How much money was awarded in case 4631811?

Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4631811?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4631811?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9563613-Tenancy_Tribunal_Order.pdf.

How much money was awarded in case 4631811?

Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4631811?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4631811?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9563613-Tenancy_Tribunal_Order.pdf.

60B Kupe Street, Orakei, Auckland 1071 Tenancy Tribunal Case 4631811 — Exemplary damages

Q: What was Tenancy Tribunal case 4631811 about?

The tribunal order states: Knightley Properties Limited as agent for Thomas Gao must pay [The tenant/s] and

Reasons

Claims and awards in Tenancy Tribunal application 4631811 — net $3,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$3,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,520.44
Total payable by Landlord to Tenant	$3,520.44

Both parties attended the hearing.

The tenant claims that the landlord has breached their obligations under section 60AA Residential Tenancies Act 1986 (‘RTA’).

Under Section 60AA RTA 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 any of these obligations 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.

On 31 January 2023, the landlord issued a 63 days’ notice to the tenant on grounds that the owner of the premises (Thomas Gao) required the premises as the principal place of residence for at least 90 days for the owner or member of the owner’s family.

Kelvin Gao is the property manager who was acting for his father Thomas Gao, the owner of the premises.

Kelvin says that he had been instructed by Thomas to give notice to the tenant for family reasons.

Thomas confirmed that while he initially planned on having his wife move into the premises, neither him nor any of his family members moved into the premises within 90 days of the termination date as stated on the notice (7 April 2023) or the date the tenant actually vacated (26 March 2023).

I find the landlord has committed an unlawful act.

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.

The owner explained that his wife and him were having marital issues which led to his wife wishing to move out from their principal place of residence at 60A Kupe Street to 60B Kupe Street; hence his reason for instructing Kelvin to issue the 63 days’ notice.

The owner thought that as long as he kept the premises vacant for 90 days, it would be in order for him to relist the premises for rent which he did on 30 June 2023.

However, the provisions of section 50(1)(a) RTA only permits the landlord to terminate the periodic tenancy if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.

In giving the notice, the landlord must be satisfied that his wife was actually going to move into the premises within 90 days after the termination date, as the principal place of residence for at least 90 days.

The owner testified that he had always planned on re-letting the premises because of the huge financial strain caused by the vacant premises while he was still servicing the mortgage on the premises. If so, it must have dawned upon the owner that his wife would not have likely moved into the premises within 90 days after the termination date, and used the premises as her principal place of residence for at least 90 days, at the time he instructed Kelvin to give the 63 days’ notice under section 50(1)(a) RTA.

Consequently, I do not accept the owner’s explanation that he was misguided on the allowable reasons for termination of the periodic tenancy at all.

Even if the owner had been misguided on section 50(1)(a) RTA, Kelvin is a professional property manager who ought to have explained to his principal/owner on the mandatory requirements of section 50(1)(a) RTA.

It was clearly not in order for the landlord to have given the notice on 31 January 2023 to terminate the tenancy under those circumstances. Neither the owner nor the landlord have provided a reasonable excuse for issuing the notice of 31 January in the first place.

For those reasons, I consider that the landlord has issued a notice to terminate the tenancy knowing they are not entitled to do so.

Having regard to the landlord’s intent, the effect of the unlawful act on the tenant in having to vacate and look for another place to rent, the interests of the tenant, and the public interest in ensuring that landlord can and should only terminate tenancies based on valid grounds, I consider it just to award exemplary damages of $3,500.00 in favour of the tenant.

I also award the filing fee to the tenant.

Claims and awards in Tenancy Tribunal application 4631811 — net $3,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$3,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,520.44
Total payable by Landlord to Tenant	$3,520.44

Order

Knightley Properties Limited as agent for Thomas Gao must pay [The tenant/s] and [The tenant/s] $3,520.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The tenant claims that the landlord has breached their obligations under section 60AA Residential Tenancies Act 1986 (‘RTA’).
Under Section 60AA RTA 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 any of these obligations 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.
On 31 January 2023, the landlord issued a 63 days’ notice to the tenant on grounds that the owner of the premises (Thomas Gao) required the premises as the principal place of residence for at least 90 days for the owner or member of the owner’s family.
Kelvin Gao is the property manager who was acting for his father Thomas Gao, the owner of the premises.
Kelvin says that he had been instructed by Thomas to give notice to the tenant for family reasons.
Thomas confirmed that while he initially planned on having his wife move into the premises, neither him nor any of his family members moved into the premises within 90 days of the termination date as stated on the notice (7 April 2023) or the date the tenant actually vacated (26 March 2023).
I find the landlord has committed an unlawful act.
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.
The owner explained that his wife and him were having marital issues which led to his wife wishing to move out from their principal place of residence at 60A Kupe Street to 60B Kupe Street; hence his reason for instructing Kelvin to issue the 63 days’ notice.
The owner thought that as long as he kept the premises vacant for 90 days, it would be in order for him to relist the premises for rent which he did on 30 June 2023.
However, the provisions of section 50(1)(a) RTA only permits the landlord to terminate the periodic tenancy if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.
In giving the notice, the landlord must be satisfied that his wife was actually going to move into the premises within 90 days after the termination date, as the principal place of residence for at least 90 days.
The owner testified that he had always planned on re-letting the premises because of the huge financial strain caused by the vacant premises while he was still servicing the mortgage on the premises. If so, it must have dawned upon the owner that his wife would not have likely moved into the premises within 90 days after the termination date, and used the premises as her principal place of residence for at least 90 days, at the time he instructed Kelvin to give the 63 days’ notice under section 50(1)(a) RTA.
Consequently, I do not accept the owner’s explanation that he was misguided on the allowable reasons for termination of the periodic tenancy at all.
Even if the owner had been misguided on section 50(1)(a) RTA, Kelvin is a professional property manager who ought to have explained to his principal/owner on the mandatory requirements of section 50(1)(a) RTA.
It was clearly not in order for the landlord to have given the notice on 31 January 2023 to terminate the tenancy under those circumstances. Neither the owner nor the landlord have provided a reasonable excuse for issuing the notice of 31 January in the first place.
For those reasons, I consider that the landlord has issued a notice to terminate the tenancy knowing they are not entitled to do so.
Having regard to the landlord’s intent, the effect of the unlawful act on the tenant in having to vacate and look for another place to rent, the interests of the tenant, and the public interest in ensuring that landlord can and should only terminate tenancies based on valid grounds, I consider it just to award exemplary damages of $3,500.00 in favour of the tenant.
I also award the filing fee to the tenant.

Tenancy Tribunal case 4631811 — Exemplary damages at 60B Kupe Street, Orakei, Auckland 1071

At a glance

Tenancy Tribunal case 4631811 — Exemplary damages at 60B Kupe Street, Orakei, Auckland 1071

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions