What was the outcome of Tenancy Tribunal case 4679089?

The tribunal order states: Neville Nortier must pay Ting Li $880.00 immediately, being a refund of the bond

How much money was awarded in case 4679089?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4679089?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4679089?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10351108-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4679089?

The tribunal order states: Neville Nortier must pay Ting Li $880.00 immediately, being a refund of the bond

How much money was awarded in case 4679089?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4679089?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4679089?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10351108-Tribunal_Order.pdf.

15 Bight Road, Long Bay, Auckland 0630 Tenancy Tribunal Case 4679089 — Mould & damp

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15 Bight Road, Long Bay, Auckland 0630 Tenancy Tribunal Case 4679089 — Mould & damp | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4679089. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

Neville Nortier must pay Ting Li $880.00 immediately, being a refund of the bond paid by the tenant.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant against the landlord. The tenant seeks a range of orders against the landlord.
Both parties appeared at the hearing in the North Shore District Courthouse on 17 May 2024.

BACKGROUND

The parties entered into an agreement for this tenancy to start on 28 November 2022. The written agreement was a preformatted ‘flat / house sharing’ agreement, but following the end of the tenancy, there was a significant dispute as to whether that was the correct legal category for this tenancy, I will discuss that further below. But from that agreement the landlord is “David Burke-Kennedy / Neville Nortier”, and the tenant Ting Li (Joy).
I record at this point that the Tribunal convened a previous hearing and issued an order on 15 February 2024, that was from Adjudicator Kee. Mr Kee heard from both parties at that hearing, and determined that: a. This was a tenancy to which the RTA applied. b. The landlord is Mr Nortier; and c. Mr Burke-Kennedy was not a landlord so was removed as a party.
The hearing was then adjourned to 17 May 2024 in order to consider the tenant’s claims.
It is clear that things have not gone well in the tenancy. I have seen and heard evidence particularly around friction between some tenants.
On 24 August 2023 the landlord gave the tenant notice ending the tenancy. The tenant gave the landlord her own notice to end the tenancy, and left the premises on 2 September 2023.
The tenant filed this application on 10 September 2023.
A hearing was convened in the North Shore District Courthouse on 17 May 2024 before myself to hear the tenant’s claims, given the Tribunal’s jurisdiction has been confirmed. At the start of the hearing, Ms Li confirmed that the hearing should be in English, but she was assisted from time to time by the Tribunal’s Korean interpreter present for the duration of the hearing.

TENANCY TYPE

The Tribunal has previously determined that this is a Residential Tenancy within the jurisdiction of the Tribunal. I agree with Adjudicator Kee’s assessment on that.
The question then becomes whether this is a boarding house, or standard residential tenancy. The rules that apply to each type of tenancy are different, but they both fall within the Residential Tenancies Act 1986 (RTA).
At the commencement of the hearing, both the landlord and tenant agreed on the following facts: a. At no stage did the landlord live in the premises during Ms Li’s tenancy (but Mr Nortier would attend the premises). b. The sleeping room was rented to Ms Li for her exclusive use. c. There were common facilities the occupants would use such as the kitchen and lounge for example. d. During the tenancy there were six or more tenants.
The definition of ‘boarding house’ and ‘boarding house tenancy’ is found in section 66B of the RTA as follows: boarding house means residential premises— (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time boarding house tenancy means a residential tenancy in a boarding house— (a) that is intended to, or that does in fact, last for 28 days or more; and (b) under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house
Based on the information on the file, and what the parties confirmed at the hearing, I consider that the premises would squarely meet the above definition of a ‘boarding house’ and the agreement between the parties would be a ‘boarding house tenancy’.
Accordingly, I will proceed on the basis that this is a boarding house tenancy.

WITNESS EVIDENCE

Ms Dougherty’s evidence

Ms Li called Ms Dougherty to give evidence. Ms Dougherty was a tenant in the premises prior to Ms Li’s tenancy. Ms Dougherty states that when she was living in the tenancy she would find Mr Nortier would come to the premises and ‘nit pick’ about things, but that she did not have real problems until she broke a chair. Ms Dougherty states that Mr Nortier would come to the premises around twice a week.
Ms Dougherty states that uncomfortable comments were made to her by Mr Nortier, and those were set out specifically in the hearing.
Under cross-examination Ms Dougherty states that the landlord would constantly message her, and would argue with her about various matters. Mr Nortier challenged Ms Doughterty on this, asking for examples.
Having heard from Ms Dougherty and Mr Nortier, my impression is that both parties had very different views around what was said and what occurred during Ms Dougherty’s tenancy. Ms Dougherty did not provide evidence specifically in relation to the tenancy with Ms Li. I record that Ms Dougherty and Mr Nortier wanted to engage further in relation to Ms Dougherty’s tenancy and their specific grievances which still seem raw, but given these issues are not evidence in relation to what happened during Ms Li’s tenancy, I determined it would not assist me further so Ms Dougherty was thanked and excused.
As I will discuss further below, Ms Dougherty filed a claim against Mr Nortier in the Tenancy Tribunal, but that was dismissed as it was found to be outside the Tribunals jurisdiction because that was a tenancy that fell outside of the RTA. Ms Jin’s evidence
Ms Jin attended the hearing by telephone from South Korea. All of Ms Jin’s evidence was in Korean, and interpreted by the Tribunal’s interpreter.
Ms Jin advised that she came to New Zealand on 14 January 2023, for aperiod of 7 months, and during this stayed with the tenant. Ms Jin states she did not have any contact with Mr Nortier in any significant way, but saw Mr Nortier when he would come to the house about once a week.
Ms Jin gave evidence that the first time she saw the landlord he was topless. Under cross-examination, Mr Nortier noted that there is a communal gym at the premises, and asked if the reference to not having a shirt on, was when he was working out in the gym
Ms Jin also described an episode when she was cooking and the landlord asked about what she was cooking, and appeared disapproving of it, which Ms Jin states hurt her feelings.
Ms Li asked if there were any comments or behaviours from the landlord that made her feel uncomfortable. Ms Jin states that the garage door may be left open and that caused her some security concerns.
At one stage another tenant had said she could sit on the other tenant’s lap, and she considered that what the other tenant did and said amounted to sexual harassment.
Ms Jin had given evidence that there was another tenant’s underpants under the sink. Following a question from Mr Nortier, Ms Jin states she could not recall how long they were left there before being removed.
Mr Nortier asked if Ms Jin was aware that Mr Nortier had sent an email to the male tenants warning them to be careful of their behaviour around the female tenants. 1 Ms Jin was not aware of that specific communication. Mr Alexander’s evidence
Mr Alexander confirmed he was a tenant at the tenancy when Ms Li was living there. Mr Li confirmed that he had professional and appropriate interactions with Mr Nortier, that the landlord was accommodating and open to hearing any concerns Mr Alexander had. He was not aware of any issues between the tenant and landlord.
Mr Alexander advised that he did not have any problems with Ms Li or any other tenant, so he had a good relationship with her. 1 This was provided to the Tribunal and is dated 29 November 2023.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant, that is the tenant in this case), establish their claims on the balance of probabilities. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Exemplary damages
The Tribunal must consider a number of claims for exemplary damages.
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.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.
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.
The maximum levels of exemplary damages are set out in Schedule 1A of the RTA.
One of the specific requirements in order to receive exemplary damages is that the breach must be intentional. I will set out the relevant law around what that means because as will be seen this consideration will be of significant relevance for a number of the tenant’s claims.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal 2 that: Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. 2 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
A second District Court decision of relevance is Peter Stoekeken v Nykala Toheriri and Vince Aso [2022] NZDC 9698, a decision from Judge Tuohy. The dispute in that case included a claim for exemplary damages because the landlord had rented the premises with an exposed electrical wire. Judge Tuohy accepted that the landlord did not know the wire was exposed, but importantly confirmed that: ...S 109(3) of the Act requires the Tribunal to be satisfied that the unlawful act was committed intentionally by the person who committed it before exemplary damages can be awarded.... ...assuming that the landlord is liable for the omissions of his agents as well as his own, I am not satisfied that he or his agents intentionally decided not to carry out an inspection which was sufficiently through to reveal the wire. Even if they ought to have noticed it, that is not equivalent to an intentional act. As the Adjudicator in the second decision stated when declining to award exemplary damages to the landlord, the unlawful act must have been committed intentionally in the sense of deliberately and in full knowledge that they were not meeting their obligations. The evidence does not establish that. In summary, I consider that there are insufficient grounds to award exemplary damages against the landlord in relation to the exposed wire.

TENANTS CLAIMS

I will now address the claims presented by the tenant.
Refund of Bond
The tenant seeks a refund of the bond she paid to the landlord of $880.00.
The landlord confirmed that he did receive $880.00, and he still holds that money. Analysis
The Tribunal must consider an application filed by the tenant at the end of the tenancy, seeking recovery of her bond.
Section 22B of the RTA applies, that provision confirms that: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applied to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlords’s counterclaim.
The effect of this provision, is that when the tenant applies to the Tribunal for release of the bond in whole or in part, if the landlord wishes to argue that it has any call on that bond, then the landlord “must” file a counterclaim for it. In the absence of a counterclaim, then the Tribunal must order that the bond be released to the tenant.
This means that if the landlord subsequently wishes to pursue any claim against the tenant, the landlord is still able to do so, but if the landlord is successful in the claim, there would not be any bond that the Tribunal could order be released to go toward the landlord’s claim.
For the above reasons, in the absence of a counterclaim from the landlord, the Tribunal orders that the full bond be refunded to the tenant.
Exemplary damages for discrimination
The tenant claims exemplary damages on the grounds of discrimination on the part of the landlord given how he spoke to the tenant and on the basis of the evidence of the witnesses.
At the hearing I clarified what the law was in relation to discrimination claims under the RTA means. The tenant then submitted that the termination notice was motivated on the basis that the tenant was a female and Korean, and given a view that there was a problem with her food and that she was divorced.
In response the landlord disputes that there was any discrimination in terminating Ms Li’s tenancy. The landlord states that the tenancy was terminated because the tenant was difficult to work with, she would make frequent and excessive complaints about what was happening in the tenancy and was generally disruptive. The example was given about a complaint from Ms Li that occupants in the tenancy were filling the kettle via the spout (rather than via the kettle lid), putting sponges in the dishwasher, not separating rubbish for recycling, and having the garage door open. Mr Nortier states that these sorts of complaints were petty, and took excessive landlord time and caused friction in the house, therefore he considered it better to terminate the tenancy.
Mr Nortier states that after a request from the tenant to withdraw the termination notice was received, he agreed he would do so if she agreed to moderate her behaviours (this was supported in the email evidence provided at the hearing). Mr Nortier also notes that over time he has had tenants from all over the world stay in the premises, arguing against having a racist attitude.
The tenant considers that she was an easy target for the landlord given the complaints in relation to friction with another tenant Analysis
In order to find a breach of the RTA, the landlord must discriminate against the tenant based on one of the unlawful grounds of discrimination set out in the Human Rights Act 1993.
The tenant’s position is that the landlord terminated her tenancy because of her race, gender and marital status, if that was the case that would be unlawful discrimination under both the Human Rights Act and the RTA. However I can see no evidence of that in this case. The fact that the tenant is a female and no male tenant was terminated is not evidence that she must have been terminated because she is female. Neither is there any evidence that the landlord's motivation for terminating the tenancy was because of her race or marital status.
The landlord has produced contemporaneous evidence in the form of emails which supports that the reason the tenancy was terminated is because of difficulties with Ms Li, and his assessment that she was not a good fit for the boarding house. I consider that is most likely to be the reason for the termination in this case. This claim has not been established so is dismissed.
Exemplary damages for failure to have a tenancy agreement in writing
The tenant states that she did not receive a tenancy agreement with the landlord's signature. The tenant says she was provided with a blank tenancy agreement that she signed and returned, but did not get a copy of that with the landlord's signature.
The landlord states that he did sign and provide a copy of the tenancy agreement to the tenant, and delivered it to the tenant when he visited the premises.
The tenant disputes that she received this, stating that later in the tenancy and dispute the landlord could not produce a copy of the tenancy agreement, which she says is evidence the landlord did not have a completed copy.
The landlord states that he did not have an electronic copy, but that he has been able to find a paper copy. Analysis
Section 13 of the RTA sets out the requirements in relation to tenancy agreements and holds that the tenancy agreement must be in writing and signed by the landlord at least. The landlord must provide a copy of the signed agreement to the tenant. Failure to do so is deemed to be an unlawful act.
In this case I consider that the most likely situation is that the landlord did not provide the tenant a copy of the tenancy agreement with his signature, and therefore there is a breach of the tenancy agreement.
However I decline to order exemplary damages for two reasons. Firstly I do not consider that the landlord is likely to have withheld a signed tenancy agreement knowing that he needed to provide the document to the tenant. Again I consider it very likely that when Ms Li’s tenancy commenced, that the landlord believed that this was not a residential tenancy falling within the RTA.
Secondly, I do not consider ordering exemplary damages would be just. I can see that the landlord has provided a copy of the tenancy agreement to the tenant, and the landlord has never disputed that there was an agreement between the parties. Certainly, there is a disagreement as to the type of tenancy or arrangement it was, but that has nothing to do with the fact that the landlord had not signed the tenant’s copy of the agreement. To that extent I do not consider it would be just to make an order of exemplary damages.
This claim is declined.
Exemplary damages for breach of tenancy agreement obligations
The tenant states that the content of the tenancy agreement was incorrect, because it was the content of a flat / house-sharing agreement. This included saying any dispute needed to go to the Disputes Tribunal.
The landlord submitted that he thought this was a lawful agreement, and he believed that he could go to Disputes Tribunal as he was required to do in the earlier dispute with Ms Dougherty. Analysis
Section 13A sets out the general requirements for information in tenancy agreements, and section 66C sets out some other requirements for boarding house tenancy agreement as is the case here.
I accept that in this case the agreement used, the flat / house-sharing agreement, would not comply as it did not have all of the necessary content.
Again to make an order for exemplary damages for a breach of the landlord’s obligations, I would need to find that the landlord acted intentionally to breach this obligation. However I consider it very likely that the landlord did have an honest belief that this was correctly a flat / house- sharing arrangement. I accept the evidence from the landlord on this.
As discussed at the hearing, that the landlord has previously been a respondent in the claim from Ms Dougherty. 3 It is the case that the Tribunal had declined jurisdiction to hear that dispute, and confirmed that the parties would need to go to the Disputes Tribunal. Not surprisingly the landlord would have been led to believe that the tenancy agreement with Ms Li fell outside of the RTA because it was the same form of agreement. Adjudicator Kee had determined the situation not to be a residential tenancy under the RTA. But the landlord was entitled to accept the finding of the Tribunal, and I can see how this mistaken understanding as to whether this was a tenancy within the RTA arose.
While I find there has been a breach of the landlord’s obligations around tenancy agreements, I find the breach was not intentional, and for that reason cannot order that exemplary damages be paid for that breach.
Failure to lodge bond
Ms Li seeks exemplary damages because Mr Nortier did not lodge the bond with the Bond Centre.
Mr Nortier submitted that his belief was that this was a house share / flatmate situation where the bond did not need to be lodged, had he known otherwise, the bond would have been lodged. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, for failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre. 3 Shauna Monique Dougherty v Neville Nortier [2022] NZTT 4453955.
Section 19(2) of the RTA confirms that failure to lodge the bond following the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
Again I accept the landlord has breached this obligation, but finding as I do that the landlord would have had an honest belief the RTA did not apply, I accept that any failure to lodge the bond was not intentional, so I cannot order exemplary damages be paid for this breach.
Failure to provide receipts for rent
The tenant states that no receipts for rent were provided. All payments were made electronically. Analysis
Section 29 of the RTA relates to receipts for rent. A landlord does need to provide receipts for rent under that provision, however section 29 confirms that if the payment is made by electronic bank transfer, as is the case here, that receipts do not need to be given for rent payments.
There is no breach here so the application is dismissed.
Failure to keep records
The tenant states that the landlord failed to keep records such as the tenancy agreement, where the landlord did not keep a copy of that document and asked that the tenant provide a copy.
The landlord disputes this is the case, noting that he did have a copy of the agreement that he produced at the hearing. The landlord states that he did misplace the original copy of the tenancy agreement, but he did later find it. The landlord states that the tenant had provided a scanned copy and he did ask for a copy of the document electronically, but again the landlord states the original document was found. Analysis
The tenant has claimed exemplary damages under section 30. Section 30 requires the landlord to keep proper business-like records, but that provision only relates to the payment of rent and bond. Section 30 does not in fact require the landlord to hold the tenancy agreement, so even if the landlord did not keep it, it would not be a breach of section 30.
However, I am not persuaded that there is sufficient evidence to prove it is likely that the landlord did not hold a tenancy agreement.
No breach has been established of section 30, so this claim is dismissed.
Exemplary damages for breach of quiet enjoyment
The tenant seeks exemplary damages for a breach of her quiet enjoyment. The tenant states that the landlord has ‘slandered’ her with communications in the boarding house electronic message group (provided to the Tribunal).
In response, Mr Nortier considered that he could have toned down the communication on Messanger, but he disputes there is a quiet enjoyment breach. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
In this case the tenant submits that the communications from the landlord on the boarding house message board (Messager) were slanderous and breached her quiet enjoyment in circumstances amounting to harassment.
I have reviewed those messages, and I am not convinced the landlord has harassed the tenant. I can see that there have been spirited conversations at times in those messages, but they appear to be in the context of genuine issues that the parties have had in the tenancy. The communications are of course informal, and they should be viewed in that light.
An example of one communication from 25 August 2023, relates to an issue where the tenant complained that power had been turned off, following what seems to have been an electrical short circuit, where smoke was emanating from a power point. I can understand why the power was turned off in that case. The communications that went out included the following: Thanks for all the input. What Joy doesn’t explain is the call she made to me immediately after David switched off the switches. As is often the case with Joy, she will provide half the story to suit her end. Thi[s] is dishonest. I’ve seen this as a pattern several times. Joy said several times in no uncertain terms she needs to be consulted first before electricity is switched off. I stated in the call the house could have burnt down and there was potential danger to life. She was still adamant that she should be consulted first. She proceeded to shout at me and abuse me on the phone. ... I sent her an email past this point stating that this was unacceptable, not just the behaviour towards me but towards David and consideration towards the household. Joy will continue to try convince all she is innocent. Of course. Joy is very good at this and I can see this from the last several months of interactions with her. He is very one sided and self serving in her views and refuses to give in to anyone else’s view. There has been too many repeated patterns here that not all have visibility of and I can’t ignore any more.
The landlord accepted that in hindsight, he should have been more moderate in that communication, and I agree there. But I also accept that this was a communication in a series of communications in relation to a concerning electrical incident, and I can accept that would have played into what was written. But I do not accept that the landlord set about sending that communication intending to upset the tenant, which would be a hallmark of a harassing communication.
I have also considered whether the landlord had allowed any of the other tenants to breach the quiet enjoyment of Ms Li, and I find he did not. Ms Li did raise some allegations of concern in relation to other tenants, which if correct would be concerning. I am minded that while I have heard evidence from Ms Li on those allegations, I have not heard evidence from any of the tenants said to have caused that behaviour, I record that for fairness. But assuming that Ms Li’s allegations were correct, then I believe the landlord did not ignore that behaviour and he acted reasonably in the circumstances. At the hearing the landlord produced an email which he advised was sent to the male tenants. In short, that email is dated 29 November 2023 and reminds the occupants of the need to be respectful and moderate behaviour toward females in the house, and the inappropriateness of making sexual or derogatory comments. The email concludes: I REALLY want Joy to feel totally at home and secure and like she has her own privacy. She has had it rough. I really would like us all to be overly respectful while at the same time giving her space. Even if she is being polite, don’t always take her politeness as a yes. Try to balance that out. I have NO bad feedback from Joy BTW but I wanted to be preemptive.
The approach of working with other tenants following behavioural complaints in a boarding house context was appropriate.
I have not seen any evidence of the landlord harassing the tenant, or permitting harassment, and to that extent find no basis to order the landlord to pay the tenant exemplary damages. 9 and 10. Exemplary damages for unlawful entry
The tenant seeks exemplary damages for unlawful entry on the part of the landlord.
At the hearing, it was apparent that neither the landlord nor tenant realised the law that applied for entry into a boarding house. I explained that to both parties before receiving the below submissions.
The tenant states that the landlord used the fridge and had jam in the fridge, and would use the gym and kitchen from time to time.
The landlord disputes using the fridge but accepts he may have had jam in the fridge. The landlord accepts that he would use the gym from time to time and the kitchen to make tea but he cannot recall cooking eggs as the tenant described. Analysis
The rules around landlords entering a boarding house are very different to a non-boarding house tenancy. Section 66Q of the RTA confirms: (1) The landlord of a boarding house may enter the boarding house at any time. (2) The landlord must not use the facilities of the boarding house for his or her own domestic purposes unless the landlord resides at the boarding house.
There are restrictions that apply for the landlord entering the tenant’s specific boarding room, but the tenant confirmed she had no concerns in that regard, her issue was with the gym and kitchen.
The term ‘facilities’ with respect to boarding houses, is defined in section 66B of the RTA as follows: facilities means the facilities provided by the landlord of a boarding house for the shared use by tenants of the boarding house, such as— (a) toilet and bathroom facilities: (b) cooking facilities: (c) general living, dining, or recreational areas: (d) laundry facilities: (e) lifts and stairways: (f) rubbish storage and rubbish disposal facilities: (g) appliances for heating or cooling premises: (h) communication facilities: (i) lawns, gardens, and outhouses: (j) any land or buildings intended for use for storage space or for the parking of motor vehicles
The kitchen and gym would meet the definition of facilities of the premises, and I could accept they would have been used by the landlord for ‘domestic purposes’, and I would accept that the landlord has probably breached his obligation under section 66Q.
However, again I decline to order exemplary damages for this breach because I am not persuaded that the landlord intentionally breached his obligations to the tenants here. I accept the landlord had an honest belief that he was able to use these facilities, and to that extent I find an intentional breach has not been proven.
Retaliatory termination notice
The tenant submits that the termination notice was retaliatory, and started when she asked the landlord not to touch her belongings, and discussion about keeping her snacks in a drawer.
The landlord states that when he opened the drawer he found what he considered to be mouldy bread, but nevertheless he states that there were problems with the tenant over many months, as discussed in this decision above. The landlord disputes that the notice was retaliatory, rather it resulted from disruption to the wider tenancy and himself. Analysis
Section 54 of the Residential Tenancies Act 1986 holds that the Tribunal may declare a notice to terminate a tenancy of no effect, and retaliatory if: In giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power , authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.
The Tribunal in Easton v Marks Auckland TT 229/87, 27 May 1987 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions. The Tribunal in that case noted that: It is one thing to say that an owner of a property has grown somewhat tired of his property being tenanted to persons, it is another thing to say that the tenants gave impetus to, or incited, or impelled the owner to give the notice to quit.
The Tribunal found that the landlord, in giving notice of termination, was therefore not motivated wholly or partly by the tenants’ exercise of powers within the meaning of s 54.
It is relevant at this point to consider the legal criteria that applies for terminating a boarding house tenancy. Section 66U applies, and sets out the criteria for termination by a landlord. That confirms a boarding house landlord may: a. Terminate a tenancy immediately when there have been serious actual or threats to cause serious disruption, damage or danger to people. b. On 48 hours’ notice when there are issues with rent or the premises being used for an illegal purpose; or c. “on 28 days’ notice if no reason is given”
It is the final criteria that would apply here, that a boarding house landlord can terminate a tenancy with 28 days’ notice. While the landlord gave the tenant reasons in the termination notice, he was not required to do so.
While no reason to terminate the tenancy is needed, the notice however cannot be a retaliatory termination notice.
When I consider the information before me, I am not persuaded that the termination was given in whole or in part on the tenant exercising any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or RTA or other Act or any complaint by the tenant against the landlord relating to the tenancy.
While the landlord was not required to give reasons in the termination notice, he did, he confirmed the notice was given because of repeated disruption to himself and the other tenants.
That was consistent with an email sent to the tenants on the day of the termination where he advised: Due to repeated instances with Joy being the centre of such issues, I have made the hard decision to give her notice. I have monitored this over months and see this as the best interest of the household. Normally I would involve the household in this decision. I won’t this time as I have been exposed to many of Joy’s issues first hand. To give a little context, Joy calls and emails me frequently. Each instance has been one-sided, dangerous for the household and toxic in general to the household. After dealing with a potential electric fire hazard and safety to people’s lives, in which Joy was shouting at me on the phone stating she has the right to be consulted first before electricity is switched off, I sent her a written warning. The latest incident where Joy has made a large issue out of me putting food on the bench top that I found in a TC drawer is unacceptable. It clearly shows how she treats the household and I see Joy as key to a toxic environment at Bight right now. Feel free to call me to discuss.
I am also minded that the evidence is that the landlord had offered to withdraw the termination notice if the tenant was agreeable to moderating her behaviour. Again that is strongly supportive of the landlord’s explanation at the hearing as being the reason for the termination.
The consistency between the termination notice, the email to the other tenants, the offer to withdraw the notice and what the landlord explained at the hearing as the reasons for terminating the tenancy, leads me to accept the reasons set out by the landlord as being genuine.
A notice of termination given for genuine and fair reasons will not be considered retaliatory. For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that the notice was not retaliatory. Judge Ongley stated he was: ... quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her. She found that Mr Kerr was not a suitable tenant for those flats because he could not tolerate activities by other tenants which Mrs Woodman believed were unavoidable. She believed that she was faced with the alternatives of either having continuous disputes among tenants, or otherwise bringing Mr Kerr’s tenancy to an end. I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.
Prior to 21 February 2021, a landlord in a standard (non-boarding house) tenancy was able to end a tenancy with 90 days’ notice for no reason. That ability was removed by Parliament, and following that date there were only limited reasons a landlord could terminate a standard tenancy. However Parliament did not make those changes to the termination provisions for boarding house tenancies. That is likely to be a reflection of the special circumstances that boarding house landlords face, where unfortunately needing to terminate a tenancy to maintain harmony in the boarding house may be at times required.
So while the landlord did not need to have a reason to end Ms Li’s tenancy, I accept the reason he gave, and I do not consider the reason was in retaliation for an action on the part of the tenant to be deemed a retaliatory termination notice. This claim has not been established so is dismissed.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppression. I do not conclude that the tenant has been substantially successful in the proceeding, so name suppression is declined.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4679089. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

Neville Nortier must pay Ting Li $880.00 immediately, being a refund of the bond paid by the tenant.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant against the landlord. The tenant seeks a range of orders against the landlord.
Both parties appeared at the hearing in the North Shore District Courthouse on 17 May 2024.

BACKGROUND

The parties entered into an agreement for this tenancy to start on 28 November 2022. The written agreement was a preformatted ‘flat / house sharing’ agreement, but following the end of the tenancy, there was a significant dispute as to whether that was the correct legal category for this tenancy, I will discuss that further below. But from that agreement the landlord is “David Burke-Kennedy / Neville Nortier”, and the tenant Ting Li (Joy).
I record at this point that the Tribunal convened a previous hearing and issued an order on 15 February 2024, that was from Adjudicator Kee. Mr Kee heard from both parties at that hearing, and determined that: a. This was a tenancy to which the RTA applied. b. The landlord is Mr Nortier; and c. Mr Burke-Kennedy was not a landlord so was removed as a party.
The hearing was then adjourned to 17 May 2024 in order to consider the tenant’s claims.
It is clear that things have not gone well in the tenancy. I have seen and heard evidence particularly around friction between some tenants.
On 24 August 2023 the landlord gave the tenant notice ending the tenancy. The tenant gave the landlord her own notice to end the tenancy, and left the premises on 2 September 2023.
The tenant filed this application on 10 September 2023.
A hearing was convened in the North Shore District Courthouse on 17 May 2024 before myself to hear the tenant’s claims, given the Tribunal’s jurisdiction has been confirmed. At the start of the hearing, Ms Li confirmed that the hearing should be in English, but she was assisted from time to time by the Tribunal’s Korean interpreter present for the duration of the hearing.

TENANCY TYPE

The Tribunal has previously determined that this is a Residential Tenancy within the jurisdiction of the Tribunal. I agree with Adjudicator Kee’s assessment on that.
The question then becomes whether this is a boarding house, or standard residential tenancy. The rules that apply to each type of tenancy are different, but they both fall within the Residential Tenancies Act 1986 (RTA).
At the commencement of the hearing, both the landlord and tenant agreed on the following facts: a. At no stage did the landlord live in the premises during Ms Li’s tenancy (but Mr Nortier would attend the premises). b. The sleeping room was rented to Ms Li for her exclusive use. c. There were common facilities the occupants would use such as the kitchen and lounge for example. d. During the tenancy there were six or more tenants.
The definition of ‘boarding house’ and ‘boarding house tenancy’ is found in section 66B of the RTA as follows: boarding house means residential premises— (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time boarding house tenancy means a residential tenancy in a boarding house— (a) that is intended to, or that does in fact, last for 28 days or more; and (b) under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house
Based on the information on the file, and what the parties confirmed at the hearing, I consider that the premises would squarely meet the above definition of a ‘boarding house’ and the agreement between the parties would be a ‘boarding house tenancy’.
Accordingly, I will proceed on the basis that this is a boarding house tenancy.

WITNESS EVIDENCE

Ms Dougherty’s evidence

Ms Li called Ms Dougherty to give evidence. Ms Dougherty was a tenant in the premises prior to Ms Li’s tenancy. Ms Dougherty states that when she was living in the tenancy she would find Mr Nortier would come to the premises and ‘nit pick’ about things, but that she did not have real problems until she broke a chair. Ms Dougherty states that Mr Nortier would come to the premises around twice a week.
Ms Dougherty states that uncomfortable comments were made to her by Mr Nortier, and those were set out specifically in the hearing.
Under cross-examination Ms Dougherty states that the landlord would constantly message her, and would argue with her about various matters. Mr Nortier challenged Ms Doughterty on this, asking for examples.
Having heard from Ms Dougherty and Mr Nortier, my impression is that both parties had very different views around what was said and what occurred during Ms Dougherty’s tenancy. Ms Dougherty did not provide evidence specifically in relation to the tenancy with Ms Li. I record that Ms Dougherty and Mr Nortier wanted to engage further in relation to Ms Dougherty’s tenancy and their specific grievances which still seem raw, but given these issues are not evidence in relation to what happened during Ms Li’s tenancy, I determined it would not assist me further so Ms Dougherty was thanked and excused.
As I will discuss further below, Ms Dougherty filed a claim against Mr Nortier in the Tenancy Tribunal, but that was dismissed as it was found to be outside the Tribunals jurisdiction because that was a tenancy that fell outside of the RTA. Ms Jin’s evidence
Ms Jin attended the hearing by telephone from South Korea. All of Ms Jin’s evidence was in Korean, and interpreted by the Tribunal’s interpreter.
Ms Jin advised that she came to New Zealand on 14 January 2023, for aperiod of 7 months, and during this stayed with the tenant. Ms Jin states she did not have any contact with Mr Nortier in any significant way, but saw Mr Nortier when he would come to the house about once a week.
Ms Jin gave evidence that the first time she saw the landlord he was topless. Under cross-examination, Mr Nortier noted that there is a communal gym at the premises, and asked if the reference to not having a shirt on, was when he was working out in the gym
Ms Jin also described an episode when she was cooking and the landlord asked about what she was cooking, and appeared disapproving of it, which Ms Jin states hurt her feelings.
Ms Li asked if there were any comments or behaviours from the landlord that made her feel uncomfortable. Ms Jin states that the garage door may be left open and that caused her some security concerns.
At one stage another tenant had said she could sit on the other tenant’s lap, and she considered that what the other tenant did and said amounted to sexual harassment.
Ms Jin had given evidence that there was another tenant’s underpants under the sink. Following a question from Mr Nortier, Ms Jin states she could not recall how long they were left there before being removed.
Mr Nortier asked if Ms Jin was aware that Mr Nortier had sent an email to the male tenants warning them to be careful of their behaviour around the female tenants. 1 Ms Jin was not aware of that specific communication. Mr Alexander’s evidence
Mr Alexander confirmed he was a tenant at the tenancy when Ms Li was living there. Mr Li confirmed that he had professional and appropriate interactions with Mr Nortier, that the landlord was accommodating and open to hearing any concerns Mr Alexander had. He was not aware of any issues between the tenant and landlord.
Mr Alexander advised that he did not have any problems with Ms Li or any other tenant, so he had a good relationship with her. 1 This was provided to the Tribunal and is dated 29 November 2023.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant, that is the tenant in this case), establish their claims on the balance of probabilities. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Exemplary damages
The Tribunal must consider a number of claims for exemplary damages.
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.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.
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.
The maximum levels of exemplary damages are set out in Schedule 1A of the RTA.
One of the specific requirements in order to receive exemplary damages is that the breach must be intentional. I will set out the relevant law around what that means because as will be seen this consideration will be of significant relevance for a number of the tenant’s claims.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal 2 that: Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. 2 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
A second District Court decision of relevance is Peter Stoekeken v Nykala Toheriri and Vince Aso [2022] NZDC 9698, a decision from Judge Tuohy. The dispute in that case included a claim for exemplary damages because the landlord had rented the premises with an exposed electrical wire. Judge Tuohy accepted that the landlord did not know the wire was exposed, but importantly confirmed that: ...S 109(3) of the Act requires the Tribunal to be satisfied that the unlawful act was committed intentionally by the person who committed it before exemplary damages can be awarded.... ...assuming that the landlord is liable for the omissions of his agents as well as his own, I am not satisfied that he or his agents intentionally decided not to carry out an inspection which was sufficiently through to reveal the wire. Even if they ought to have noticed it, that is not equivalent to an intentional act. As the Adjudicator in the second decision stated when declining to award exemplary damages to the landlord, the unlawful act must have been committed intentionally in the sense of deliberately and in full knowledge that they were not meeting their obligations. The evidence does not establish that. In summary, I consider that there are insufficient grounds to award exemplary damages against the landlord in relation to the exposed wire.

TENANTS CLAIMS

I will now address the claims presented by the tenant.
Refund of Bond
The tenant seeks a refund of the bond she paid to the landlord of $880.00.
The landlord confirmed that he did receive $880.00, and he still holds that money. Analysis
The Tribunal must consider an application filed by the tenant at the end of the tenancy, seeking recovery of her bond.
Section 22B of the RTA applies, that provision confirms that: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applied to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlords’s counterclaim.
The effect of this provision, is that when the tenant applies to the Tribunal for release of the bond in whole or in part, if the landlord wishes to argue that it has any call on that bond, then the landlord “must” file a counterclaim for it. In the absence of a counterclaim, then the Tribunal must order that the bond be released to the tenant.
This means that if the landlord subsequently wishes to pursue any claim against the tenant, the landlord is still able to do so, but if the landlord is successful in the claim, there would not be any bond that the Tribunal could order be released to go toward the landlord’s claim.
For the above reasons, in the absence of a counterclaim from the landlord, the Tribunal orders that the full bond be refunded to the tenant.
Exemplary damages for discrimination
The tenant claims exemplary damages on the grounds of discrimination on the part of the landlord given how he spoke to the tenant and on the basis of the evidence of the witnesses.
At the hearing I clarified what the law was in relation to discrimination claims under the RTA means. The tenant then submitted that the termination notice was motivated on the basis that the tenant was a female and Korean, and given a view that there was a problem with her food and that she was divorced.
In response the landlord disputes that there was any discrimination in terminating Ms Li’s tenancy. The landlord states that the tenancy was terminated because the tenant was difficult to work with, she would make frequent and excessive complaints about what was happening in the tenancy and was generally disruptive. The example was given about a complaint from Ms Li that occupants in the tenancy were filling the kettle via the spout (rather than via the kettle lid), putting sponges in the dishwasher, not separating rubbish for recycling, and having the garage door open. Mr Nortier states that these sorts of complaints were petty, and took excessive landlord time and caused friction in the house, therefore he considered it better to terminate the tenancy.
Mr Nortier states that after a request from the tenant to withdraw the termination notice was received, he agreed he would do so if she agreed to moderate her behaviours (this was supported in the email evidence provided at the hearing). Mr Nortier also notes that over time he has had tenants from all over the world stay in the premises, arguing against having a racist attitude.
The tenant considers that she was an easy target for the landlord given the complaints in relation to friction with another tenant Analysis
In order to find a breach of the RTA, the landlord must discriminate against the tenant based on one of the unlawful grounds of discrimination set out in the Human Rights Act 1993.
The tenant’s position is that the landlord terminated her tenancy because of her race, gender and marital status, if that was the case that would be unlawful discrimination under both the Human Rights Act and the RTA. However I can see no evidence of that in this case. The fact that the tenant is a female and no male tenant was terminated is not evidence that she must have been terminated because she is female. Neither is there any evidence that the landlord's motivation for terminating the tenancy was because of her race or marital status.
The landlord has produced contemporaneous evidence in the form of emails which supports that the reason the tenancy was terminated is because of difficulties with Ms Li, and his assessment that she was not a good fit for the boarding house. I consider that is most likely to be the reason for the termination in this case. This claim has not been established so is dismissed.
Exemplary damages for failure to have a tenancy agreement in writing
The tenant states that she did not receive a tenancy agreement with the landlord's signature. The tenant says she was provided with a blank tenancy agreement that she signed and returned, but did not get a copy of that with the landlord's signature.
The landlord states that he did sign and provide a copy of the tenancy agreement to the tenant, and delivered it to the tenant when he visited the premises.
The tenant disputes that she received this, stating that later in the tenancy and dispute the landlord could not produce a copy of the tenancy agreement, which she says is evidence the landlord did not have a completed copy.
The landlord states that he did not have an electronic copy, but that he has been able to find a paper copy. Analysis
Section 13 of the RTA sets out the requirements in relation to tenancy agreements and holds that the tenancy agreement must be in writing and signed by the landlord at least. The landlord must provide a copy of the signed agreement to the tenant. Failure to do so is deemed to be an unlawful act.
In this case I consider that the most likely situation is that the landlord did not provide the tenant a copy of the tenancy agreement with his signature, and therefore there is a breach of the tenancy agreement.
However I decline to order exemplary damages for two reasons. Firstly I do not consider that the landlord is likely to have withheld a signed tenancy agreement knowing that he needed to provide the document to the tenant. Again I consider it very likely that when Ms Li’s tenancy commenced, that the landlord believed that this was not a residential tenancy falling within the RTA.
Secondly, I do not consider ordering exemplary damages would be just. I can see that the landlord has provided a copy of the tenancy agreement to the tenant, and the landlord has never disputed that there was an agreement between the parties. Certainly, there is a disagreement as to the type of tenancy or arrangement it was, but that has nothing to do with the fact that the landlord had not signed the tenant’s copy of the agreement. To that extent I do not consider it would be just to make an order of exemplary damages.
This claim is declined.
Exemplary damages for breach of tenancy agreement obligations
The tenant states that the content of the tenancy agreement was incorrect, because it was the content of a flat / house-sharing agreement. This included saying any dispute needed to go to the Disputes Tribunal.
The landlord submitted that he thought this was a lawful agreement, and he believed that he could go to Disputes Tribunal as he was required to do in the earlier dispute with Ms Dougherty. Analysis
Section 13A sets out the general requirements for information in tenancy agreements, and section 66C sets out some other requirements for boarding house tenancy agreement as is the case here.
I accept that in this case the agreement used, the flat / house-sharing agreement, would not comply as it did not have all of the necessary content.
Again to make an order for exemplary damages for a breach of the landlord’s obligations, I would need to find that the landlord acted intentionally to breach this obligation. However I consider it very likely that the landlord did have an honest belief that this was correctly a flat / house- sharing arrangement. I accept the evidence from the landlord on this.
As discussed at the hearing, that the landlord has previously been a respondent in the claim from Ms Dougherty. 3 It is the case that the Tribunal had declined jurisdiction to hear that dispute, and confirmed that the parties would need to go to the Disputes Tribunal. Not surprisingly the landlord would have been led to believe that the tenancy agreement with Ms Li fell outside of the RTA because it was the same form of agreement. Adjudicator Kee had determined the situation not to be a residential tenancy under the RTA. But the landlord was entitled to accept the finding of the Tribunal, and I can see how this mistaken understanding as to whether this was a tenancy within the RTA arose.
While I find there has been a breach of the landlord’s obligations around tenancy agreements, I find the breach was not intentional, and for that reason cannot order that exemplary damages be paid for that breach.
Failure to lodge bond
Ms Li seeks exemplary damages because Mr Nortier did not lodge the bond with the Bond Centre.
Mr Nortier submitted that his belief was that this was a house share / flatmate situation where the bond did not need to be lodged, had he known otherwise, the bond would have been lodged. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, for failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre. 3 Shauna Monique Dougherty v Neville Nortier [2022] NZTT 4453955.
Section 19(2) of the RTA confirms that failure to lodge the bond following the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
Again I accept the landlord has breached this obligation, but finding as I do that the landlord would have had an honest belief the RTA did not apply, I accept that any failure to lodge the bond was not intentional, so I cannot order exemplary damages be paid for this breach.
Failure to provide receipts for rent
The tenant states that no receipts for rent were provided. All payments were made electronically. Analysis
Section 29 of the RTA relates to receipts for rent. A landlord does need to provide receipts for rent under that provision, however section 29 confirms that if the payment is made by electronic bank transfer, as is the case here, that receipts do not need to be given for rent payments.
There is no breach here so the application is dismissed.
Failure to keep records
The tenant states that the landlord failed to keep records such as the tenancy agreement, where the landlord did not keep a copy of that document and asked that the tenant provide a copy.
The landlord disputes this is the case, noting that he did have a copy of the agreement that he produced at the hearing. The landlord states that he did misplace the original copy of the tenancy agreement, but he did later find it. The landlord states that the tenant had provided a scanned copy and he did ask for a copy of the document electronically, but again the landlord states the original document was found. Analysis
The tenant has claimed exemplary damages under section 30. Section 30 requires the landlord to keep proper business-like records, but that provision only relates to the payment of rent and bond. Section 30 does not in fact require the landlord to hold the tenancy agreement, so even if the landlord did not keep it, it would not be a breach of section 30.
However, I am not persuaded that there is sufficient evidence to prove it is likely that the landlord did not hold a tenancy agreement.
No breach has been established of section 30, so this claim is dismissed.
Exemplary damages for breach of quiet enjoyment
The tenant seeks exemplary damages for a breach of her quiet enjoyment. The tenant states that the landlord has ‘slandered’ her with communications in the boarding house electronic message group (provided to the Tribunal).
In response, Mr Nortier considered that he could have toned down the communication on Messanger, but he disputes there is a quiet enjoyment breach. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
In this case the tenant submits that the communications from the landlord on the boarding house message board (Messager) were slanderous and breached her quiet enjoyment in circumstances amounting to harassment.
I have reviewed those messages, and I am not convinced the landlord has harassed the tenant. I can see that there have been spirited conversations at times in those messages, but they appear to be in the context of genuine issues that the parties have had in the tenancy. The communications are of course informal, and they should be viewed in that light.
An example of one communication from 25 August 2023, relates to an issue where the tenant complained that power had been turned off, following what seems to have been an electrical short circuit, where smoke was emanating from a power point. I can understand why the power was turned off in that case. The communications that went out included the following: Thanks for all the input. What Joy doesn’t explain is the call she made to me immediately after David switched off the switches. As is often the case with Joy, she will provide half the story to suit her end. Thi[s] is dishonest. I’ve seen this as a pattern several times. Joy said several times in no uncertain terms she needs to be consulted first before electricity is switched off. I stated in the call the house could have burnt down and there was potential danger to life. She was still adamant that she should be consulted first. She proceeded to shout at me and abuse me on the phone. ... I sent her an email past this point stating that this was unacceptable, not just the behaviour towards me but towards David and consideration towards the household. Joy will continue to try convince all she is innocent. Of course. Joy is very good at this and I can see this from the last several months of interactions with her. He is very one sided and self serving in her views and refuses to give in to anyone else’s view. There has been too many repeated patterns here that not all have visibility of and I can’t ignore any more.
The landlord accepted that in hindsight, he should have been more moderate in that communication, and I agree there. But I also accept that this was a communication in a series of communications in relation to a concerning electrical incident, and I can accept that would have played into what was written. But I do not accept that the landlord set about sending that communication intending to upset the tenant, which would be a hallmark of a harassing communication.
I have also considered whether the landlord had allowed any of the other tenants to breach the quiet enjoyment of Ms Li, and I find he did not. Ms Li did raise some allegations of concern in relation to other tenants, which if correct would be concerning. I am minded that while I have heard evidence from Ms Li on those allegations, I have not heard evidence from any of the tenants said to have caused that behaviour, I record that for fairness. But assuming that Ms Li’s allegations were correct, then I believe the landlord did not ignore that behaviour and he acted reasonably in the circumstances. At the hearing the landlord produced an email which he advised was sent to the male tenants. In short, that email is dated 29 November 2023 and reminds the occupants of the need to be respectful and moderate behaviour toward females in the house, and the inappropriateness of making sexual or derogatory comments. The email concludes: I REALLY want Joy to feel totally at home and secure and like she has her own privacy. She has had it rough. I really would like us all to be overly respectful while at the same time giving her space. Even if she is being polite, don’t always take her politeness as a yes. Try to balance that out. I have NO bad feedback from Joy BTW but I wanted to be preemptive.
The approach of working with other tenants following behavioural complaints in a boarding house context was appropriate.
I have not seen any evidence of the landlord harassing the tenant, or permitting harassment, and to that extent find no basis to order the landlord to pay the tenant exemplary damages. 9 and 10. Exemplary damages for unlawful entry
The tenant seeks exemplary damages for unlawful entry on the part of the landlord.
At the hearing, it was apparent that neither the landlord nor tenant realised the law that applied for entry into a boarding house. I explained that to both parties before receiving the below submissions.
The tenant states that the landlord used the fridge and had jam in the fridge, and would use the gym and kitchen from time to time.
The landlord disputes using the fridge but accepts he may have had jam in the fridge. The landlord accepts that he would use the gym from time to time and the kitchen to make tea but he cannot recall cooking eggs as the tenant described. Analysis
The rules around landlords entering a boarding house are very different to a non-boarding house tenancy. Section 66Q of the RTA confirms: (1) The landlord of a boarding house may enter the boarding house at any time. (2) The landlord must not use the facilities of the boarding house for his or her own domestic purposes unless the landlord resides at the boarding house.
There are restrictions that apply for the landlord entering the tenant’s specific boarding room, but the tenant confirmed she had no concerns in that regard, her issue was with the gym and kitchen.
The term ‘facilities’ with respect to boarding houses, is defined in section 66B of the RTA as follows: facilities means the facilities provided by the landlord of a boarding house for the shared use by tenants of the boarding house, such as— (a) toilet and bathroom facilities: (b) cooking facilities: (c) general living, dining, or recreational areas: (d) laundry facilities: (e) lifts and stairways: (f) rubbish storage and rubbish disposal facilities: (g) appliances for heating or cooling premises: (h) communication facilities: (i) lawns, gardens, and outhouses: (j) any land or buildings intended for use for storage space or for the parking of motor vehicles
The kitchen and gym would meet the definition of facilities of the premises, and I could accept they would have been used by the landlord for ‘domestic purposes’, and I would accept that the landlord has probably breached his obligation under section 66Q.
However, again I decline to order exemplary damages for this breach because I am not persuaded that the landlord intentionally breached his obligations to the tenants here. I accept the landlord had an honest belief that he was able to use these facilities, and to that extent I find an intentional breach has not been proven.
Retaliatory termination notice
The tenant submits that the termination notice was retaliatory, and started when she asked the landlord not to touch her belongings, and discussion about keeping her snacks in a drawer.
The landlord states that when he opened the drawer he found what he considered to be mouldy bread, but nevertheless he states that there were problems with the tenant over many months, as discussed in this decision above. The landlord disputes that the notice was retaliatory, rather it resulted from disruption to the wider tenancy and himself. Analysis
Section 54 of the Residential Tenancies Act 1986 holds that the Tribunal may declare a notice to terminate a tenancy of no effect, and retaliatory if: In giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power , authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.
The Tribunal in Easton v Marks Auckland TT 229/87, 27 May 1987 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions. The Tribunal in that case noted that: It is one thing to say that an owner of a property has grown somewhat tired of his property being tenanted to persons, it is another thing to say that the tenants gave impetus to, or incited, or impelled the owner to give the notice to quit.
The Tribunal found that the landlord, in giving notice of termination, was therefore not motivated wholly or partly by the tenants’ exercise of powers within the meaning of s 54.
It is relevant at this point to consider the legal criteria that applies for terminating a boarding house tenancy. Section 66U applies, and sets out the criteria for termination by a landlord. That confirms a boarding house landlord may: a. Terminate a tenancy immediately when there have been serious actual or threats to cause serious disruption, damage or danger to people. b. On 48 hours’ notice when there are issues with rent or the premises being used for an illegal purpose; or c. “on 28 days’ notice if no reason is given”
It is the final criteria that would apply here, that a boarding house landlord can terminate a tenancy with 28 days’ notice. While the landlord gave the tenant reasons in the termination notice, he was not required to do so.
While no reason to terminate the tenancy is needed, the notice however cannot be a retaliatory termination notice.
When I consider the information before me, I am not persuaded that the termination was given in whole or in part on the tenant exercising any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or RTA or other Act or any complaint by the tenant against the landlord relating to the tenancy.
While the landlord was not required to give reasons in the termination notice, he did, he confirmed the notice was given because of repeated disruption to himself and the other tenants.
That was consistent with an email sent to the tenants on the day of the termination where he advised: Due to repeated instances with Joy being the centre of such issues, I have made the hard decision to give her notice. I have monitored this over months and see this as the best interest of the household. Normally I would involve the household in this decision. I won’t this time as I have been exposed to many of Joy’s issues first hand. To give a little context, Joy calls and emails me frequently. Each instance has been one-sided, dangerous for the household and toxic in general to the household. After dealing with a potential electric fire hazard and safety to people’s lives, in which Joy was shouting at me on the phone stating she has the right to be consulted first before electricity is switched off, I sent her a written warning. The latest incident where Joy has made a large issue out of me putting food on the bench top that I found in a TC drawer is unacceptable. It clearly shows how she treats the household and I see Joy as key to a toxic environment at Bight right now. Feel free to call me to discuss.
I am also minded that the evidence is that the landlord had offered to withdraw the termination notice if the tenant was agreeable to moderating her behaviour. Again that is strongly supportive of the landlord’s explanation at the hearing as being the reason for the termination.
The consistency between the termination notice, the email to the other tenants, the offer to withdraw the notice and what the landlord explained at the hearing as the reasons for terminating the tenancy, leads me to accept the reasons set out by the landlord as being genuine.
A notice of termination given for genuine and fair reasons will not be considered retaliatory. For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that the notice was not retaliatory. Judge Ongley stated he was: ... quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her. She found that Mr Kerr was not a suitable tenant for those flats because he could not tolerate activities by other tenants which Mrs Woodman believed were unavoidable. She believed that she was faced with the alternatives of either having continuous disputes among tenants, or otherwise bringing Mr Kerr’s tenancy to an end. I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.
Prior to 21 February 2021, a landlord in a standard (non-boarding house) tenancy was able to end a tenancy with 90 days’ notice for no reason. That ability was removed by Parliament, and following that date there were only limited reasons a landlord could terminate a standard tenancy. However Parliament did not make those changes to the termination provisions for boarding house tenancies. That is likely to be a reflection of the special circumstances that boarding house landlords face, where unfortunately needing to terminate a tenancy to maintain harmony in the boarding house may be at times required.
So while the landlord did not need to have a reason to end Ms Li’s tenancy, I accept the reason he gave, and I do not consider the reason was in retaliation for an action on the part of the tenant to be deemed a retaliatory termination notice. This claim has not been established so is dismissed.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppression. I do not conclude that the tenant has been substantially successful in the proceeding, so name suppression is declined.

Tenancy Tribunal case 4679089 — Mould & damp at 15 Bight Road, Long Bay, Auckland 0630

At a glance

Tenancy Tribunal case 4679089 — Mould & damp at 15 Bight Road, Long Bay, Auckland 0630

At a glance

Claims & awards

Order

Reasons

BACKGROUND

TENANCY TYPE

WITNESS EVIDENCE

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

TENANCY TYPE

WITNESS EVIDENCE

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions