What was Tenancy Tribunal case 4627096 about?

The tribunal order states: [The tenant’]s name and identifying details, including the tenancy

How much money was awarded in case 4627096?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4627096?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4627096?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9788623-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4627096 about?

The tribunal order states: [The tenant’]s name and identifying details, including the tenancy

How much money was awarded in case 4627096?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4627096?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4627096?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9788623-Tribunal_Order_Redacted.pdf.

Beach Haven, Auckland Tenancy Tribunal Case 4627096 — Exemplary damages

Order

[The tenant’]s name and identifying details, including the tenancy address, must not be published.
The application is dismissed.

Reasons

The tenant attended the hearing in person. 1
Ms Gao attended in person. She was represented by Rex Gilfillan, her brother- in-law.
The tenant claims that the landlord’s 90-day notice terminating the tenancy was unlawful because the ground given that the premises were to be put up for sale within 90 days of the tenancy ending were not genuine. She seeks compensation for her associated losses and exemplary damages. 1 This is a reserved decision. I heard this matter on 14 December 2023. Background
The tenancy began on 30 June 2016. It ended on 11 April 2023, so lasted for almost seven years.
The house has a floor area of about 120m 2 , three bedrooms and one bathroom. The land area is about 760m 2 . The rent was originally $500.00 and had increased to $540.00 by the end of the tenancy.
The tenant looked after the premises well. However, the premises were becoming worn and tired and in need of maintenance.
On 9 January 2023, the landlord’s property manager gave the tenant a 90-day notice to vacate the premises by the end of 9 April 2023 on the ground that the landlord intended to renovate the premises and sell them vacant of any tenant.
The notice could hardly have come at a worse time for the tenant. 2 Among other things, she was needing a full knee replacement, her sister and her brother-in- law were suffering from cancer (and later passed away), her youngest daughter was in her final year of school, and she was also nearing the end of her Horticulture studies.
The tenant distrusted the validity of the notice and kept a watching brief on what happened to the premises.
Despite what the landlord’s notice said, the premises were never advertised for sale. On 28 June 2023 (less than six months after being given notice, and less than three months after she moved out), the landlord advertised the premises for rent again. The tenant made discrete enquiries and discovered that the landlord wanted long-term tenant for the premises.
In the tenant’s mind the landlord’s readvertising the premises for rent validated her suspicion that the landlord terminated the tenancy on a false ground.
The tenant submits she suffered significant harm from the termination. She moved out on 11 April 2023 and had to live in cramped conditions with a daughter because she could not find another suitable tenancy. She suffered depression, could not spend time with her ill sister because of the time she needed to spend on finding somewhere else to live, and had to pull out of her final paper of her Horticulture course. 2 See letters from the tenant, the tenant’s children, a family member who is a Registered Nurse, and friends.
The issue for determination is: Did the landlord genuinely intend to sell the premises as claimed in the termination notice?

Did the landlord genuinely intend to sell the premises?

The tenant asserts the landlord never genuinely intended to sell the premises.
That assertion is supported by the fact that the premises were never sold and were put back up for rent within six months of the landlord’s notice. Legal principles
Under s 60AA of the Residential Tenancies Act 1986 (RTA), a landlord must not give a notice to terminate the tenancy knowing they are not entitled to do so.
Breaching this duty without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. 3
A notice given for genuine lawful reasons will not be unlawful.
Under s 51(2)(a) of the RTA: (2) A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (a) the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition...
The applicant having brought the claim must establish the claim to the civil law standard of proof, on the balance of probabilities. Discussion
Mr Gilfillan says that Ms Gao lived overseas for the majority of the tenancy, and he had power of attorney to deal with the house on her behalf. He became increasingly concerned about the premises poor returned by comparison to his own commercial properties. He says it was he who advised Ms Gao to sell the 3 See the Residential Tenancies Act 1986(RTA), s 60AA and Schedule 1A. premises. She agreed, and steps were taken to renovate the premises and sell them, including giving the tenant notice.
Mr Gilfillan says in summary, that the sale did not proceed because Ms Gao had to unexpectedly spend a considerable sum to replace the roof. Ms Gao had only limited fund to begin with, so the extent of the intended renovation was severely curtailed. A few months after giving the tenant notice, Ms Gao noticed that house prices were recovering, and started to consider the option of holding onto the premises after all.
The premises was put back on the rental market almost three months after the tenancy had ended. Happily for Ms Gao, she rented the premises for $700.00 per week, $160.00 per week more than before.
At the tenant’s request, the landlord’s property manager, Natalee Butcher, and a real estate agent, Karin Atwood, gave evidence under promise. They supported the landlord’s claim that the notice was given for genuine reasons at the time it was given.
The tenant questioned Karin Atwood about her email to the landlord dated 13 April 2023 which included the following comment: As discussed, your options are to sell or re-rent the property.
I do not consider that the comment “gives the lie” to the landlord’s assertion that she genuinely intended to sell the premises when she gave notice four months earlier. The fact that Ms Gao instructed Ms Atwood to give her an appraisal is consistent with an intention to sell the property. That it was an “option” to re-rent does not disprove Ms Gao’s intent in January. It is consistent with the landlord’s narrative that she changed her mind about selling the premises partly because the market improved.
The tenant also questioned Ms Atwood about her comment about needing “to wait for the full 90 days before selling”. Ms Atwood explained she mistakenly thought that the property was not permitted to be sold for 90 days. That confusion likely arose from the tenant having been given a 90-day notice on the basis the landlord intended to put them on the market within 90 days.
The tenant established in cross-examination of Ms Butcher that any maintenance issues the premises had were the landlord’s responsibility, not hers.
Ms Butcher also confirmed that the tenant had kept the premises reasonably clean and tidy, and she was a good tenant.
Both Ms Atwood and Ms Butcher remained firm in their view, that they believed the landlord genuinely wanted to sell the premises.
Their evidence also established that the tenant was in no way at fault for any problems the premises had. The landlord had no criticism of the tenant. Indeed, the landlord had no reason to get rid of the tenant because she reliably paid the rent and looked after the premises. She reported problems with the premises that needed repair but did not complain unduly complain.
The tenant was concerned that the landlord’s true objective was to put the rent up. However, the landlord could have put the rent up by simply giving the tenant a notice of rent increase.
Mr Gilfillan denied that the landlord endeavoured to tenant the premises earlier than the advertisement while the renovation work was being done. He believes the tenant misconstrued the landlord’s intention to intermittently stay in the house to do some of the renovation work herself.
The evidence at hearing strongly pointed to the landlord giving notice because she genuinely intended to sell the premises. While the landlord had anxieties about the state of the house and its value, the decision to give notice was based on objective business realities, unrelated to the tenant.
After the hearing, I have further considered the parties’ submissions and written material.
Importantly, the protagonists in the event – Ms Gao, Mr Gilfillan, Ms Butcher, and Ms Atwood – all gave evidence that consistently confirmed the landlord’s narrative of events. That version was not seriously contradicted by any other evidence.
Having considered all of the material, I find it likely that the reason given in the landlord’s termination notice was genuine. Conclusion
I do not find it proven that the landlord’s notice was given knowing they were not entitled to give the notice.
It follows, the Tribunal must dismiss the tenant’s claim. Non-publication
The tenant seeks an order for non-publication of her name and identifying details.
The Tribunal may, on its own initiative, having regard to the interests of the parties and to the public interest, order that the name or any identifying particulars of any witness or party not be published.
It is not averse to the landlord’s interests that the tenant’s name be suppressed. The public interest favours non-publication. The tenant brought this claim for sincere reasons. Tenants should not be deterred from bringing claims by fear of publication of their identifies in these circumstances.
The Tribunal orders non-publication as requested.

Tenancy Tribunal case 4627096 — Exemplary damages in Beach Haven, Auckland

At a glance

Tenancy Tribunal case 4627096 — Exemplary damages in Beach Haven, Auckland

At a glance

Claims & awards

Order

Reasons

Did the landlord genuinely intend to sell the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did the landlord genuinely intend to sell the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions