What was Tenancy Tribunal case 4626852 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $3,379.51 immediately, calculated as

How much money was awarded in case 4626852?

Bailiff Costs: $200.00 awarded to landlord; Cleaning: $310.50 awarded to landlord; Cleaning: $495.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Locksmith Costs: $241.77 awarded to landlord; Previous Order Application 4490560 D…: $1,840.37 awarded to landlord; Rent Arrears: $631.43 awarded to landlord

What type of tenancy dispute was case 4626852?

The primary dispute was Exemplary damages. Related themes: Cleanliness, Rent arrears.

Where can I read the official tribunal order for case 4626852?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9787252-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4626852 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $3,379.51 immediately, calculated as

How much money was awarded in case 4626852?

Bailiff Costs: $200.00 awarded to landlord; Cleaning: $310.50 awarded to landlord; Cleaning: $495.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Locksmith Costs: $241.77 awarded to landlord; Previous Order Application 4490560 D…: $1,840.37 awarded to landlord; Rent Arrears: $631.43 awarded to landlord

What type of tenancy dispute was case 4626852?

The primary dispute was Exemplary damages. Related themes: Cleanliness, Rent arrears.

Where can I read the official tribunal order for case 4626852?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9787252-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4626852 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4626852 — net $3,379.51 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4490560 dated 07/07/2023	$1,840.37	Previous order application 4490560 dated 07/07/2023
Further rent arrears	$631.43	Further rent arrears
Bailiff costs	$200.00	Bailiff costs
Locksmith costs	$241.77	Locksmith costs
Carpet Cleaning	$310.50	Carpet Cleaning
Cleaning	$495.00	Cleaning
Exemplary damages - Failure to allow entry	$500.00	Exemplary damages - Failure to allow entry
Exemplary damages - Failure to quit	$500.00	Exemplary damages - Failure to quit
Filing fee reimbursement	$20.44	must award the filing paid to commence the proceeding in the Tribunal, which is $20.44. NAME SUPPRESSION
Net award	$3,379.51
Total payable by Tenant to Landlord	$3,379.51

Order

[The tenant/s] must pay [The landlord/s] $3,379.51 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,360.00 ([Bond number suppressed]) to [The landlord/s] immediately. DescriptionLandlord Previous order application 4490560 dated 07/07/2023 $1,840.37 Further rent arrears$631.43 Bailiff costs$200.00 Locksmith costs$241.77 Carpet Cleaning$310.50 Cleaning$495.00 Exemplary damages - Failure to allow entry$500.00 Exemplary damages - Failure to quit$500.00 Filing fee reimbursement$20.44 Total award$4,739.51 Minus bond- $1,360.00 Total payable by Tenant to Landlord$3,379.51

Reasons

The Tribunal must consider a further application filed by the landlord against the tenant in relation to various costs at the end of the tenancy, as well as exemplary damages.

BACKGROUND

The background leading up to this claim has been lengthy and troubling, and is set out in previous orders of the Tribunal. I will not set out that background in significant detail in this decision, however for context it is relevant to note: a. The landlord is [The landlord/s], by way of a property manager, [The property manager/s]. The sole tenant is [The tenant/s]. b. On 2 May 2023 the Tribunal ordered that the tenancy terminate on the basis that the Tribunal was satisfied the tenant has not complied with her obligations under the Residential Tenancies Act 1986 (RTA) in allowing the landlord access to the premises. Possession was ordered to return to the landlord on 22 May 2023. c. The tenant applied for a rehearing of the 2 May 2023 order. d. The Tribunal ordered a stay of proceedings pending any decision in relation to the rehearing application. e. The Tribunal convened a hearing on 6 July 2023 to consider the rehearing request, and landlords’ further application for rent arrears. In a decision dated 7 July 2023 I declined the rehearing request, and lifted the stay of proceedings. I also ordered the tenant to pay rent arrears of $1,819.93, being rent arrears as of 6 July 2023 as well as the filing fee, meaning the tenant needed to pay the landlord $1,840.37. f. The tenant did not vacate the premises, meaning the landlord needed to apply for an eviction of the tenant. The Bailiff evicted the tenant at 9:00am on 27 July 2023. g. The landlord has filed a further claim with the Tribunal, which is the subject of this decision, seeking final costs in relation to the tenancy and exemplary damages h. A telephone hearing was convened on 20 November 2023. The tenant had advised in advance she did not want to be involved with the hearing. However for completeness I attempted to telephone the tenant on the only phone number available, which was a cell phone number ending 4014. There was no response to that call either. The hearing proceeded as scheduled without the tenant in attendance.

RENT ARREARS

The landlord has applied for an order that the tenant pay further rent arrears to the sum of $631.43. The tenant is liable for rent payments while she remains in possession of the premises.
The landlord has established that the tenant is in arrears to the amount claimed, and that is ordered in full.

BAILIFF COSTS

The landlord seeks costs of $200.00 for the application fee for the eviction. This was a cost incurred as a result of the breach from the tenant, and is ordered in full.

LOCKSMITH COSTS

The landlord seeks locksmith costs of $241.77, being the costs incurred for changing the locks at the time of the eviction, as the tenant did not return the keys.
Section 40 of the RTA sets out the tenants responsibilities, and that includes that at the end of the tenancy the tenant must “return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for use of the tenant”. I am satisfied the tenant did not comply with that requirement, so she is liable for the costs for the lock / key replacement.

CLEANING AND RUBBISH REMOVAL

The landlord seeks costs for carpet cleaning when the premises were returned. The invoiced amount being $310.50.
The landlord has also claimed $495.00 for 11 ½ hours work under taken by the landlord at the tenancy, including cleaning, rubbish removal, clearing of block toilet and other work to return the premises to a state of being reasonably clean and tidy.
The Residential Tenancies Act 1986 (RTA) requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
It is important to note that the RTA does not require the premises to be provided / returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
The photographs provided at the end of the tenancy show that the premises had reasonably extensive rubbish, had been graffitied and were very unclean. The claim from the landlord for carpet cleaning, general cleaning and rubbish removal are I accept reasonable, and represents work that the landlord would have reasonably needed to undertake to return the premises to the state of being reasonably clean and tidy. These claims are ordered in full.

EXEMPLARY DAMAGES

The landlord seeks exemplary damages for the tenant failing to allow entry to the premises, and failing to quit the premises when the tenancy had ended.
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.
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. Failure to allow entry to the premises
The landlord seeks an order for exemplary damages, on the basis that the tenant refused to allow entry to the premises, being a breach of section 48(4)(b) of the RTA.
Section 48 sets out the landlords right of entry, and confirms that the landlord is entitled to enter the premises following notice to allow maintenance and inspections. Section 48(4)(b) confirms that it is an unlawful act (meaning exemplary damages could be ordered), when there has been: failure by the tenant, without reasonable excuse, to allow the landlord to enter upon the premises in any circumstances in which the landlord is entitled to enter under subsections (2) to (3):
It is the case that the Tribunal has made a finding that the tenant has failed to comply with her section 48(2) obligation to allow entry to the premises. In the Tribunal’s order from 25 October 2022, the Tribunal determined that: I am satisfied on the evidence before me that [The tenant/s] is in breach of section 48(2)(d) of the Act, in particular, by refusing access to enable contractors employed by the landlord to remedy or attempt to remedy issues with the oven and to repair outside lights at the premises. Both were matters requested by [The tenant/s] to be remedied.
The question then becomes whether the tenant had a “reasonable excuse” for failing to allow the landlord entry, and I find she has not identified any reasonable excuse. I find therefore that the tenant has committed an unlawful act.
Taking into consideration the factors found in section 109, I have determined that exemplary damages should be ordered for these reasons: a. I consider the tenant’s breach is likely to have been intentional. b. The effect of the unlawful act is that the landlord was not able to comply with its obligations under the RTA to maintain the premises, which is also an interest for the landlord as owner of the premises. c. There are strong interests for the landlord and tenant that the premises are properly maintained, and this is also a strong public interest. d. I consider in the circumstances it would be just to make an order of exemplary damage.
The maximum level of exemplary damages that can be ordered under section 48(2)(b) is $1,500.00. In this case I have determined that an order at 1/3rd of the maximum is indicated. I consider that level of exemplary damages would do justice to the situation in the circumstances. I therefore order $500.00 to be paid to the landlord. Failure to quit the premises
The landlord also seeks exemplary damages for the tenant failing to quit the premises, that is return possession of the premises after the tenancy had ended. The application is made under section 40(3A)(a).
Section 40 sets out the tenant’s responsibilities, and that includes at section 40(1)(e)(i) that: on the termination of the tenancy [the tenant shall] (i)Quit the premises
Section 40(3A) confirms that it is an unlawful act when there is: A failure, without reasonable excuse, to quit the premises in contravention of subsection (1)(e)(i).
In this case the tenant has failed to leave the premises following the tenancy being terminated. While a stay was originally ordered pending the rehearing consideration, that stay was lifted in the subsequent order, which then required that possession of the premises be returned to the landlord. The tenant failed to comply with that requirement, and the landlord needed to enforce an eviction by way of the bailiffs.
Again the question is whether the tenant has presented a “reasonable excuse” for failing to quit, and I find she has not. The tenant has again committed an unlawful act.
Taking into consideration the section 109 factors I find that exemplary damages should be ordered for these reasons: a. I consider the tenants actions were intentional. I consider the tenant would have been well aware that possession needed to return to the landlord as a result of the rehearing application being dismissed. b. The effect of the unlawful act was that the landlord could not have the premises returned. That would no doubt have caused additional work for the landlord and property manager, including needing to proceed with the eviction. c. There are very strong interests for landlords and the public generally, that when tenancies are terminated, that possession is returned to the landlord efficiently. d. I consider it would be just to make this order.
The maximum level of exemplary damaged is $1,500.00, and for similar reasons I order exemplary damages at 1/3 rd of the maximum level.

COMBINE PREVIOUS ORDER

The tenant has not paid the landlord the amount ordered under the Tribunal’s previous order. I therefore order that the amount earlier ordered ($1,840.37) be combined in this order. For the purpose of enforcement, it is only this order that the landlord should enforce.

FILING FEE

Because the applicant has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

Name suppression has been ordered previously for both parties, and that is to continue to apply for the reasons given earlier.

Claims and awards in Tenancy Tribunal application 4626852 — net $3,379.51 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4490560 dated 07/07/2023	$1,840.37	Previous order application 4490560 dated 07/07/2023
Further rent arrears	$631.43	Further rent arrears
Bailiff costs	$200.00	Bailiff costs
Locksmith costs	$241.77	Locksmith costs
Carpet Cleaning	$310.50	Carpet Cleaning
Cleaning	$495.00	Cleaning
Exemplary damages - Failure to allow entry	$500.00	Exemplary damages - Failure to allow entry
Exemplary damages - Failure to quit	$500.00	Exemplary damages - Failure to quit
Filing fee reimbursement	$20.44	must award the filing paid to commence the proceeding in the Tribunal, which is $20.44. NAME SUPPRESSION
Net award	$3,379.51
Total payable by Tenant to Landlord	$3,379.51

Order

[The tenant/s] must pay [The landlord/s] $3,379.51 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,360.00 ([Bond number suppressed]) to [The landlord/s] immediately. DescriptionLandlord Previous order application 4490560 dated 07/07/2023 $1,840.37 Further rent arrears$631.43 Bailiff costs$200.00 Locksmith costs$241.77 Carpet Cleaning$310.50 Cleaning$495.00 Exemplary damages - Failure to allow entry$500.00 Exemplary damages - Failure to quit$500.00 Filing fee reimbursement$20.44 Total award$4,739.51 Minus bond- $1,360.00 Total payable by Tenant to Landlord$3,379.51

Reasons

The Tribunal must consider a further application filed by the landlord against the tenant in relation to various costs at the end of the tenancy, as well as exemplary damages.

BACKGROUND

The background leading up to this claim has been lengthy and troubling, and is set out in previous orders of the Tribunal. I will not set out that background in significant detail in this decision, however for context it is relevant to note: a. The landlord is [The landlord/s], by way of a property manager, [The property manager/s]. The sole tenant is [The tenant/s]. b. On 2 May 2023 the Tribunal ordered that the tenancy terminate on the basis that the Tribunal was satisfied the tenant has not complied with her obligations under the Residential Tenancies Act 1986 (RTA) in allowing the landlord access to the premises. Possession was ordered to return to the landlord on 22 May 2023. c. The tenant applied for a rehearing of the 2 May 2023 order. d. The Tribunal ordered a stay of proceedings pending any decision in relation to the rehearing application. e. The Tribunal convened a hearing on 6 July 2023 to consider the rehearing request, and landlords’ further application for rent arrears. In a decision dated 7 July 2023 I declined the rehearing request, and lifted the stay of proceedings. I also ordered the tenant to pay rent arrears of $1,819.93, being rent arrears as of 6 July 2023 as well as the filing fee, meaning the tenant needed to pay the landlord $1,840.37. f. The tenant did not vacate the premises, meaning the landlord needed to apply for an eviction of the tenant. The Bailiff evicted the tenant at 9:00am on 27 July 2023. g. The landlord has filed a further claim with the Tribunal, which is the subject of this decision, seeking final costs in relation to the tenancy and exemplary damages h. A telephone hearing was convened on 20 November 2023. The tenant had advised in advance she did not want to be involved with the hearing. However for completeness I attempted to telephone the tenant on the only phone number available, which was a cell phone number ending 4014. There was no response to that call either. The hearing proceeded as scheduled without the tenant in attendance.

RENT ARREARS

The landlord has applied for an order that the tenant pay further rent arrears to the sum of $631.43. The tenant is liable for rent payments while she remains in possession of the premises.
The landlord has established that the tenant is in arrears to the amount claimed, and that is ordered in full.

BAILIFF COSTS

The landlord seeks costs of $200.00 for the application fee for the eviction. This was a cost incurred as a result of the breach from the tenant, and is ordered in full.

LOCKSMITH COSTS

The landlord seeks locksmith costs of $241.77, being the costs incurred for changing the locks at the time of the eviction, as the tenant did not return the keys.
Section 40 of the RTA sets out the tenants responsibilities, and that includes that at the end of the tenancy the tenant must “return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for use of the tenant”. I am satisfied the tenant did not comply with that requirement, so she is liable for the costs for the lock / key replacement.

CLEANING AND RUBBISH REMOVAL

The landlord seeks costs for carpet cleaning when the premises were returned. The invoiced amount being $310.50.
The landlord has also claimed $495.00 for 11 ½ hours work under taken by the landlord at the tenancy, including cleaning, rubbish removal, clearing of block toilet and other work to return the premises to a state of being reasonably clean and tidy.
The Residential Tenancies Act 1986 (RTA) requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
It is important to note that the RTA does not require the premises to be provided / returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
The photographs provided at the end of the tenancy show that the premises had reasonably extensive rubbish, had been graffitied and were very unclean. The claim from the landlord for carpet cleaning, general cleaning and rubbish removal are I accept reasonable, and represents work that the landlord would have reasonably needed to undertake to return the premises to the state of being reasonably clean and tidy. These claims are ordered in full.

EXEMPLARY DAMAGES

The landlord seeks exemplary damages for the tenant failing to allow entry to the premises, and failing to quit the premises when the tenancy had ended.
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.
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. Failure to allow entry to the premises
The landlord seeks an order for exemplary damages, on the basis that the tenant refused to allow entry to the premises, being a breach of section 48(4)(b) of the RTA.
Section 48 sets out the landlords right of entry, and confirms that the landlord is entitled to enter the premises following notice to allow maintenance and inspections. Section 48(4)(b) confirms that it is an unlawful act (meaning exemplary damages could be ordered), when there has been: failure by the tenant, without reasonable excuse, to allow the landlord to enter upon the premises in any circumstances in which the landlord is entitled to enter under subsections (2) to (3):
It is the case that the Tribunal has made a finding that the tenant has failed to comply with her section 48(2) obligation to allow entry to the premises. In the Tribunal’s order from 25 October 2022, the Tribunal determined that: I am satisfied on the evidence before me that [The tenant/s] is in breach of section 48(2)(d) of the Act, in particular, by refusing access to enable contractors employed by the landlord to remedy or attempt to remedy issues with the oven and to repair outside lights at the premises. Both were matters requested by [The tenant/s] to be remedied.
The question then becomes whether the tenant had a “reasonable excuse” for failing to allow the landlord entry, and I find she has not identified any reasonable excuse. I find therefore that the tenant has committed an unlawful act.
Taking into consideration the factors found in section 109, I have determined that exemplary damages should be ordered for these reasons: a. I consider the tenant’s breach is likely to have been intentional. b. The effect of the unlawful act is that the landlord was not able to comply with its obligations under the RTA to maintain the premises, which is also an interest for the landlord as owner of the premises. c. There are strong interests for the landlord and tenant that the premises are properly maintained, and this is also a strong public interest. d. I consider in the circumstances it would be just to make an order of exemplary damage.
The maximum level of exemplary damages that can be ordered under section 48(2)(b) is $1,500.00. In this case I have determined that an order at 1/3rd of the maximum is indicated. I consider that level of exemplary damages would do justice to the situation in the circumstances. I therefore order $500.00 to be paid to the landlord. Failure to quit the premises
The landlord also seeks exemplary damages for the tenant failing to quit the premises, that is return possession of the premises after the tenancy had ended. The application is made under section 40(3A)(a).
Section 40 sets out the tenant’s responsibilities, and that includes at section 40(1)(e)(i) that: on the termination of the tenancy [the tenant shall] (i)Quit the premises
Section 40(3A) confirms that it is an unlawful act when there is: A failure, without reasonable excuse, to quit the premises in contravention of subsection (1)(e)(i).
In this case the tenant has failed to leave the premises following the tenancy being terminated. While a stay was originally ordered pending the rehearing consideration, that stay was lifted in the subsequent order, which then required that possession of the premises be returned to the landlord. The tenant failed to comply with that requirement, and the landlord needed to enforce an eviction by way of the bailiffs.
Again the question is whether the tenant has presented a “reasonable excuse” for failing to quit, and I find she has not. The tenant has again committed an unlawful act.
Taking into consideration the section 109 factors I find that exemplary damages should be ordered for these reasons: a. I consider the tenants actions were intentional. I consider the tenant would have been well aware that possession needed to return to the landlord as a result of the rehearing application being dismissed. b. The effect of the unlawful act was that the landlord could not have the premises returned. That would no doubt have caused additional work for the landlord and property manager, including needing to proceed with the eviction. c. There are very strong interests for landlords and the public generally, that when tenancies are terminated, that possession is returned to the landlord efficiently. d. I consider it would be just to make this order.
The maximum level of exemplary damaged is $1,500.00, and for similar reasons I order exemplary damages at 1/3 rd of the maximum level.

COMBINE PREVIOUS ORDER

The tenant has not paid the landlord the amount ordered under the Tribunal’s previous order. I therefore order that the amount earlier ordered ($1,840.37) be combined in this order. For the purpose of enforcement, it is only this order that the landlord should enforce.

FILING FEE

Because the applicant has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

Name suppression has been ordered previously for both parties, and that is to continue to apply for the reasons given earlier.

Tenancy Tribunal case 4626852 — Exemplary damages

At a glance

Tenancy Tribunal case 4626852 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RENT ARREARS

BAILIFF COSTS

LOCKSMITH COSTS

CLEANING AND RUBBISH REMOVAL

EXEMPLARY DAMAGES

COMBINE PREVIOUS ORDER

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RENT ARREARS

BAILIFF COSTS

LOCKSMITH COSTS

CLEANING AND RUBBISH REMOVAL

EXEMPLARY DAMAGES

COMBINE PREVIOUS ORDER

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions