What was Tenancy Tribunal case 4627267 about?

The tribunal order states: Although no application for suppression has been made in this case the Tribunal

How much money was awarded in case 4627267?

Property Damage: $6,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4627267?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4627267?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9355341-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4627267 about?

The tribunal order states: Although no application for suppression has been made in this case the Tribunal

How much money was awarded in case 4627267?

Property Damage: $6,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4627267?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4627267?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9355341-Tribunal_Order_Redacted.pdf.

19 Cherry Drive, Mosgiel, Mosgiel 9024 Tenancy Tribunal Case 4627267 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4627267 — net $6,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$6,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,520.44
Bond	$1,860.00
Total payable by Landlord to Tenant	$6,520.44

Order

Although no application for suppression has been made in this case the Tribunal orders suppression of the Tenant name and identifying details.
Property Brokers Limited (Otago/ Southland) must pay [The tenant/s] $6,520.44 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,860.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing, the landlord by telephone.
The tenancy commenced on 15/7/2019 with the landlord Rental Living Ltd as agent for Ciju and Deepthy Kallada.
Property Brokers Ltd subsequently merged with Rental Living Ltd and continued management of the property.
The tenancy ended on 11/6/2023.
The owners Ciju and Deepthy Kallada terminated their management contract with Property Brokers Ltd on 8/3/2023.
Unfortunately, the owners were not joined as parties to the application by the tenant.
However, I declined the request by Property Brokers Ltd at the hearing to add the owners because this would have meant an adjournment.
The tenant had travelled for some hours to attend the hearing in person.
The application was made on 11/7/2023 and Property Brokers Ltd could have asked for the owners to be joined when they became aware of the application.
Although the tenancy agreement disclosed the name of the owners it was signed unqualified by the agent.
Rental Living Ltd, a company now merged with Property Brokers Ltd, granted the tenancy to the tenant and Property Brokers Ltd continued to manage the property until their contract with the owners was terminated.
I consider Property Brokers Ltd is the landlord.
If Property Brokers Ltd have a dispute with the owners about liability for the amount awarded it must pursue this in another jurisdiction.
The Tenancy Tribunal only has jurisdiction between landlords and tenants.

Is the tenant entitled to a refund of his bond?

The tenant submitted that the landlord had claimed $907.39 from the bond for rent arrears and reimbursement of a plumbers account.
Although the landlord agreed a claim had been made against the bond when the claim was put into dispute the landlord did not file an application with Tenancy Services.
Section 22B RTA provides: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded in full to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.

Did the landlord breach their obligations?

The tenant submitted that at the beginning of the tenancy the house was not clean, had an odd smell and there was mould in many of the rooms.
Despite mentioning this to the landlord the tenant had to pay a cleaner to clean the property, including the stains on the carpet.
During the tenancy the tenant suggested that many maintenance issues were ignored by the landlord, including lack of curtains in the bedroom due to insufficient hooks, removal of a tree blown down in a storm, insecure garage door, broken front door lock, leaking kitchen tap and in particular a leaking toilet for two years.
The tenant submitted that he had to engage a plumber to fix the toilet and after it caused flooding to the house, he paid to have the carpets dried out.
In support of his claim the tenant provided photographs taken at the end of the tenancy.
The landlord provided the entry inspection report with photographs dated 9/7/2019.
The landlord suggested that because the tenant tended to do the work himself, such as the cleaning, tree removal and plumber this made re-imbursement difficult because of lack of receipts.
Further the landlord accepted that extensive renovation was needed in the bathroom after the flood and that this had been communicated to the owner.
Under section 45, a landlord must, among other matters, provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed unlawful acts by failing to provide the premises in a reasonably clean condition and failing to provide and maintain the premises in a reasonable state of repair.
The initial property inspection report supports the premises were not reasonably clean and tidy and were only in “fair” or at best “good” condition, with walls and doors needing cleaning and mould in bedrooms.
Moreover, both parties agree that after the flood from the leaking toilet the bathroom needed extensive renovation.

Was the notice to terminate invalid?

The tenant did not believe that the notice of 6/3/2023 to end the tenancy on 10/6/2023 so that substantial renovations could be undertaken, was valid.
The tenant submitted that two days after he left the property it was advertised for rent by Smart Homes Property Management Ltd at a weekly rent of $640.00.
Subsequently he discovered that the property had been tenanted at the increased rent without any work having been done.
The landlord agreed that substantial work needed to be undertaken at the premises and that the owner had been repeatedly told about the state of the property.
Further the landlord confirmed that the termination notice provided to the tenant had been signed by the owner.
Section 51 sets out when a periodic tenancy may be terminated.
Subsection (2)(f) provides that a landlord may terminate a periodic tenancy by giving at least 90 days notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner and (i) it would not be reasonably practicable for the tenant to remain in occupation while the work was undertaken and (ii) the work was to begin or material steps taken within 90 days after termination.
I find the notice of 6/3/2023 was invalid.
There is no persuasive evidence to support that any alterations, repairs, refurbishment, or repairs have been undertaken on the premises or material steps taken towards any such work since the end of the tenancy.
The fact that the premises have been re-let well within the 90 day period after termination supports there was no intention to undertake any work.
Under Section 60AA 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 of this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act by giving notice to the tenant to end the tenancy knowing they were not entitled to do so.

Should compensation and or exemplary damages be awarded?

No compensation is available to the tenant because he was unable to provide any documentation to support the $300.00 claimed for cleaning at the beginning of the tenancy, the $250.00 for drying out the carpet after the flood or any other suggested costs.
Further, the tenant agreed that he had been paid $631.89 for the plumbers account which ultimately he did not pay.
However, as I have found the landlord committed unlawful acts, I must consider the issue of exemplary damages.
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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
The decision also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
I consider a presumption can be drawn from the evidence that the landlord intentionally failed to provide the premises in a reasonably clean condition or provide and maintain the premises in a reasonable state of repair.
The initial property inspection report supports the poor state of the premises, as do the other issues raised by the tenant, including the leaking toilet.
Further the undisputed evidence that the tenant needed to undertake cleaning, including carpet cleaning at the beginning of the tenancy supports that the premises were not in a reasonably clean condition.
Moreover, the circumstances surrounding the issuing of the notice support that it was a deliberate cynical attempt to circumvent the provisions about terminating periodic tenancies which came into effect in February 2021.
Turning a ‘blind eye’ to legislative requirements is unacceptable when operating the business of renting premises.
The effect on the tenant has been significant as he felt compelled to remedy defects in his own time and at his expense.
In addition, he struggled to find alternative accommodation after being given notice and had to relocate to a town several hours away at considerable expense.
The public should be able to rely on landlords to comply with the legislation and when they do not the public is entitled to expect some censure.
I consider the various breaches, especially the invalid notice very serious and warrant a significant cumulative award to deter repeat behaviour.
I have set this at $6,500.00.
As [The applicant/s] has substantially succeeded with the claim I have awarded the filing fee.
Although the tenant did not ask for suppression, I consider it is reasonable to grant suppression because he largely succeeded with the claim.
No suppression is available to the landlord or owner of the premises.

Claims and awards in Tenancy Tribunal application 4627267 — net $6,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$6,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,520.44
Bond	$1,860.00
Total payable by Landlord to Tenant	$6,520.44

Order

Although no application for suppression has been made in this case the Tribunal orders suppression of the Tenant name and identifying details.
Property Brokers Limited (Otago/ Southland) must pay [The tenant/s] $6,520.44 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,860.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing, the landlord by telephone.
The tenancy commenced on 15/7/2019 with the landlord Rental Living Ltd as agent for Ciju and Deepthy Kallada.
Property Brokers Ltd subsequently merged with Rental Living Ltd and continued management of the property.
The tenancy ended on 11/6/2023.
The owners Ciju and Deepthy Kallada terminated their management contract with Property Brokers Ltd on 8/3/2023.
Unfortunately, the owners were not joined as parties to the application by the tenant.
However, I declined the request by Property Brokers Ltd at the hearing to add the owners because this would have meant an adjournment.
The tenant had travelled for some hours to attend the hearing in person.
The application was made on 11/7/2023 and Property Brokers Ltd could have asked for the owners to be joined when they became aware of the application.
Although the tenancy agreement disclosed the name of the owners it was signed unqualified by the agent.
Rental Living Ltd, a company now merged with Property Brokers Ltd, granted the tenancy to the tenant and Property Brokers Ltd continued to manage the property until their contract with the owners was terminated.
I consider Property Brokers Ltd is the landlord.
If Property Brokers Ltd have a dispute with the owners about liability for the amount awarded it must pursue this in another jurisdiction.
The Tenancy Tribunal only has jurisdiction between landlords and tenants.

Is the tenant entitled to a refund of his bond?

The tenant submitted that the landlord had claimed $907.39 from the bond for rent arrears and reimbursement of a plumbers account.
Although the landlord agreed a claim had been made against the bond when the claim was put into dispute the landlord did not file an application with Tenancy Services.
Section 22B RTA provides: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded in full to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.

Did the landlord breach their obligations?

The tenant submitted that at the beginning of the tenancy the house was not clean, had an odd smell and there was mould in many of the rooms.
Despite mentioning this to the landlord the tenant had to pay a cleaner to clean the property, including the stains on the carpet.
During the tenancy the tenant suggested that many maintenance issues were ignored by the landlord, including lack of curtains in the bedroom due to insufficient hooks, removal of a tree blown down in a storm, insecure garage door, broken front door lock, leaking kitchen tap and in particular a leaking toilet for two years.
The tenant submitted that he had to engage a plumber to fix the toilet and after it caused flooding to the house, he paid to have the carpets dried out.
In support of his claim the tenant provided photographs taken at the end of the tenancy.
The landlord provided the entry inspection report with photographs dated 9/7/2019.
The landlord suggested that because the tenant tended to do the work himself, such as the cleaning, tree removal and plumber this made re-imbursement difficult because of lack of receipts.
Further the landlord accepted that extensive renovation was needed in the bathroom after the flood and that this had been communicated to the owner.
Under section 45, a landlord must, among other matters, provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed unlawful acts by failing to provide the premises in a reasonably clean condition and failing to provide and maintain the premises in a reasonable state of repair.
The initial property inspection report supports the premises were not reasonably clean and tidy and were only in “fair” or at best “good” condition, with walls and doors needing cleaning and mould in bedrooms.
Moreover, both parties agree that after the flood from the leaking toilet the bathroom needed extensive renovation.

Was the notice to terminate invalid?

The tenant did not believe that the notice of 6/3/2023 to end the tenancy on 10/6/2023 so that substantial renovations could be undertaken, was valid.
The tenant submitted that two days after he left the property it was advertised for rent by Smart Homes Property Management Ltd at a weekly rent of $640.00.
Subsequently he discovered that the property had been tenanted at the increased rent without any work having been done.
The landlord agreed that substantial work needed to be undertaken at the premises and that the owner had been repeatedly told about the state of the property.
Further the landlord confirmed that the termination notice provided to the tenant had been signed by the owner.
Section 51 sets out when a periodic tenancy may be terminated.
Subsection (2)(f) provides that a landlord may terminate a periodic tenancy by giving at least 90 days notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner and (i) it would not be reasonably practicable for the tenant to remain in occupation while the work was undertaken and (ii) the work was to begin or material steps taken within 90 days after termination.
I find the notice of 6/3/2023 was invalid.
There is no persuasive evidence to support that any alterations, repairs, refurbishment, or repairs have been undertaken on the premises or material steps taken towards any such work since the end of the tenancy.
The fact that the premises have been re-let well within the 90 day period after termination supports there was no intention to undertake any work.
Under Section 60AA 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 of this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act by giving notice to the tenant to end the tenancy knowing they were not entitled to do so.

Should compensation and or exemplary damages be awarded?

No compensation is available to the tenant because he was unable to provide any documentation to support the $300.00 claimed for cleaning at the beginning of the tenancy, the $250.00 for drying out the carpet after the flood or any other suggested costs.
Further, the tenant agreed that he had been paid $631.89 for the plumbers account which ultimately he did not pay.
However, as I have found the landlord committed unlawful acts, I must consider the issue of exemplary damages.
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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
The decision also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
I consider a presumption can be drawn from the evidence that the landlord intentionally failed to provide the premises in a reasonably clean condition or provide and maintain the premises in a reasonable state of repair.
The initial property inspection report supports the poor state of the premises, as do the other issues raised by the tenant, including the leaking toilet.
Further the undisputed evidence that the tenant needed to undertake cleaning, including carpet cleaning at the beginning of the tenancy supports that the premises were not in a reasonably clean condition.
Moreover, the circumstances surrounding the issuing of the notice support that it was a deliberate cynical attempt to circumvent the provisions about terminating periodic tenancies which came into effect in February 2021.
Turning a ‘blind eye’ to legislative requirements is unacceptable when operating the business of renting premises.
The effect on the tenant has been significant as he felt compelled to remedy defects in his own time and at his expense.
In addition, he struggled to find alternative accommodation after being given notice and had to relocate to a town several hours away at considerable expense.
The public should be able to rely on landlords to comply with the legislation and when they do not the public is entitled to expect some censure.
I consider the various breaches, especially the invalid notice very serious and warrant a significant cumulative award to deter repeat behaviour.
I have set this at $6,500.00.
As [The applicant/s] has substantially succeeded with the claim I have awarded the filing fee.
Although the tenant did not ask for suppression, I consider it is reasonable to grant suppression because he largely succeeded with the claim.
No suppression is available to the landlord or owner of the premises.

Tenancy Tribunal case 4627267 — Exemplary damages at 19 Cherry Drive, Mosgiel, Mosgiel 9024

At a glance

Tenancy Tribunal case 4627267 — Exemplary damages at 19 Cherry Drive, Mosgiel, Mosgiel 9024

At a glance

Award balance

Claims & awards

Order

Reasons

Is the tenant entitled to a refund of his bond?

Did the landlord breach their obligations?

Was the notice to terminate invalid?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the tenant entitled to a refund of his bond?

Did the landlord breach their obligations?

Was the notice to terminate invalid?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions