Published tribunal order
Tenancy Tribunal case 4678570 — Exemplary damages at 35 Panorama Road, Mount Wellington, Auckland 1060
Decided 24 Oct 2023 · Published 24 Oct 2023 · Application 4678570
- Exemplary damages
Party names are redacted in the official published order.
Reasons
- The tenant attended the hearing. The landlord did not.
- The landlord is Seed Holding Ltd. Its sole director and shareholder is Nicholas Pieter Miers Hoogwerf.
- Seed Holding Ltd’s NZBN is 9429050570751 and its company number on the Companies Office register is 8372407.
- I tried to contact the landlord 3 times on the mobile number provided on the tenancy agreement but got his voice mail each time.
- I am satisfied that the landlord had received proper notice of the hearing time, date and place and chose not to attend.
- The tenant has applied for refund of the bond, refund of the filing fee, exemplary damages for the bond not being lodged with the bond centre and exemplary damages for not being provided with a receipt for the two weeks rent she paid in advance.
- At the hearing, the tenant stated that: a. She saw the listing on marketplace and contacted the landlord via text to the number provided to register her interest in renting the property; b. The landlord was interested in who was paying the bond and the tenant informed him that she would make an application to the Ministry of Social Development (“MSD”) to get Work and Income (“WINZ”) to cover the bond and the two weeks rent in advance; c. The landlord told the tenant she could not view the premises for rent until the bond and the two weeks rent in advance had been paid; d. She was given a bond in advance grant for $2,600.00 by WINZ on 2 September 2023 and has been paying this grant back at $25.00 per week since that date; e. She was also given a rent in advance grant for $1,300.00 by WINZ on 2 September 2023 and has been paying this grant back at $12.50 per week since that date; f. On 2 September 2023, she text the landlord to inform him the bond and rent in advance had been paid into his account by WINZ. He tod her that he needed to sort a few things out and to clear some of his things out of the premises and he would be in touch with a move in date shortly; g. She was never given access to the premises at anytime and was never able to move in and commence her tenancy; h. From 2 September 2023, she could not reach the landlord by phone or text, so she went to the premises to see if she could speak with him. She was greeted by the actual tenants, who informed her that Seed Holdings Ltd did not own the property and that they had a number of people come to the property with a similar story that the landlord, Nicholas Pieter Miers- Hoogwerf, as sole director for Seed Holdings Ltd, had done this to a number of other persons that all told the same story to them. The tenant learned there is a pattern to Mr Miers-Hoogwerf’s practices. He targets those receiving WINZ support, gets them to obtain a WINZ grant for the bond and rent in advance without viewing the premises, has no legal right to rent out the premises, ghosts them after receiving the monies from WINZ and leaves the tenant’s to repay the debt to WINZ without being able to rent the premises they signed the rental agreement for.
- In addition, the tenant has provided a decision from the Real Estate Agents Disciplinary Tribunal [2023] NZREADT 025/2022 where it was upheld that the sole director and shareholder of Seed Holdings Ltd was guilty of misconduct and disgraceful conduct when he obtained a pecuniary gain by deception when he forged valuation reports for a property he contracted to purchase. This decision was published and is readily accessible to the public. On the evidence provided, it appears Seed Holdings Ltd’s sole director and shareholder, Mr Miers-Hoggwerf, has a disturbing track record of obtaining pecuniary gain by misleading and deceptive conduct. The tenant is another unwitting victim. Refund of bond money paid and exemplary damages
- The tenant has checked with Tenancy Services and the landlord never lodged the bond he received with the Bond Centre, let alone within the 23 days statutory timeframe prescribed. See section 19(1) Residential Tenancies Act 1986. The tenant has applied to have the bond refunded in full.
- 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 I must refund the bond in full to the tenant.
- Breaching the landlord’s obligation to lodge the bond, within 23 days of receiving it, 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 landlord was paid $2,600.00 bond money by WINZ on 2 September 2023 and the landlord has failed to lodge the bond with tenancy Services Bond Centre within the required timeframe. I find they have committed an unlawful act.
- The Tribunal has been provided evidence that shows the landlord has been before the Tribunal earlier this year for, among other things, failing to lodge the bond for another property its director/shareholder purchased at 43 Moa Road, Point Chevalier. Refer to file numbers [2023] NZTT 4371662 and 4366660. Therefore, the landlord’s agent is aware of the legal requirement to do so and intentionally did not lodge the tenant’s bond with the Bond Centre.
- 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 am satisfied that the landlord committed the unlawful act intentionally, and that, having regard to the evidence presented that— (a) the landlord deliberately misled and deceived the tenant, who he knew was a WINZ beneficiary, with intent of committing the unlawful act so that he could obtain a pecuniary gain from his deception that she would have to pursue in the Tribunal at her cost; (b) the effect of the unlawful act on the tenant has been significant as she has been paying the bond back in instalments for a home, she has not been able to access and for which she has been unable to gain the benefits outlined in the tenancy agreement she signed on 20 July 2023; (c) the interests of the tenant against whom the unlawful act was committed will be benefited from the granting of the exemplary damages sought; and (d) the public interest is served as Mr Nicholas Pieter Miers-Hoogwert has been obtaining the same pecuniary gains from other tenants from whom he has taken bond money but failed to lodge it so the tenants have difficulty in recovering the monies paid and his track record in obtaining other such pecuniary gains by deception.
- For all these reasons outlined in paragraph 14 above, I find it to be just to require the landlord to pay a sum in the nature of exemplary damages of $1,000.00 to the tenant. Refund of two weeks rent paid in advance and exemplary damages for non receipt
- For the reasons outlined in paragraph 7 above, I find that the landlord must repay to the tenant, the two weeks rent in advance it obtained by Mr Nicholas Miers-Hoogwerf’s deception. He deliberately deceived and misled the tenant when he held himself out as the sole director and shareholder of a company, he stated owned the premises when he did not have any legal right to rent the premises out. He knowingly and unlawfully entered into a tenancy agreement with the tenant to rent at $650 per week and took money from WINZ as part of an elaborate fraud.
- In addition to not getting the benefit of the rent the tenant was required to pay in advance, the tenant also claims the landlord has not issued a receipt for the two weeks rent in advance WINZ paid on her behalf on 2 September 2023.
- A landlord must give a written receipt immediately for any rent paid by cash. See section 29(1) and (2)(a) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 29(5) and Schedule 1A Residential Tenancies Act 1986.
- The landlord took the rent in advance without providing receipt for it and in addition had no legal right to rent the premises out. I find they have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages of up to $350.00 where it is satisfied that 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 am satisfied that the landlord committed the unlawful act intentionally, and that, having regard to the evidence presented that— (a) the landlord deliberately misled and deceived the tenant, who he knew was a WINZ beneficiary, with intent of committing the unlawful act so that he could obtain a pecuniary gain from his deception that she would have to pursue in the Tribunal at her cost; (b) the effect of the unlawful act on the tenant has been significant as she has been paying the unreceipted advanced rent back in instalments for a home she has not been able to access and for which she has been unable to gain the benefits outlined in the tenancy agreement she signed on 20 July 2023; (c) the interests of the tenant against whom the unlawful act was committed will be benefited from the granting of the exemplary damages sought; and (d) the public interest is served as Seed Holdings Ltd, via its sole director and shareholder Mr Nicholas Pieter Miers-Hoogwert, has obtained pecuniary gains from this tenant whom he has taken money from and failed to receipt it so the tenant will have difficulty in recovering the monies paid.
- For all these reasons outlined in paragraph 21 above, I find it to be just to require the landlord to pay a sum in exemplary damages of $200.00 to the tenant. Filing fee reimbursement
- Because the tenant has wholly succeeded with the claim, I must reimburse the filing fee.