What was Tenancy Tribunal case 4656284 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4656284?

Property Damage: $400.00 awarded to tenant

What type of tenancy dispute was case 4656284?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4656284?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9542962-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4656284 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4656284?

Property Damage: $400.00 awarded to tenant

What type of tenancy dispute was case 4656284?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4656284?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9542962-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4656284 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4656284 — net $400.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$400.00	at the lower end of the scale to be appropriate. The landlord is ordered to pay $400.00 to the tenant in exemplary damages.
Net award	$400.00
Total payable by Landlord to Tenant	$400.00

Claims and awards in Tenancy Tribunal application 4656284 — net $400.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$400.00	at the lower end of the scale to be appropriate. The landlord is ordered to pay $400.00 to the tenant in exemplary damages.
Net award	$400.00
Total payable by Landlord to Tenant	$400.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
[The landlord/s] must pay Rodney Philip Hide and Louise Marion Hide $400.00 immediately.
All other applications are dismissed.

Reasons

Both parties attended the hearing on 12 October 2023.
The tenanted premises are at [Tenancy address suppressed] (“the premises”).
The tenancy commenced on 2 October 2020 and ended on 16 September 2023.
The landlord described the premises as being part of a 22-unit manged apartment complex. Half of the units in the complex are managed by the landlord in a short term letting pool, as short term visitor accommodation. General Law
The party bringing the claim is required to prove their claim to the civil standard called the “balance of probabilities.” The point where I accept that it is more likely than not that their version of events is correct. In crude mathematical terms, this might be described as meaning that the party whose claim has a probability threshold of 51% will meet the standard of proof. If they only reach 50% or less, then as a matter of law their claim must fail.
In this matter, the onus or job of proving the claims fall on the tenant.
Just because I may find for one party or the other on a particular issue, does not necessarily mean that the unsuccessful party is wrong. It merely means that on the evidence presented, I was not sufficiently certain to make an order.
The Tribunal is not required to set out all of the evidence proffered by the parties at the hearing, but they can be assured that it has been taken into account in reaching this decision. Claims
The tenant claims are as follows; • The tenant seeks a declaration from the Tribunal that the notice of termination of the tenancy, served by the landlord on the tenant and dated 3 August 2023 is invalid. • That the deposit paid by the tenant to the landlord amounts to a letting fee (see s.17A Residential Tenancies Act 1986 (“RTA”)). • The landlord has failed to provide the tenant with a receipt for a bond payment (see s.19 RTA). • The tenant applied for exemplary damages where available. Facts
The essential facts to this matter are not in dispute.
The landlords own the management rights to the apartment complex where the premises are situated. The landlords also own the particular unit rented by the tenants.
The landlords agreed that they had in the past lived in the premises for approximately 8 years. The premises were then rented to a tenant for 2 years. The next tenants in time were Rodney Hide and Louise Hide. Their tenancy commenced on 2 October 2020.
The premises have never, during the landlords’ ownership, been let for short term visitor accommodation.
The parties entered into a tenancy agreement dated 24 September 2020.
The relevant parts of that tenancy agreement provide; “...this agreement is subject to the provisions of the residential tenancy act (sic). Minimum 3 months -2 weeks notice required from both parties thereafter. “Rent is to be paid weekly/ fortnightly (cross out one) in advance starting from the commencement date of this lease and stopping 2 weeks prior to departure (the deposit) ... Deposit:Two weeks rent in advance plus Exit Clean ($280.00) to be paid on acceptance of the terms of this agreement. TOTAL = $1,580.00... On your departure it would be appreciated if the apartment could be left in an orderly & tidy manner. Extra cleaning charges including carpet cleaning may be charged on...”
The landlord served a notice to terminate the tenancy on the tenant. That notice is dated 3 August 2023. The notice records that the last day of the tenancy was to be 3 November 2023. The notice states that it is given as the premises are to be changed to commercial premises for at least 90 days by the owner.
Section 51 (2)(e) RTA provides that a landlord may give a tenant 90 days’ notice to terminate a tenancy where the premises are to be converted into commercial premises for at least 90 days by the landlord or owner. Key Money
Rodney Philip Hide and Louise Marion Hide claims the landlords’ requirement for the pre-payment of exit cleaning amounts to a request for key money.
A landlord cannot, without the Tribunal’s consent, require a tenant to pay any money other than rent or bond for the grant, renewal, variation or assignment of a tenancy agreement. See section 17(1) Residential Tenancies Act 1986.
The relevant subsection of the definition of a “letting fee” in the RTA is: “Letting fee- (a) Means any fee or charge (however described) in respect of services rendered by the letting agent or any other person that relate to- (i)The grant, continuance, extension, variation, or renewal of any tenancy agreement: or...”
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 17(3) and Schedule 1A Residential Tenancies Act 1986.
The landlord said in evidence, that the exit clean money was specifically to cover some of the cleaning costs upon the tenants’ departure. I do not consider that the cleaning charge could be said to be a fee or charge for the “grant, continuance, variation or renewal of the tenancy agreement” as required by s.17 RTA. The application is accordingly dismissed. Failure to provide a receipt for the bond
The tenancy agreement required the tenant to pay a deposit equivalent to 2 weeks rent as confirmation that the tenant would enter into the tenancy arrangement. The deposit was to be paid by the tenant on acceptance of the terms of the tenancy agreement and is a separate and distinct payment from the rent required to be paid in advance by the tenant.
The landlord said that the tenancy agreement provided that the deposit would be used to cover the last 2 weeks of rent at the end of the tenancy. The tenants confirmed that they were not required to pay the last 2 weeks rent at the end of the tenancy.
The deposit payment in this matter appears to bear all the hallmarks of a bond or security payment. A bond is generally paid by a tenant at the commencement of a tenancy and is held by the bond centre. At the end of the tenancy, the bond is returned to the tenant, or the bond is paid in whole or in part to the landlord to cover breaches of the tenancy agreement or the RTA by the tenant.
The RTA defines a bond as being “...any sum of money payable or paid under a tenancy agreement as security for the observance and performance of the tenant’s obligations under the agreement and this Act; but does not include any sum payable or paid by way of rent.”
The landlord argues that the payment was for rent, being the final 2 weeks rent of the tenancy whenever that might have been, and accordingly does not fall within the definition of a bond.
I consider that the deposit was a bond as it; • Was a sum payable under the terms of the tenancy agreement; and • Was a deposit held as a security for the performance of the tenant obligation; and • Could not have been a payment for rent at the time it was received, as suggested by the landlord, as the rental payment it was to be security for, did not become due and owing to the landlord until the end of the tenancy.
Having found that the deposit payment was a bond, did the landlord comply with the RTA requirements in relation to that payment?
Section 19 RTA sets out the landlord obligations on receipt of a bond payment. It requires amongst other things, that the landlord provide the payer with a written receipt.
The tenant claims that they did not receive a written receipt for the payment. No evidence was presented by the landlord to the contrary. I find that no receipt was issued by the landlord.
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 RTA.
The “deposit” has been used by the landlord for the last 2 weeks rent of the tenancy and so the tenant has essentially had the deposit funds returned to them.
I accept that no receipt for the bond was provided to the tenant by the landlord. I find that 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 requirement of intention is not about whether the party was aware they were breaching the RTA. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was that they did or did not do (Parton v Fifita TT 1815/00. DC Auckland, 1/5/2001).
I consider that the failure to provide a receipt was intentional. Having reached that finding, I must then consider the effect of the unlawful act on both this tenant and tenants generally.
The tenant did not direct the Tribunal to any stress or suffering that may have resulted due to the failure to receive a receipt. There is certainly public interest in landlord’s providing receipts, so that there can be no question as to whether a receipt was paid. Taking those factors into account, I consider an award of exemplary damages at the lower end of the scale to be appropriate. The landlord is ordered to pay $400.00 to the tenant in exemplary damages. Declaration as to valid notice of termination.
I have left consideration of this matter to the end of this decision for reasons that will become apparent.
The tenant seeks a declaration that the notice of termination issued by the landlord and dated 3 August 2023 is invalid.
The Tribunal has the power to make declarations under s.78(1)(a) RTA as to the rights and obligations of the parties and whether proper notice has been given.
During the course of the hearing, I was advised by the tenant that they had in fact left the premises on 16 September 2023 and that there was no current tenancy.
Does the Tribunal have jurisdiction to hear a dispute between a former tenant and a former landlord? Is the issue entirely moot?
The issue of mootness was considered in the High Court in Body Corporate 375933 v Tenancy Tribunal and Wellington Waterfront Luxury Apartment Limited (2017) NZHC 1619 Court held that “The Court’s prime responsibility is to determine live controversies between citizens and to develop the law of New Zealand in that context....Thus because an actual controversy must exist at all stages of the proceedings a case is moot when the issues presented are no longer live.”
The Court further held that ” ...the Tenancy Tribunal does not have jurisdiction to hear a moot case.”
The tenancy has ended. The making of a declaration of the type sought by the tenant will make no difference to the parties for that very reason. There is no utility in progressing the claim given the subsequent end to the tenancy. Even if a declaration were made in favour of the tenant, nothing would change. The tenancy would still be ended. I record that no application was made by the tenant pursuant to s.60AA RTA, which to succeed, would require proof that the landlord knew they were not entitled to terminate the tenancy.
The tenant claim is moot and the Tribunal has no jurisdiction to hear it.
Both parties applied for name suppression. Suppression may be granted where a party has been wholly or substantially successful. In this matter, neither party has been wholly successful. The tenant has not been successful in obtaining a declaration as to the validity of the notice nor in it’s claim relating to the cleaning charge. I do not consider that the tenant has been substantially successful and the tenant application for suppression is accordingly dismissed. The landlord has been substantially successful and suppression of the landlord details is ordered.

Tenancy Tribunal case 4656284 — Exemplary damages

At a glance

Tenancy Tribunal case 4656284 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions