Published tribunal order
Tenancy Tribunal case 4654469 — Exemplary damages at 1 Ardee Close, East Tamaki, Auckland 2016
Decided 8 Feb 2024 · Published 8 Feb 2024 · Application 4654469
- Exemplary damages
Party names are redacted in the official published order.
Order
- Par Excellence Properties Limited must pay [The tenant/s] $4,570.44 immediately, made up as follows: DescriptionTenant Rent overpaid$810.00 Bond$3,240.00 Exemplary damages: failure to lodge the bond$500.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$4,570.44
Reasons
- Only the tenants attended the hearing.
- There has been some delay in the issuing of this decision as I had understood the tenants wished to file material in support of their claim for additional overpaid rent. That material has not been received, nor was I advised that this claim was being abandoned. When an enquiry was received about the issuing of the decision, I closed the hearing and have issued this decision on the material available to me.
- The tenant has applied for refund of the bond. The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services.
- Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
- As the bond has not been lodged with the Bond Centre, the bond must be refunded by the landlord directly. Overpaid rent
- While this was originally a fixed term tenancy, due to end in 2023, the parties agreed to early termination as there was a major plumbing issue which required remediation, and it was not practicable for that to happen while the house was occupied.
- The tenancy terminated on 24 November 2022.
- The tenants endeavoured to stop their rent re-direction, however an additional payment was made on 1 December 2022. That is to be refunded to the tenants. Failure to Lodge bond
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The tenant’s evidence is that they received no confirmation of Bond Lodgement from the Bond Centre, as they expected. A check of the Bond data for this property confirms that no bond was lodged for this property. 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.
- I consider that the failure to lodge the bond must have been an intentional act. The landlord is a property management company, and I consider they should be aware of the obligations under the Act. There was no attendance at the hearing by the landlord nor an explanation for the failure.
- The effect of that the breach is that the tenants’ have not had benefitted from the security of having the bond held in trust for them. A bond remains the tenant’s property for the duration of the tenancy, so the tenant is entitled to have that interest protected. On this occasion it remained in the landlord’s possession, and they had the use of it.
- I further consider that there is a public interest in ensuring that tenant’s money is protected through use of the Bond Centre for the duration of tenancies. A failure to lodge the bond is a serious breach because it undermines the legislative arrangement for the management of residential tenancies.
- Accordingly, I think an award of exemplary damages for the landlord’s failure on this occasion is appropriate, and I award $500.00. Filing Fee
- Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee.