filing fee		$20.44	Filing fee
Total award	$1,529.75	$8,030.64
Net award		$6,500.89
Total payable by Landlord to Tenant		$6,500.89

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Toni Drake and Robert Drake must pay [the tenant/s] $6,500.89 immediately, calculated as shown in the table below.
The parties’ claims are otherwise dismissed.
The tenant’s claims against Steven Taylor and Sheree Taylor are adjourned and will be dealt with under the tenant’s application number 4706669.

Reasons

This order deals only with the tenant’s claims against Toni Drake and Robert Drake (the landlords) and their claims against the tenant. I will deal with the tenant’s claims against Steven Taylor and Sheree Taylor when I hear their applications against the tenant and the tenant’s application number 470669 against them on 21 November 2023.
This order follows the Tribunal’s order made on 7 September declaring the landlords’ termination notice invalid. I refer to that order for some of the background to this case.
I will deal first with the landlords’ application. Landlords Claims Failure to Quit
It follows from my decision that the landlords’ termination notice was invalid that their claim for exemplary damages for the tenant’s failure to quit must be dismissed. The tenant had no obligation to quit the premises because she remained the tenant at the time that the landlords expected her to vacate them. Power Charges
The landlords’ claim for payment of power charges was supported by copies of invoices and it was not disputed by the tenant. It relates to a time when the power account was in the landlords’ names, and they required a contribution from the tenant according to how much power she had used in the premises measured by a check meter.
I find the claim proved and I have awarded the claim in full. Landlord Entry
The landlords claim exemplary damages for the tenant’s failure to allow them entry to the premises when they were permitted to enter.
A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
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.
The landlords assert that they served valid notices to inspect the premises on the tenant and the tenant did not allow them entry.
They also assert that the tenant was unreasonable in not allowing them entry to show the premises to prospective buyers of the premises.
Having considered the evidence in relation to access for viewings, I am not satisfied that the tenant unreasonably refused access. She did provide access for viewings. Possibly not as freely as the landlords would have liked, but the evidence does not establish that she was unreasonable.
I am satisfied that the tenant did not allow access for an inspections when the landlord had given proper notice and the landlords were entitled to enter the premises to carry out an inspection.
There were notices from May to July. Anything from August onwards I will deal with when I deal with Mr and Mrs Taylor’s own applications. The tenant either did not allow access by refusing it or by making it impossible for the landlords to enter. The tenant denies that, but I find that the landlords have produced the evidence in the form of emails and notices to prove the claim. On the final occasion, the landlord had a support person with her for the inspection but still refused it.
These refusals were blatant, and I do not accept that the tenant had any reasonable excuse for refusing the landlords entry. A substantial award of exemplary damages is called for. Landlords are entitled to inspect the premises from time to time in accordance with the Act and it is important that tenants allow lawful inspections. I have awarded exemplary damages in the sum of $1,000. Tenants’ Claims Interference With Quiet Enjoyment/Termination Notice Without Grounds
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Under Section 60AA of the Act, a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.
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) Residential Tenancies Act 1986.
I have found that the landlords’ termination notice was invalid. But I accept that there was room for argument on the issue. An alternative view is that provided the notice is valid when it is served, it remains valid although circumstances may have changed so that the ground for the notice can no longer be relied on.
The landlords said that they had been advised that the notice could be valid, and I accept that. If follows that I cannot find that the landlords knew that they were not entitled to serve the notice. Therefore, I cannot find that there has been an unlawful act under s60AA.
Following the same reasoning, I don’t think that I can find that the notice can constitute interference with the tenant’s quiet enjoyment amounting to harassment. I note that one notice alone would not amount to harassment. It would need to be part of a pattern of behaviour to amount to harassment.
So, there is no justification for awarding exemplary damages in relation to the notice. But the notice was invalid and to that extent it interfered with the tenant’s right to have quiet enjoyment of the premises. That entitles the Tribunal to award compensation.
It is obvious to me that the notice has caused the tenant considerable distress. She had the uncertainty of not knowing whether she would be evicted from the premises. I accept that has had a detrimental effect on her sense of security and the wellbeing of her and her son.
I find that an award to compensate the tenant for the distress, upset and stress of the notice should be made. There is no science to assessing the amount of such an award. In this case it should be substantial without being excessive. In my view an award of $2,500 is appropriate.
I also find that in the months leading up to the eviction date, there was a pattern of behaviour that amounted to harassment. The tenant talked about bullying behaviour, the landlords parking their vehicles close to the premises, coming to the premises without warning and pestering her about when she was intended vacating the premises. I accept the substance of her evidence in these respects. It was supported to some extent by the extensive video and voice evidence that she produced.
I note that the landlords may have had the right to park their vehicles where they did, but it was not necessary to do so, and I find that it was intended to make the tenant uncomfortable.
Plainly, the landlords were not confident that the tenant would vacate by the time the termination notice expired. At least to some extent, that stemmed from the fact that they were unsure whether the notice was valid. In any case, they were not permitted to pester the tenant about leaving. They had served the notice, and if the tenant did not accept it and chose to challenge it, that was her prerogative.
I note that at one time the landlords cut off the tenant’s power. I have taken that into consideration in this award of exemplary damages.
This is a case where there should be an award of exemplary damages. The landlords’ actions were deliberate and designed to make life uncomfortable for the tenant with the aim of encouraging her to leave. This went on over a period of months and the tenant and her son found it unpleasant and at times distressing. An award of $1,500 is appropriate. Unlawful Residential Premises
Where the Tribunal declares the residential premises to be unlawful, it may order the return of all rent paid by the tenant. It may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so.
I have already refused to make an order for rent arrears in the landlords’ favour. I must now consider whether to order the return of rent to the tenant and if so in what amount.
The Act requires the Tribunal to consider the special circumstances of the case. Relevant is the fact, as I have found below, that the premises were compliant with the Act, generally in good condition and physically suitable for residential occupation. They were spacious and they suited the tenant.
The reason that the landlords had not obtained the necessary resource consent was that the council required the premises to be raised to meet the flood plain requirements. That would have been expensive, and the landlords chose not to do it. They observed that the premises were no higher than the house they occupied.
Against that, is the fact that they knew the premises were unlawful for residential occupation and they rented them to the tenant without disclosing that fact to her. The tenant called that deception with some justification. But I am not dealing with a claim in deceit. I am dealing with a claim under the Act.
I find that there should be some repayment of rent but that in all the circumstances, a substantial deduction from that should be made. The rent payable over the tenancy (to 2 August) was approximately $42,000 and I find that the landlords should repay $4,000 of that, being approximately 10% of the rent. Condition of the premises
The evidence did not prove that the premises were not compliant with the Act. There were some issues that arose during the tenancy, but the tenant’s evidence did not contradict the landlords’ evidence that they dealt with them appropriately when they arose. This claim is therefore dismissed. The Tenant’s Belongings
The tenant stored some of her belongings in a container near the premises with the landlords’ permission. They were damaged by water/moisture entering the container. The tenant claims that the landlords are responsible for the damage because by allowing her to use the container they should have ensured that it was watertight.
I do not accept that. There is no evidence that the landlords made any representations about the condition of the container. I find that the tenant should have satisfied herself about the suitability of the container to store her belongings. She should also have checked on them from time to time. I would say that it was unwise to store anything in a container of value without first verifying that it was safe and secure.
This claim is therefore dismissed. Retaliatory Notice
The application was made more than 28 days after the notice was served and so I cannot consider this claim. I would not, in any case, have found the notice to be retaliatory. It was an ill judged and invalid notice, but it was not motivated by the tenants’ exercise of her rights. If anything, it was motivated by the landlords need to complete the sale of the premises quickly and they did not have time to serve a 90-day notice based of their sale of the premises. Council File and Filing Fee
I have awarded the cost of obtaining the council file and I also the tenant the filing fee because she has had substantial success. Suppression
For the same reason I have given tenant name suppression.

Claims and awards in Tenancy Tribunal application 4625652 — net $6,500.89 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Power	$529.75		Power
Exemplary damages for not allowing entry for inspections	$1,000.00		Exemplary damages for not allowing entry for inspections
Compensation: invalid notice		$2,500.00	invalid notice
Exemplary damages: interference with quiet enjoyment		$1,500.00	interference with quiet enjoyment
Rent repayment		$4,000.00	Rent repayment
Property file		$10.20	Property file
Filing fee		$20.44	Filing fee
Total award	$1,529.75	$8,030.64
Net award		$6,500.89
Total payable by Landlord to Tenant		$6,500.89

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Toni Drake and Robert Drake must pay [the tenant/s] $6,500.89 immediately, calculated as shown in the table below.
The parties’ claims are otherwise dismissed.
The tenant’s claims against Steven Taylor and Sheree Taylor are adjourned and will be dealt with under the tenant’s application number 4706669.

Reasons

This order deals only with the tenant’s claims against Toni Drake and Robert Drake (the landlords) and their claims against the tenant. I will deal with the tenant’s claims against Steven Taylor and Sheree Taylor when I hear their applications against the tenant and the tenant’s application number 470669 against them on 21 November 2023.
This order follows the Tribunal’s order made on 7 September declaring the landlords’ termination notice invalid. I refer to that order for some of the background to this case.
I will deal first with the landlords’ application. Landlords Claims Failure to Quit
It follows from my decision that the landlords’ termination notice was invalid that their claim for exemplary damages for the tenant’s failure to quit must be dismissed. The tenant had no obligation to quit the premises because she remained the tenant at the time that the landlords expected her to vacate them. Power Charges
The landlords’ claim for payment of power charges was supported by copies of invoices and it was not disputed by the tenant. It relates to a time when the power account was in the landlords’ names, and they required a contribution from the tenant according to how much power she had used in the premises measured by a check meter.
I find the claim proved and I have awarded the claim in full. Landlord Entry
The landlords claim exemplary damages for the tenant’s failure to allow them entry to the premises when they were permitted to enter.
A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
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.
The landlords assert that they served valid notices to inspect the premises on the tenant and the tenant did not allow them entry.
They also assert that the tenant was unreasonable in not allowing them entry to show the premises to prospective buyers of the premises.
Having considered the evidence in relation to access for viewings, I am not satisfied that the tenant unreasonably refused access. She did provide access for viewings. Possibly not as freely as the landlords would have liked, but the evidence does not establish that she was unreasonable.
I am satisfied that the tenant did not allow access for an inspections when the landlord had given proper notice and the landlords were entitled to enter the premises to carry out an inspection.
There were notices from May to July. Anything from August onwards I will deal with when I deal with Mr and Mrs Taylor’s own applications. The tenant either did not allow access by refusing it or by making it impossible for the landlords to enter. The tenant denies that, but I find that the landlords have produced the evidence in the form of emails and notices to prove the claim. On the final occasion, the landlord had a support person with her for the inspection but still refused it.
These refusals were blatant, and I do not accept that the tenant had any reasonable excuse for refusing the landlords entry. A substantial award of exemplary damages is called for. Landlords are entitled to inspect the premises from time to time in accordance with the Act and it is important that tenants allow lawful inspections. I have awarded exemplary damages in the sum of $1,000. Tenants’ Claims Interference With Quiet Enjoyment/Termination Notice Without Grounds
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Under Section 60AA of the Act, a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.
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) Residential Tenancies Act 1986.
I have found that the landlords’ termination notice was invalid. But I accept that there was room for argument on the issue. An alternative view is that provided the notice is valid when it is served, it remains valid although circumstances may have changed so that the ground for the notice can no longer be relied on.
The landlords said that they had been advised that the notice could be valid, and I accept that. If follows that I cannot find that the landlords knew that they were not entitled to serve the notice. Therefore, I cannot find that there has been an unlawful act under s60AA.
Following the same reasoning, I don’t think that I can find that the notice can constitute interference with the tenant’s quiet enjoyment amounting to harassment. I note that one notice alone would not amount to harassment. It would need to be part of a pattern of behaviour to amount to harassment.
So, there is no justification for awarding exemplary damages in relation to the notice. But the notice was invalid and to that extent it interfered with the tenant’s right to have quiet enjoyment of the premises. That entitles the Tribunal to award compensation.
It is obvious to me that the notice has caused the tenant considerable distress. She had the uncertainty of not knowing whether she would be evicted from the premises. I accept that has had a detrimental effect on her sense of security and the wellbeing of her and her son.
I find that an award to compensate the tenant for the distress, upset and stress of the notice should be made. There is no science to assessing the amount of such an award. In this case it should be substantial without being excessive. In my view an award of $2,500 is appropriate.
I also find that in the months leading up to the eviction date, there was a pattern of behaviour that amounted to harassment. The tenant talked about bullying behaviour, the landlords parking their vehicles close to the premises, coming to the premises without warning and pestering her about when she was intended vacating the premises. I accept the substance of her evidence in these respects. It was supported to some extent by the extensive video and voice evidence that she produced.
I note that the landlords may have had the right to park their vehicles where they did, but it was not necessary to do so, and I find that it was intended to make the tenant uncomfortable.
Plainly, the landlords were not confident that the tenant would vacate by the time the termination notice expired. At least to some extent, that stemmed from the fact that they were unsure whether the notice was valid. In any case, they were not permitted to pester the tenant about leaving. They had served the notice, and if the tenant did not accept it and chose to challenge it, that was her prerogative.
I note that at one time the landlords cut off the tenant’s power. I have taken that into consideration in this award of exemplary damages.
This is a case where there should be an award of exemplary damages. The landlords’ actions were deliberate and designed to make life uncomfortable for the tenant with the aim of encouraging her to leave. This went on over a period of months and the tenant and her son found it unpleasant and at times distressing. An award of $1,500 is appropriate. Unlawful Residential Premises
Where the Tribunal declares the residential premises to be unlawful, it may order the return of all rent paid by the tenant. It may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so.
I have already refused to make an order for rent arrears in the landlords’ favour. I must now consider whether to order the return of rent to the tenant and if so in what amount.
The Act requires the Tribunal to consider the special circumstances of the case. Relevant is the fact, as I have found below, that the premises were compliant with the Act, generally in good condition and physically suitable for residential occupation. They were spacious and they suited the tenant.
The reason that the landlords had not obtained the necessary resource consent was that the council required the premises to be raised to meet the flood plain requirements. That would have been expensive, and the landlords chose not to do it. They observed that the premises were no higher than the house they occupied.
Against that, is the fact that they knew the premises were unlawful for residential occupation and they rented them to the tenant without disclosing that fact to her. The tenant called that deception with some justification. But I am not dealing with a claim in deceit. I am dealing with a claim under the Act.
I find that there should be some repayment of rent but that in all the circumstances, a substantial deduction from that should be made. The rent payable over the tenancy (to 2 August) was approximately $42,000 and I find that the landlords should repay $4,000 of that, being approximately 10% of the rent. Condition of the premises
The evidence did not prove that the premises were not compliant with the Act. There were some issues that arose during the tenancy, but the tenant’s evidence did not contradict the landlords’ evidence that they dealt with them appropriately when they arose. This claim is therefore dismissed. The Tenant’s Belongings
The tenant stored some of her belongings in a container near the premises with the landlords’ permission. They were damaged by water/moisture entering the container. The tenant claims that the landlords are responsible for the damage because by allowing her to use the container they should have ensured that it was watertight.
I do not accept that. There is no evidence that the landlords made any representations about the condition of the container. I find that the tenant should have satisfied herself about the suitability of the container to store her belongings. She should also have checked on them from time to time. I would say that it was unwise to store anything in a container of value without first verifying that it was safe and secure.
This claim is therefore dismissed. Retaliatory Notice
The application was made more than 28 days after the notice was served and so I cannot consider this claim. I would not, in any case, have found the notice to be retaliatory. It was an ill judged and invalid notice, but it was not motivated by the tenants’ exercise of her rights. If anything, it was motivated by the landlords need to complete the sale of the premises quickly and they did not have time to serve a 90-day notice based of their sale of the premises. Council File and Filing Fee
I have awarded the cost of obtaining the council file and I also the tenant the filing fee because she has had substantial success. Suppression
For the same reason I have given tenant name suppression.

Tenancy Tribunal case 4625652 — Exemplary damages

At a glance

Tenancy Tribunal case 4625652 — Exemplary damages

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