What was Tenancy Tribunal case 4683729 about?

This case concerned a cleanliness dispute.

How much money was awarded in case 4683729?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4683729?

The primary dispute was Cleanliness. Related themes: Exemplary damages, Unit Titles.

Where can I read the official tribunal order for case 4683729?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12565833-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4683729 about?

This case concerned a cleanliness dispute.

How much money was awarded in case 4683729?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4683729?

The primary dispute was Cleanliness. Related themes: Exemplary damages, Unit Titles.

Where can I read the official tribunal order for case 4683729?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12565833-Tribunal_Order_Redacted.pdf.

3B Arizona Grove, Brooklyn, Wellington 6021 Tenancy Tribunal Case 4683729 — Cleanliness

Reasons

The Tribunal must consider an application filed by the landlord against the tenants. The tenants filed an earlier claim against the landlord, and were successful in a number of the claims. The landlord has appealed that decision to the District Court, and an appeal is now pending. For the reasons I will set out shortly, the landlord has used her application, in large measure to go behind the earlier Tribunal order (now at appeal), and she cannot do that. But there are two claims that the Tribunal would have jurisdiction to consider, that relates to a claim for reletting costs, and a breach of privacy.

BACKGROUND

The parties entered into a fixed term tenancy agreement, for a tenancy commencing on 2 February 2022, ending on 7 February 2024. Early into the tenancy, the tenants requested to leave the tenancy early, and that was agreed by the landlord.
When the tenancy had ended, the tenants applied to the Tribunal for various orders against the landlord. The Tribunal, Adjudicator Koller, issued a decision dated 20 February 2023. The decision did the following: a. Dismissed a claim for unlawful entry. b. Dismissed a claim for breaches of the landlord’s subletting obligations. c. Ordered reimbursement of carpet cleaning paid by the tenants. d. Ordered exemplary damages for unlawful clauses in the tenancy agreement. e. Ordered exemplary damages for failure to provide an itemised account for reletting costs.
The order also released the bond, and ordered tenant name suppression.
The landlord applied for a re-hearing of that decision, but the rehearing application was dismissed when the landlord did not appear at the hearing to consider whether a rehearing would be granted. That decision also carried with it a right of appeal should the landlord have disagreed with it.
As noted, the landlord appealed Ms Koller’s order to the District Court. I note that the appeal is yet to be heard, with Judge Kelly awaiting the outcome of the landlord’s application – this decision, before proceeding with that appeal.
Regressing slightly, on 13 September 2023 the landlord filed her own application with the Tribunal, that being the subject of this decision. 11 claims were filed and served on the tenants, which I will address separately below. Procedural note
I record that the hearing today, 11 July 2024 was challenging. It was very clear that the landlord primarily wished to use this hearing as an opportunity to challenge or go behind the decision of Adjudicator Koller. I explained to the landlord that she cannot do that, if she wishes to challenge the previous adjudicator’s decision-making or the process in that hearing, then that needs to be done in the course of the appeal which is now pending.
I confirmed to the landlord that she could not make submissions to me around the correctness or otherwise of Adjudicator Koller’s decision, I could not consider those submissions, and to attempt to relitigate the Tribunal’s earlier decision would be an abuse of process. Despite reminding the landlord on multiple occasions that I will not accept submissions of that nature, the landlord did not take heed of that direction and continued to attack or go behind Ms Koller’s decision, or the procedure around that decision, including seeking to have me say aspects of it were wrong.
Proceedings in the Tribunal are required by the Residential Tenancies Act 1986 (RTA) to be expeditious, which argues against parties using Tribunal time to ventilate matters of general complaint, which cannot be adjudicated, or are not the subject of any valid claim.
One of the statutory mechanisms to achieve expedient proceedings, is section 97(6) of the RTA which confirms that: The Tribunal shall have power to refuse to accept any evidence or submission that is irrelevant or repetitious.
In the course of the hearing today, this power was used to focus on claims that would be within the Tribunal’s jurisdiction to consider, or more particularly to move on from submissions or evidence that were irrelevant or repetitious. I took the approach of requiring an identification of an arguable breach on the part of the tenants upon which each claim could be considered, and if no arguable breach of a legal obligation was identified, I advised the claim would be dismissed.
It was clear to me that Ms Fisher considered that the direction that she could not pursue matters around Ms Koller’s decision, was unfair to her. I am not convinced any unfairness exists.
Putting to one side that Adjudicator Koller’s decision was binding on the parties – and this Tribunal, it is a settled principle of law, that courts and tribunals cannot consider matters that are academic, moot, or not the subject of any actual controversy. I note the judicial review of Body Corporate 375933 v Tenancy Tribunal and Wellington Waterfront Luxury Apartment Limited [2017] NZHC 1619. Justice Williams needed to consider whether the Tenancy Tribunal should have struck out (effectively dismissed without hearing the claim) a claim, which had become moot since it was filed. Justice Williams confirmed that the usual civil law expectations seen around moot proceedings in the courts applied in the Tenancy Tribunal. [14] It has long been the case that the Courts (at least) will not answer “purely abstract questions in anticipation of an actual controversy”, whether in future negotiations or court action. This principle was reiterated relatively recently in Omaha Beach Residents Society Inc v Townsend Brokers, in which the plaintiff sought clarification of the effect of a restrictive covenant. O’Regan P found: [T]he courts will normally decline as a matter of discretion to issue a declaration in a case in which the factual context is either hypothetical or a prediction of future events. [15] Although both cases occurred in the context of a formal application for declaratory relief under the Declaratory Judgments Act 1908, the principle is broadly applicable and referable to the use of scarce court time, as well as the limited role of the courts in our system of law and government, a subject to which I will return below. [16] There is no reason, in my view, to consider that the Tenancy Tribunal is in any different position to the ordinary courts in the respects described by McCarthy P and O’Regan P.
The High Court went on to extensively discuss the authorities around mootness, adopted the approach from a District Court decision (Simpson v Whaktane District Court (No 2) [2006] NZAR 247, in which the Judge noted: It is a well recognised common law principle that it is contrary to public policy for the Courts to entertain proceedings where there is no actual outstanding issue in existence between the parties. The Courts are not, in general terms, available to provide a free or subsidised opinion service to the public. Court time is a precious commodity, and cannot sensibly be spent on deciding matters that only have academic interest, or which prove a point of opinion rather than resolve a dispute.

RELEVANT GENERAL 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), 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.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
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 landlord has made a number of claims for exemplary damages. 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 RTA. Importantly, exemplary damages cannot be ordered for any breach of an obligation between the parties, only for a specific and defined unlawful acts.
To give an example, section 44A(1) relates to an assignment of the tenancy, and subsection 3 confirms that when a landlord takes steps to recover expenses without providing the tenants with an itemised account, the landlord “commits an unlawful act”. If the Tribunal accepts that there has been a breach of that obligation, then it is deemed an ‘unlawful act’ meaning only then the Tribunal could order exemplary damages.

ANALYSIS

The landlord has applied for 11 specific orders, and I will address them in turn.
Costs for breaking tenancy
The landlord has claimed $800.00 being expenses for reletting the tenancy, which is often referred to as ‘break lease costs’. The landlord states that the account (presented in the hearing) was given to the tenants on 10 November 2024.
The tenants state that they undertook the work such as creating the ad and undertaking viewings of the tenancy. The tenants do not dispute that they should pay something, but they consider that $800.00 is too high.
In response, the landlord states a reference from a property manager indicates that costs in the range of $500 - $1,000 would be expected.
There is no dispute from the tenants that they are liable for costs around parting with possession of the tenancy, they agree they should pay something, but the tenants dispute the amount the landlord has claimed.
Section 44A of the RTA confirms that a landlord can claim expenses incurred when the landlord agrees to assign, sublet, terminate or the tenants parting with possession otherwise. That provision states at subsection 1: A landlord who consents to an assignment under section 43B, to a subletting or parting with possession under section 44, or to termination of the tenancy in accordance with section 50(1)(d) is entitled to recover from the outgoing tenant any expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession, or termination.
In order to claim those expenses, the landlord must submit to the tenants an itemised account (subsection 2). The landlord produced that itemised account at the hearing today, and the tenants confirmed they have received it. In short, the itemised account relates primarily to the landlord’s time in undertaking a range of actions such as undertaking inspections, checking bank deposits, drafting tenancy agreements, responding to emails etc. The landlord has claimed for 16 hours of her time at $50.00 per hour.
Section 44A was a provision inserted into the RTA in 2021. Prior to that it was common for landlords to charge 1-2 weeks of rental by way of compensation for releasing a tenant from a fixed term tenancy. Parliament restricted that practice, to only allowing recovery for “expenses reasonably incurred” and on presentation of an account.
The question then becomes, what is meant by ‘expenses reasonably incurred’. That term is not defined in the RTA. In my assessment, the operative word is ‘incurred’. To put that another way, if the landlord does work herself, has she ‘incurred’ the expense? In my view the answer to that would be ‘no’.
I have considered the reference ‘Words and Phrases Legally Defined’ which gives the following definition in relation to law in Australia: The words ‘incurs’ and ‘debt’ are not words of precise and inflexible denotation...the words ‘incurs’ take its meaning from its context and is apt to describe, in an appropriate case, the undertaking of an engagement to pay a sum of money at a future time, even if the engagement is conditional and the amount involved uncertain [Hawkins v Bank of Chicago (1992) 7 ACSR 349]
In this case, there is no undertaking that Ms Fisher has with herself to pay herself for work, in fact as a matter of contract law, Ms Fisher cannot contract with herself, and incur a debt she is liable for against herself.
There is also reference to the Canadian decision of Hasson v Hamel (1977) 16 OR (2d) 517. In that case the dispute was over whether parents had contracted with their daughter for particular services. The evidence was that there was no contact with the daughter, so the Court confirmed that the parents had not “incurred” any liability.
In New Zealand, there are a number of statutes that use the words “expenses reasonably incurred” but those generally relate to the recovery of amounts actually paid or some other liability incurred.
I also note that the Blacks Law Dictionary defines ‘incur’ as meaning: To suffer or bring on oneself (a liability or expense).
The end result is that I cannot interpret section 44A as allowing Ms Fisher to recover, or charge her time to the tenants because that is not an amount or debt she has incurred as a liability or expense, that can then be passed onto the tenants.
However, I do accept that there would be some actual amounts that could fall into the category of being recoverable. Taking into consideration that the tenants accept they should pay something toward the departing the tenancy, I have determined that an award of $200 would be reasonable. I recognise that the landlord has not set out specifically what additional costs she would have incurred, but I accept the landlord has for example undertaken to Trade Me advertisements which generally must be paid for, there would be travel and vehicle use, and probably some other disbursements. Again noting the tenants accept some responsibility to make a payment, I have determined that a figure of $200 would be reasonable, and that is ordered.
Cancellation of exemplary damages order from Adjudicator Koller
The landlord seeks an order cancelling the exemplary damages order from Ms Koller in relation to failing to provide the itemised account.
This is plainly an attempt to go behind a binding Tribunal order. This would be an issue for appeal, it cannot be considered by way of a new claim from the landlord.
This application is dismissed.
Exemplary damages for earlier statements
The landlord seeks an order for exemplary damages in relation to statements made by the tenants at the earlier Tribunal hearing around the assignment. The landlord considers the tenants to have been dishonest in those statements.
Exemplary damages can only be ordered where there is a breach of a defined unlawful act (section 109). The landlord was unable to define what unlawful act has arisen in this case, or more specifically, what statutory breach has arisen that parliament has defined as an unlawful act. Without a statutory and unlawful act being identified, the exemplary damages claim must fail.
Notwithstanding that finding, clearly this is an attempt to go behind Ms Koller’s findings, which would be a matter for appeal, not a new application from the landlord.
This application is dismissed.
Exemplary damages for providing misleading information
The landlord seeks an order that the tenants pay exemplary damages for making ‘false statements’ in their application.
Again the landlord could not identify a statutory unlawful act, upon which exemplary damages could be considered. Even then, this argument would be better placed in the appeal before the District Court.
This application is dismissed.
Exemplary damages for dishonest behaviour of tenants around entry
The landlord seeks exemplary damages for the tenants stating the landlord entered the tenancy without permission.
Again the landlord could not identify a statutory unlawful act, upon which exemplary damages could be considered. But further, this relates to a matter that was before the Tribunal earlier, so could not be considered under the landlord’s claim.
This application is dismissed.
Order that the landlord is not responsible for carpet cleaning
Ms Koller made an order that the landlord reimburse the tenants the carpet cleaning costs they paid. What the landlord is seeking, is for me to make an order she is not liable for that cost. That amounts to a challenge of Mr Koller’s decision, and is a matter for argument in the District Court.
This application is dismissed.
“An order for unlawful clauses to be reimbursed”
The landlord seeks an order that she be reimbursed the $600.00 ordered by way of exemplary damages by Ms Koller.
This is a matter for challenge at the appeal of Ms Koller’s order, I cannot make any order overturning the Adjudicator’s findings.
This claim is dismissed.
Compensation for a breach of privacy
The parties agree that at the time of the final inspection, the tenants audio- recorded their conversation with the landlord, without the landlord’s knowledge. That audio recording was later used by the tenants in the hearing before Ms Koller.
The landlord states that this case turns on the question of which tenant took the recording because it was on private property. The landlord states that the parties were subject to the tenancy agreement which refers to the Privacy Act 2020.
The tenants confirmed that they had recorded the conversation with the landlord because they had concerns with the landlord. The tenants confirmed there were three of them present (that is the landlord and two tenants), and the part of the conversation recorded, involved all three of them present at the time as the conversation.
In this case, the landlord states that the recording of her conversation without her knowledge offends the Privacy Act, but she has not referred me to any particular provision she considered to have been breached. The landlord states that she has been in communication with the Privacy Commissioner’s office, but has not provided me any written advice or opinion from them.
However, even if the landlord's position was correct, and there is a prohibition from covertly recording conversations (I record that I do not accept there is a general prohibition), then the covert recording in this case would fall within an exception to the Privacy Act. The relevant obligations that would exist between the parties would be those set out in what the legislation defines as “Information Privacy Principles” (IPP’s) in Part 3. However there is an exception for when the IPP’s will not apply, and of relevance is section 27, when the information is collected (the recording) by an individual, and is “solely for the purposes of, or in connection with, the individual’s personal or domestic affairs”. I would have no difficulty in concluding that recording a conversation with one’s landlord, would relate to personal or domestic affairs.
There is a further exclusion of the exclusion in section 27(3), that: the exemptions in subsections (1) and (2) do not apply if the collection, use, or disclosure of the personal information would be highly offensive to a reasonable person.
I do not consider that any reasonable person would consider that the recording of a conversation with a landlord, in circumstances where there are concerns with the landlord, would be highly offensive.
Therefore, I cannot see any breach of a Privacy Act obligation
The landlord also referred me to a general legal information found on the internet from the Citizens Advice Bureau, stating that: Under the Crimes Act it is illegal to record a conversation that you are not participating in, without the consent of the people in the conversation.
From what I can understand, the landlord takes the position that it needed to be determined who precisely made the recording, and whether what they recorded was speech or conversation that they had with the landlord. For example, let’s say Tenant A made the recording 1 , it is the landlord’s position that Tenant A could have recorded her conversation with the landlord, but not the conversation of her co-tenant Tenant B who was standing next to her.
In my view, that could not be correct. From what I can work out, the conversation involved both tenants and the landlord, and it would be artificial to consider that the tenants could only lawfully record what they said or reply to what they said.
Furthermore, it must be the case that when Ms Fisher made any statement during that conversation in the presence of both tenants, she must have 1 I use that as an example, I do not know which tenant made the recording. reasonably believed her words would be received by both tenants as part of that conversation.
The prohibition on intercepting personal conversations is found in section 216B of the Crimes Act, but that provision confirms there is no prohibition if the person intercepting (recording) the conversation is a party to the conversation. Plainly both tenants were parties to that conversation that was recorded.
I find there is no breach of any obligation from the tenants in terms of recording the landlord, this claim is dismissed.
Order around bond lodgement
The landlord seeks an order saying that she did not cause “any great delay” in relation to the tenant’s bond.
This claim does not relate to any legal obligation the tenants have to the landlord, and I cannot see any rightful basis I could make a declaration on this matter.
This claim does not relate to a matter I can adjudicate under the RTA, so it is dismissed.
Refund of filing fee
The landlord seeks an order that the filing fee be refunded.
The Tribunal can order the filing fee be refunded if she was wholly or substantially successful in the proceeding. There were in effect 10 claims, the landlord has had partial success in only one.
Therefore refund of the filing fee is declined.
Refund of filing fee for appeal
The landlord seeks an order that I require the tenants to pay her the $200.00 she paid for the appeal of Ms Koller’s original order.
This would be a matter to be decided at the District Court. Costs are normally decided once a decision has been reached (meaning the appeal has been decided by the Judge), and it is that decision maker who decides if costs will be awarded. This is not a matter for the Tribunal.
This application 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 landlord has applied for name suppression. Because the landlord has been unsuccessful, landlord name suppression is declined.
No other factors arise which would lead me to apply my discretion otherwise to order name suppression for the landlord.
However, Adjudicator Koller ordered name suppression for the tenants, and given the proceedings are related, I order continued name suppression to apply for the tenants only.

Tenancy Tribunal case 4683729 — Cleanliness at 3B Arizona Grove, Brooklyn, Wellington 6021

At a glance

Tenancy Tribunal case 4683729 — Cleanliness at 3B Arizona Grove, Brooklyn, Wellington 6021

At a glance

Claims & awards

Reasons

BACKGROUND

RELEVANT GENERAL LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Reasons

BACKGROUND

RELEVANT GENERAL LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions