What was Tenancy Tribunal case 4656310 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 4656310?

Property Damage: $1,000.00 awarded to tenant; Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $875.00 awarded to landlord

What type of tenancy dispute was case 4656310?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4656310?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10277569-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4656310 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 4656310?

Property Damage: $1,000.00 awarded to tenant; Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $875.00 awarded to landlord

What type of tenancy dispute was case 4656310?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4656310?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10277569-Tribunal_Order_Redacted.pdf.

12 Phyllis Street, Mount Albert, Auckland 1025 Tenancy Tribunal Case 4656310 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4656310 — net $3,645.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$875.00		Rent arrears
Exemplary damages: unlawful termination		$3,500.00	unlawful termination
Exemplary damages: failure to maintain		$1,000.00	failure to maintain
Filing fee		$20.44	Filing fee
Total award	$875.00	$4,520.44
Net award		$3,645.44
Total payable by Landlord to Tenant		$3,645.44

Claims and awards in Tenancy Tribunal application 4656310 — net $3,645.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$875.00		Rent arrears
Exemplary damages: unlawful termination		$3,500.00	unlawful termination
Exemplary damages: failure to maintain		$1,000.00	failure to maintain
Filing fee		$20.44	Filing fee
Total award	$875.00	$4,520.44
Net award		$3,645.44
Total payable by Landlord to Tenant		$3,645.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
This tenancy commenced on 7 July 2023 and ended on 31 August 2023.
Quan (Marshall) Shu must pay [The tenant/s] $3,645.44 immediately, made up as follows:
The Bond Centre is to pay the bond of $3,500.00 ([Bond number suppressed]) to [The tenant/s] immediately.
The remaining applications are dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears and has provided rent records which he says prove the amount owing.
The tenant disputes the rent arrears and seeks an order declaring that the tenancy commenced on 7 July 2023, together with compensation and/or exemplary damages for unlawful termination of the tenancy, failure to maintain the premises, inaccurate tenancy records, breach of quiet enjoyment and harassment, failure to comply with the HHS, retaliatory notice, and discrimination.

When did the tenancy commence?

The landlord’s position is the tenancy commenced on 21 June 2023, and that is the date in the tenancy agreement. The agreement was signed on 1 July 2023, however.
The tenant accepts that is the date in the tenancy agreement, however, submits that the tenancy actually commenced on 7 July 2023, and they sought to have these start date varied to 7 July 2023 to accord with their move in date.
The landlord gave evidence that the tenant moved into the property on 21 June 2023, being the date, they first viewed the property. The landlord stated he gave them keys at the property inspection and the tenancy commenced immediately full stop he says this is the reason the formal tenancy agreement was signed on one July 2023 despite having a start date of 21 June 2023.
the tenant states she moved into the property on 7 July 2023 and that was the agreed start date of the tenancy. The tenant states she had a first inspection of the property on three July 2023, and she provided text messages between her and the landlord which corroborate this position full stop for the comma the tenant provided a previous tenancy tribunal decision for this property indicating that the previous tenancy ended on 26 June 2023 full stop the landlord claimed and was allowed at rent arrears up to and including 26 June 2023.
In addition, the tenant notes that there was a variety of repairs required at the start of the tenancy and these were not completed until the day after she moved into the property (although some were never completed).
In response, the landlord states that the previous tenants moved out well prior to 20 June 2023 and the claiming of rent was a quotes error end quotes in that application. The landlord’s position is that the property was repaired and completely ready for move in prior to 21 June 2023. This was despite invoices from the handyman who undertook that work indicating that the work was completed on or around one July 2023.
Having seen the evidence and heard the witnesses, I am satisfied that the tenancy commenced on 7 July 2023, that is the date the tenants moved in, and I am satisfied that they are only liable for rent from that day.

How much is owed for Rent?

The landlord claims $7000 in rent arrears. He provided a rent summary which he said confirmed the rent arrears outstanding at the end of the tenancy.
That rent summary shows rent accumulating from 21 June 2023, which is not surprising given the landlords position on the date the tenancy commenced.
The landlord’s read summary is not consistent with letters written by Work and Income New Zealand indicating more rent payments were made than are reflected in the rent summary.
The tenant submits that less rent is owing then set out in the rent summary, taking into account the later start date of the tenancy and also the rent paid directly to the landlord by Work and Income New Zealand.
Having carefully considered the material provided, I accept that Work and Income New Zealand made more payments than reflected in the landlord’s rent summary, and clearly, given my findings in relation to the start date of the tenancy, rent is not due for the period 21 June 2023 to 6 July 2023. On that basis, the only rent outstanding at the end of the tenancy is the $875 awarded. Exemplary damages generally
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award. Failure to Maintain
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must 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.
The tenant alleges the landlord failed to repair a broken window and an overflowing/leaking gutter for the duration of the tenancy. the tenant notified the landlord of these issues on 21 July 2023 by text message.
The landlord acknowledges that he knew about the issues and says that he instructed his contractor to undertake repairs to the window. He asked the contractor to return when the tenants told him the first repair failed, and that he also instructed the contractor to repair the gutters. There was no evidence of this available to me.
The tenants agree that the contractor came once to repair the window, but the repair did not work, and they were told to push the window closed from the outside. The gutter was never repaired.
I accept the tenant’s evidence on these points. Having heard both parties, I consider the tenant was credible, reliable and forthright in her evidence. She did not appear to be exaggerating, and she was prepared to make appropriate concessions. The landlord was less forthright in his evidence, and I viewed his evidence on several points with scepticism, particularly where the oral evidence was directly contradicted by other material.
Accordingly, I find the landlord has committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure to act was that the tenant has been subject to living in a damp house with mould and no ability to properly ventilate it for the duration of the tenancy. She was required to seek maintenance repeatedly and without proper response.
I consider the landlord must have acted intentionally in failing to repair this damage. While he initially responded by sending a contractor, when made aware that the work was not properly completed, he took no further steps.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties in a warm, dry and safe condition.
I consider that an award of exemplary damages is appropriate in this case, and I award $1,000.00. Unlawful termination of tenancy
The tenant alleges the landlord has harassed her, that the tenancy agreement contained in accurate information (the start date) and that the landlord has unlawfully terminated the tenancy in retaliation for her seeking maintenance of the property.
I have given consideration to each of these claims, but I consider they are better grouped under the heading of unlawful termination. The harassment claim arises out of the repeated calls and messages from the landlord about the rent arrears he alleges, and the rent arrears allegations arises from the incorrect start date in the tenancy agreement. Whether the notice to terminate was retaliatory or unlawful is essentially two options for the same conduct, so they should be considered together.
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 any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord accepts that he pushed to terminate the tenancy for rent arrears. He endeavoured to do this by “agreement”. Although the tenant alleges that this was done via bullying messages, such as those stating that “if you don’t move out, you will be kicked out” and sought to terminate the tenancy on a days’ notice. This was despite the tenancy being a fixed term, and not able to be ended on notice.
In any event, a landlord cannot terminate a tenancy on notice for rent arrears, an application and order of the Tribunal is required. This is particularly relevant in the present case, where careful consideration of all matters showed the tenant owed one week of rent, and that rent arrears was not the subject of a 14-day notice. Accordingly, if an application was made to the Tribunal for termination, it is likely that the application would have been dismissed.
I consider that the landlord’s actions were unlawful and were significantly aggravated by the manner in which he conducted himself and the way he treated the tenant. The tenant was vulnerable, having come from emergency housing, and with 5 children in her care. Housing is a vital aspect of the tenant’s life and the thought of being “kicked out” caused significant distress. This was compounded by the fact that she was making full and proper efforts to ensure that her rent was paid via Work and Income New Zealand, and that the landlord was not responding to legitimate requests for maintenance.
I am further concerned by the manner in which the landlord completed the tenancy agreement, using a start date which pre-dated the end of the previous tenancy, and which was weeks prior to the tenant even viewing the property. Having reviewed the text messages, I consider the landlord was aware of the tenants’ circumstances and used that to apply pressure to her to sign the agreement despite the incorrect start date. That was then used as leverage for the alleged rent arrears. I consider this behaviour reprehensible.
I find the landlord has committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s actions was the early termination of this tenancy on very short notice and without valid reason. The tenant and her family were uprooted and required to move under urgency. This was hugely stressful.
I consider the landlord must have acted intentionally. He knowingly entered the incorrect date on the tenancy agreement, then sought rent arrears not owed to him. Rather than seek termination through the Tribunal, the landlord resorted to bullying tactics to have the tenant agree to move out. I consider this behaviour significantly aggravates the landlord’s actions.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, in maintaining accurate and transparent records, and using the appropriate mechanisms to enforce rent payments if there is a valid claim. It is for the Tribunal to terminate tenancies for arrears, not landlords.
I consider that an award of exemplary damages is appropriate in this case. As noted, I consider the landlord’s actions were egregious, and the award is increased to reflect that, I award $3,500.00. HHS – draught stopping and Moisture.
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS draught stopping standard and the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
In this case, the tenancy was terminated prior to the compliance dates for the HHS.
Accordingly, this portion of the application is dismissed. Discrimination
[The tenant/s] claims that the landlord discriminated against them.
A landlord must not discriminate against a tenant in relation to the grant, renewal, variation or termination of a tenancy, in contravention of the Human Rights Act 1999. See sections 12(1) and 109(3) Residential Tenancies Act 1986.
Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 12(1) and Schedule 1A Residential Tenancies Act 1986.
The tenant alleges that the landlord’s actions, as set out, are evidence of discrimination against her, likely on the basis of employment and family status. Having carefully considered the evidence of the landlord’s conduct as a whole, I consider this conduct is not motivated by unlawful discrimination, but rather by the landlord’s interpretation of his rights as a landlord, which, as I have determined above, are not entirely in line with the RTA.
This portion of the claim is dismissed. Suppression
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
The tenant sought suppression of her name. As she has been substantially successful in her claim she is entitled to suppression.
In the present case, the landlord was not wholly or substantially successful.
I have considered if I should grant a name suppression order for the landlord having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the landlord’s name and identifying details outweigh the interest of the open justice reporting principle.
In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the landlord and the public interest, the public interest outweighs the landlord’s interests.
Accordingly, no order is made for suppression of the landlord’s name and identifying details. Filing fee
Because [The tenant/s] have substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4656310 — Exemplary damages at 12 Phyllis Street, Mount Albert, Auckland 1025

At a glance

Tenancy Tribunal case 4656310 — Exemplary damages at 12 Phyllis Street, Mount Albert, Auckland 1025

At a glance

Award balance

Claims & awards

Order

Reasons

When did the tenancy commence?

How much is owed for Rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

When did the tenancy commence?

How much is owed for Rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions