What was Tenancy Tribunal case 4704211 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $3,000.00 immediately in accordance

How much money was awarded in case 4704211?

Compensation: Retaliatory Notice: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant

What type of tenancy dispute was case 4704211?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4704211?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10118156-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4704211 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $3,000.00 immediately in accordance

How much money was awarded in case 4704211?

Compensation: Retaliatory Notice: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant

What type of tenancy dispute was case 4704211?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4704211?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10118156-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4704211 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4704211 — net $3,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: retaliatory notice	$2,000.00	retaliatory notice
Compensation: retaliatory notice	$1,000.00	retaliatory notice
Net award	$3,000.00
Total payable by Landlord to Tenant	$3,000.00

Claims and awards in Tenancy Tribunal application 4704211 — net $3,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: retaliatory notice	$2,000.00	retaliatory notice
Compensation: retaliatory notice	$1,000.00	retaliatory notice
Net award	$3,000.00
Total payable by Landlord to Tenant	$3,000.00

Order

[The landlord/s] must pay [The tenant/s] $3,000.00 immediately in accordance with the following table:
All other applications are dismissed.

Reasons

The most recent hearing of these applications was attended by both parties, and set to consider the following applications filed by [The tenant/s]: a. A work order, compensation and exemplary damages relating to her heater. b. Compensation and exemplary damages relating to the termination notice. c. Compensation and exemplary damages for a breach of quiet enjoyment. d. Compensation and exemplary damages relating to allegedly false information that had been provided.
[The property manager] represented [The property management company] and [The owner’s agent] acted on behalf of the [The trust]. [The owner’s agent] is the power of attorney for his mother who is trustee and beneficiary of the trust.
This tenancy has had a protracted and stressful history for both parties. It has been the subject of numerous applications to, and decisions of the Tribunal since its conception in July 2023. The most recent being the orders on 27 November 2023 declaring the termination notice retaliatory and the dismissal of the landlord’s application for a rehearing on that matter dated 26 February 2024.
The tenancy has now ended after its original six-month fixed term went periodic and then the parties agreed that [The tenant/s] could provide two days’ notice to end. [The tenant/s] vacated in late February despite her need for rental accommodation continuing (she is temporarily displaced from her home).
[The tenant/s] is the applicant and accordingly the burden of proof lies with her. What this means is that she must establish to the civil standard of the balance of probabilities, that her claims are made out. Put another way, she must persuade me that her version of events is more likely than not to be correct.
The evidence and submissions on these matters has been extensive. The parties should be aware that I have considered it all, including all the submissions post hearing, however I have not necessarily referenced it all in this decision as doing so would be unnecessary. To be clear, oral evidence submitted at all three hearings of these applications (24 November, 26 February and 8 March) has been considered, alongside all submitted documentary evidence, including evidence submitted post 8 March hearing.

Should orders be made regarding the heater?

On 29 September [The tenant/s] made an application to the Tribunal (4670366) for a work order to repair the heater on the basis it did not work adequately, nor did it meet the Healthy Homes Standards. That application was dismissed by the Tribunal on 6 October.
[The tenant/s] applied for a rehearing of the findings on a number of grounds which was dismissed by the Tribunal by order dated 22 November. She also appealed the decision however that appears not to have been accepted by the District Court.
[The tenant/s] application (4791248) filed in January this year seeks a work order to fix the broken heater and compensation and exemplary damages for the issue. [The tenant/s] submits that the initial adjudicator did not examine whether the heater was functioning sufficiently, only whether it met the Healthy Homes Standards.
The adjudicator stated at paragraph 2 of her decision that the question she had to consider, among others, was whether the gas heater was working as it should. She found at paragraph 8 that the heater complied with the Healthy Homes Standards, and at paragraph 9 by accepting the trade’s evidence provided by the landlord, that it was in good condition and could continue to be used. She also found there to have been no breach of the Residential Tenancies Act 1986 (RTA) by the landlord and as such declined to award compensation.
Whilst I accept [The tenant/s] submission that the issue was not resolved for her as she is of the view that the heater remained malfunctioning, as discussed at the hearing I consider I am unable to re-hear it for her. The reason for this is that her second application is essentially the same as her first, and that has already been decided.
The common law principal of res judicata explains my finding. Essentially it states that once an issue has been litigated, it cannot be again. The Butterworths definition expresses it clearly, as follows: " a res judicata is a decision pronounced by judicial tribunal having jurisdiction over the case and the parties which disposes once and for all of all the matters decided, so that except on appeal, they cannot afterwards be re-litigated between the same parties or their privies."
As also explained in Nottingham v The Real Estate Agents Authority [2023] NZCA 233 “The general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal.” 1
Accordingly, this claim must be dismissed.

Should exemplary damages be awarded because of the termination notice?

[The tenant/s] has filed claims for compensation and exemplary damages relating to the termination notice that has been declared retaliatory by the Tribunal on 26 1 Paragraph 8 February 2024. 2 She has made these claims on the following alleged breaches of the RTA: i. Section 60AA of the RTA: A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application. ii. Section 54(3) of the RTA: The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) (i.e. retaliatory) to be of no effect. iii. Section 38(3) of the RTA: Contravention of subsection (2) (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.) in circumstances that amount to harassment of the tenant is hereby declared to be an unlawful act.
I consider each claim separately however note that where there are or may be multiple breaches of the RTA for the same action, only one order of exemplary damages may be made. 3 Section 60AA
Pursuant to section 60AA a landlord must not give a notice to terminate the tenancy knowing they are not entitled to do so. Doing so without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. 4
This section was inserted into the RTA by Parliament on 11 February 2021 by section 40 of the Residential Tenancies Amendment Act 2020 (2020 No 59). It came alongside the amendments to section 51 of the RTA which essentially removed a landlord’s right to terminate a tenancy without having specific reasons for doing so (known colloquially as the “no fault terminations”). Section 60AA therefore is designed to punish and deter those landlords who act to terminate a tenancy when they do not have grounds to do so pursuant to section 51 of the RTA. 2 Application TT4704211 3 Gardiner v Upland Bay Investments Ltd DC Wellington CIV-2014-085-13, 27 August 2014.pdf & Manage My Rental Limited v Baxter [2015] NZDC 12011 4 See section 60AA and Schedule 1A RTA.
I am not satisfied that this section is relevant in these circumstances. Firstly, section 54 provides statutory deterrence in the instance of a retaliatory notice, and it was not the intention of Parliament to have two sections to the same end.
Secondly, I am satisfied that [The owner’s agent]’s intention was to sell the property upon the conclusion of the tenancy. He has signed a sales agreement with an agent and since [The tenant/s] has vacated, has taken steps to ready the house to sell. He has provided clear evidence that running a rental property on behalf of his parents’ trust from another city has been too challenging which is why he is selling. I accept his evidence of his intention in this regard.
[The tenant/s] submits that she was told that [The owner’s agent] was out of money from the commencement of the tenancy therefore his claim that he realised in October that the arrangement was not financially working is misleading and as such his reason for termination cannot be accurate. The evidence has not established that [The owner’s agent] did not have the funds to run the tenancy from early on. He was being circumspect about how he spent his money which he is entitled to do, however he was not declining to attend to maintenance for financial reasons.
Accordingly, I dismiss the claim for compensation and/or exemplary damages pursuant to section 60AA as it has not been established that the notice was provided knowingly without reason. Section 54
On 27 November I declared, on the basis of the evidence available to me at that time, that the termination notice was retaliatory. Accordingly, the provision of that notice was an unlawful act. Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages up to a maximum of $6,500.00 where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness, the giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. 5
In considering the criteria outlined in section 109 of the RTA, I weigh the following: a. Both [The owner’s agent] and [The property manager] have made strong submissions as to their intention in serving the notice. Whilst they accept the Tribunal’s decision, they are clear that they were not trying to end the tenancy in retaliation for actions [The tenant/s] had taken. [The owner’s agent] says he was following advice to market the property for sale in the summer which would be when the tenancy ended. [The property manager] 5 See section 109(3) and (3A) Residential Tenancies Act 1986. says they had to issue the notice on the day they did in order that it be sufficient notice to come into effect upon the expiry of the fixed term. 6 b. The effect on [The tenant/s] however, cannot be underestimated. It has caused her considerable stress which I detail further below, irreparably damaged her relationship with her landlord and contributed to her relocating prematurely. c. No evidence has been provided indicating that the landlord has been found to have issued such a notice previously, this therefore appears to be their first offence. d. Parliament takes the issuing of retaliatory termination notices extremely seriously as shown by the high level of exemplary damages available. Tenants, who are generally in the position of holding lesser power than their landlords, are intended to be statutorily protected in the assertion of their rights within the law. e. Parliament also specifically removed the element of intention in the instance of awarding exemplary damages for such a notice, a criterion that is required for every other unlawful act under the RTA. This demonstrates their intention to punish and deter every landlord who issues such a notice.
Given the above, I am clear that Parliament intended that every finding of a retaliatory notice should be punished by an award of exemplary damages. Bearing that in mind, but also the points discussed above, I make an award of $2,000 which I find appropriate in the circumstances. I consider that this notice is at the lower end of the scale because of the other reasoning [The owner’s agent] had for issuing the notice.
[The tenant/s] also seeks $3,000 compensation and a reduction of 50% rent from 4 October for the stress and pressure she was put to because of the notice. Exemplary damages are different to compensation. The former is intended to penalise, the latter to reinstate the victim of a breach, so far as money can do it, to a place they would have been in without the breach.
[The tenant/s] says it was extremely stressful to have to look for accommodation over summer, especially given she had relatives staying with her who had travelled across the world to see her. She had not expected to have to look for alternative accommodation as her understanding was that upon the expiry of the fixed term the tenancy would be periodic to align with her accommodation needs. She thought this was the case as the landlord had agreed to the tenancy after she had specifically sought a six-month tenancy that converted upon its expiry to periodic. This is what she requested and thought she had got by their agreement to her six-month fixed term. 6 Pursuant to section 60A(2)(d) of the RTA
She submits that she missed two lots of two months of her PhD study because of the stress this termination notice created. This she says is the equivalent of $3,000.
[The owner’s agent] submits that [The tenant/s] is transferring her stress about her own home’s issues to this tenancy. He also says this process has been extremely stressful and expensive for him as well. He considers he was acting in good faith and is now being penalised for that.
[The property manager] says that [The tenant/s] has brought on a lot of the stress she is suffering herself and did not need to take things as far as she has. In this respect she references [The tenant/s] second application regarding the heater. She says that [The tenant/s] has not incurred costs as her insurance company is paying the rent and given the number of times trades had to be rescheduled because [The tenant/s] was working at home, she disputes the claim that she has had to protract her study time.
She further makes the submission that section 54 is designed to protect tenants from unscrupulous landlords, which she says they are not. It was never their intention to upset [The tenant/s], [The owner’s agent] simply realised the reality of the situation he was managing and had a genuine reason to end the tenancy. In this respect she refers to the Tribunal decision of NZTT 4308815, 4311503, 4316961, 4317173 which references the District Court decision of Carver v Kiesanowski [2021] NZDC 3939 at paragraph 39: “The purpose behind empowering the tribunal to declare a termination notice retaliatory and of no effect is to prevent landlords from discriminating against those who assert their rights as tenants or make complaints by ending their tenancy. The provision is designed to protect tenants but not from the legitimate decision a landlord may make to sell their property or no longer operate it as a rental property.”
Those cases however refer to the finding of a notice being retaliatory, not the ensuing exemplary damages. In this instance I have made a finding that it was a retaliatory notice and accordingly must consider how much exemplary damages are just for the unlawful act.
[The property manager] also notes the ways in which they, and [The owner’s agent], have tried to work with [The tenant/s] and make things better for her, in particular: a. By agreeing to a 2-day notice period rather than the statutorily required 28 days. This she says has increased [The owner’s agent]’s costs to [The tenant/s] advantage. b. By reassuring her she can stay as long as she would like. c. By doing things even the Tribunal did not consider were required, i.e., the servicing of the heater.
I do not find it established in evidence that [The tenant/s] is financially at a loss due to the issuing of the notice. I do accept she suffered stress as a result however. The Tribunal has the authority 7 to award damages for stress and inconvenience. It does so on the basis that the law of contract allows such damages where the purpose or one of the purposes of the contract is the peace and comfort of the party and, in the case of a tenant, that is regarded as one of the purposes of a tenancy agreement.
Nevertheless, it is not something that the Tribunal does lightly. The normal rules for damages apply and the tenant must prove breach of an obligation or right, damage, that the damage was foreseeable and that an amount of damages is appropriate.
As a starting point the Tribunal adopts the position that a tenancy agreement involves a relationship: relationships are rarely smooth, and a tenant must expect some disruption or inconvenience from to time to time. Inevitably there is likely to be disruption when a tenancy approaches its end, even if both parties act entirely lawfully. Commonly there is disagreement and negotiation and often this is because of disagreement over rights and obligations. Some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises, and a contracting party has traditionally been deemed to take the risk. Accordingly, when considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest.
The landlord here has breached their obligations in providing a retaliatory notice to terminate the tenancy. Stress and uncertainty were obvious corollaries to the issuing of that notice, particularly given [The property management company] were aware of [The tenant/s] circumstances.
Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775 is a previous case which suggests appropriate bands where making awards for emotional harm damages: “ A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.” 7 77(2)(n) RTA
Adopting that formular, I consider this a situation appropriate to band B. [The tenant/s] had specified the type of tenancy she needed and the reasons for it which ostensibly was agreed to. The parties’ relationship was already difficult and the timing proximity of this notice to the Tribunal hearings exacerbated that conflict. [The tenant/s] had asked for several days’ extension due to her mother’s trip and not only was that request denied, but it was done so in an unsensitive way. [The tenant/s] situation did not appear to have been given any regard in the processes [The property management company] employed around the issuing of the notice.
Based on these reasons, I find that an award of $1,000 compensation is appropriate in these circumstances. S38 – breach of quiet enjoyment
[The tenant/s] further submits that her landlord has breached her quiet enjoyment both with the termination notice and generally 8 . I discuss the claim holistically.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 9 Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded.
Section 38(1) is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable” peace, comfort or privacy of the tenant. There are several circumstances, where the landlord’s rights (such as to sell their property) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure.
[The tenant/s] submits in particular that the property management company have interfered with her rights in the following ways: a. By serving the termination notice in unjustified and unfair circumstances. b. By declining her request for a short extension in an indirect and cursory way thereby disrespecting her circumstances. c. In a phone call with [an employee of the property management company], [The tenant/s] says she was yelled at and hung up on. 8 The claim regarding general harassment was made and accepted orally at the hearing on 24 November 2023. 9 See section 38(2) Residential Tenancies Act 1986 d. By turning the blame to her for issues or saying there is no issue; specifically gaslighting her when she raised a concern and taking a cavalier attitude towards corresponding Tribunal action. e. By failing to action maintenance issues unless they were forced to, i.e., by an application to the Tribunal. f. By engaging with her in a continually antagonistic and confronting way. g. In one interaction [The property manager] was contemptuous when she said, “you will be out of here by January”. h. In one interaction [The property manager] was dismissive of her concerns about the draughts. i. Being told from the outset of the tenancy that [The owner’s agent] would not spend any more money on the tenancy. j. The general tenor of [The property management company]’s communications, or modus operandi (MO) as [The tenant/s] puts it, is toxic and intimidatory. Specifically, she says it is a “constructed oppositional approach”.
She also says that it was a breach of her privacy to have to disclose her personal details in support of her application to the Tribunal. I dismiss this claim at the outset. A landlord cannot be held liable for information a tenant decides to disclose in proceedings of their initiation; that is entirely a decision for the tenant. Further, it could not be foreseeable by the landlord that in issuing a termination notice [The tenant/s] would have to disclose personal details to challenge it.
[The tenant/s] also made the submission that there have been inconsistencies in [The property management company]’s evidence around the instruction from [The owner’s agent] that he wished to sell. I agree that to an extent there has. As follows: a. In the 24 November hearing [The property manager] was asked when [The owner’s agent] told her he wanted to sell. Her answer was the 4 th of October being the day the notice was issued. However, in the 8 March hearing she said they were advised at least a month prior to the issuing of the notice, specifically well before the hearing on 27 September. b. In the 24 November hearing [The property manager] initially said that [The owner’s agent]’s direction to terminate came at the time it did as he was aware he had to issue it then to coincide it with the end of the fixed term. She later (in the same hearing) said that when he told them to terminate, she advised him of the requirement to give 90 days’ notice and that they would need to so immediately to ensure it fell at the end of the fixed term.
Whilst I accept these inconsistencies, I do not find them made with an intention to deceive. Although this was a relatively short tenancy, there was a lot going on. I do however consider that the initial point on when [The owner’s agent] directed [The property management company] to terminate, pertinent.
[The property manager] is adamant that they have not disregarded [The tenant/s] or her needs, saying they have tried to work with her whenever possible and by responding to the considerable number of issues she raised for them. She explains that [The owner’s agent] was happy to repair the lock, but they needed Tribunal guidance as to what type of lock was required. She noted they did service the heater despite the Tribunal saying it was not necessary and references the number of other maintenance issues they addressed.
[The property manager] submits that [The tenant/s] has a personal grievance with [The property management company] and has spent an inordinate amount of time on this ‘campaign’ against them. She points out that [The tenant/s] did not need to take the extreme action she has in issuing a 14-day notice and filing four applications with the Tribunal encompassing many claims. She says the whole process has been overwhelming and they have been doing their best to always do the right thing.
Firstly, I note that the Tribunal order of 6 October also dealt with a claim of breach of quiet enjoyment and the adjudicator there found 10 that to the date of that hearing (27 September) the landlord had acted reasonably. I therefore only consider their actions after that date.
I have discussed the termination notice at length above and as such do not consider it necessary to include it in this discussion. I find that issue has been adequately dealt with. I also decline to consider the process of the maintenance issues here as they have been dealt with separately.
I find that there were some situations when [The tenant/s] was not afforded the respect she deserved, such as the way in which [The property management company] dealt with the extension request. Another example was in dealing with the utilities issue at the outset when [The property management company], particularly [the employee], did not adequately listen to her concern and was unduly sharp with her. As it transpired, [The owner’s agent] did need to take some action to resolve the issue however it took [The tenant/s] a number of discussions with [The property management company]’s employees to get them to address it with him. Had she been adequately listened to from the start the matter would not needed to have been so protracted.
There were also some occasions in [The property manager]’s dealings with [The tenant/s] that were potentially inappropriate. For example, calling her cheeky by email on 31 October and continually emphasizing how difficult she had made the tenancy at the Tribunal hearings. 10 Paragraph 28
However, I find that other instances were misinterpreted such as the discussions regarding the curtains and draughts. [The tenant/s] had been affronted by [The property management company]’s processes from the outset and accordingly did interpret some situations to include malice when none was intended. [The property manager] was entitled to cease conversations with [The tenant/s] on the issue of the heater after the Tribunal had made findings and the trade had assessed it. She was short and to the point with her on occasion which, more than anything else, reflected the nature of the communications to date.
I do not find it established in evidence that [The owner’s agent] was refusing to attend to maintenance because of a lack of money. Trades were sent to address matters raised and a landlord is entitled to set limits on their initial assessments of matters. The discussions regarding the inclusion of the owners’ details in the application is not a breach of s38 as [The property manager] was entitled to raise her concerns with [The tenant/s].
[The property manager] was also entitled to request [The tenant/s] not to engage with contractors directly and rather go through them as they were her contact point, and it was their responsibility to ensure that issues of maintenance were addressed.
[The tenant/s] submits that the extensive discussion regarding the locks demonstrates that [The property management company] were attempting to evade the matter and not meet their responsibility. Having read the numerous documents provided to me on this point, I am satisfied that [The property management company] were attempting to clarify the issue rather than avoiding it. They were not aware of their obligations with respect to the lock (it needed a key to be opened from the inside) and were seeking clarity on that before they took steps. This was one of the points the Tribunal was originally asked to adjudicate.
With respect to the submission that [The property management company]’s MO is intimidatory and disrespectful, I make the following comments: i. I do not accept the reference to a newspaper article regarding [The property management company]’s internal workings as relevant to how [The property management company] dealt with [The tenant/s]. ii. I accept are incongruous with the way in which [The tenant/s] conducts her affairs, but I do not find them inappropriate on the whole.
Looking holistically at the communications between the parties, I am unsurprised that things got strained given the number of emails and issues. During this seven- month tenancy there was only a few weeks when there was not an active application to the Tribunal. At times [The property management company] were short with [The tenant/s] but I do not find that their communications at any stage verged on harassment. They were dealing with a number of complex issues and there were certainly misunderstandings at times.
Having thoroughly considered all the evidence, although I have found that some interactions were not professional or respectful, I do not find that the circumstances meet the high threshold of harassment which is required for an award of exemplary damages.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". 11 Generally, there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient.
I do not consider this was [The property management company]’s intention here, they were simply dealing with [The tenant/s] concerns however did get somewhat frustrated in doing so at times. [The tenant/s] enjoyment of the property was certainly affected by the issues she faced with the property, the landlord’s response and then termination. However, I do not find an award of compensation justified and the statutory requirement for an award of exemplary damages has not been met.
Accordingly, this claim is dismissed.

Has the landlord provided false and/or misleading information?

[The tenant/s] claims compensation and/or exemplary damages on the basis that the landlord has provided false and/or misleading information in the following ways: i. By stating on the tenancy agreement that the owner is [The owner’s agent] – [The trust] when this is incorrect as: a. [The owner’s agent] is not part of the trust; and b. the trust has been dissolved; and c. the certificate of title states that the owners of the home are [The owners]. ii. By stating the owner’s address as c/o [The property management company]’s address rather than theirs. 11 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. iii. By omitting to tell her when she signed the tenancy agreement that the owner had an intention to sell the property. Tenancy agreement
As discussed at the hearing I do not find it established that the tenancy agreement includes incorrect documents. This is because [The owner’s agent] has power of attorney to act in his mother, [The owner]’s stead as she has dementia. This is why he is administering the tenancy to pay her care fees. I do not find it established in evidence that the trust has been dissolved and accept that the names of the trustees are recorded on the certificate of title as they should be given a trust is not an entity able to own land.
As discussed at the hearings, the definition of landlord in the RTA 12 means both the owner and the agent; it is an inclusive term. Accordingly, I find no issue with the contact details of [The property management company] rather than the trustees being recorded. The purpose of the requirement 13 to provide the contact details of a landlord in a tenancy agreement is to ensure the tenant can contact their landlord. As [The property management company] are the property managers here, it is appropriate that they be the contact point for [The tenant/s].
For the reasons above I do not find that the tenancy agreement has been provided with false and misleading information and this claim must be dismissed. Misrepresentation
[The tenant/s] submission is that [The property management company] knew [The owner’s agent] had considered and may be considering selling the property upon the expiry of the tenancy. She says this was pertinent information for her and had she known she would not have taken the tenancy. She explained she had another tenancy offered to her but as there was some uncertainty as to whether the owners may need to sell at some point, she declined it. She required a stable home whilst her house was being repaired.
It is not disputed that employees of [The property management company] knew [The owner’s agent] had previously wished to sell the property and may wish to sell again at some point in the future. [The property manager] however submits that they did not know when the tenancy was contracted for when a sale might occur. [The owner’s agent] supports that by saying that he had no clear time frame for selling when the tenancy started but knew at some point he would want to sell. He had originally wanted as 12-month tenancy but agreed to a six-month contract upon [The tenant/s] request. 12 Section 2 13 By section 13A(1) of the RTA
For there to be an actionable misrepresentation the following elements must be present: a. A false representation which can be an omission. b. The misrepresentation must have been made by one party to the other. c. The party who made the misrepresentation must have intended for the other party to rely on it. d. The misrepresentation must induce the party to enter the contract.
Whilst [The property management company] knew that [The owner’s agent] would want to sell the property at some stage, I do not find it a misrepresentation to withhold that information from [The tenant/s]. He had no timeframe in mind at that point, had wanted a longer tenancy than was agreed to and had made an active decision at that point to rent it rather than sell. To that end he spent money on getting the house up to rentable standard. There was therefore at that point, nothing to tell.
I do not find [The property manager] misled [The tenant/s] about [The owner’s agent]’s intentions. I accept the evidence that he was initially deciding whether to sell or rent the property. He chose to rent it. He did place a question mark in the agency appointment when asked if the property was on the market, but I accept the reasoning of uncertainty rather than a clear decision to sell at a certain point. Then when costs became too much, he decided to sell at the conclusion of this tenancy which is what he is doing now. I find [The property manager]’s communications to [The tenant/s] consistent with [The owner’s agent]’s evidence in this respect.
I appreciate that [The tenant/s] feels that she has been deceived from the outset as to [The owner’s agent]’s intentions for the house. However, I do not find that the evidence substantiates that suspicion, more that [The owner’s agent] changed his mind into the tenancy when he realised the practical and financial difficulties involved in running a tenancy.
Accordingly, I must dismiss the claim for misrepresentation. Filing fee
Because [The tenant/s] has not wholly or substantially succeeded with the claim I cannot reimburse the filing fee. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful in their application or defence, and allows discretion whilst weighing up the parties’ interests and the public interest. Both parties have sought suppression and I consider it just that these claims be approved given the limited success for both sides.
Finally, as an aside I note that this tenancy has been a difficult one for all involved. There has been distrust on both sides which appears to have resulted from misunderstandings rather than malicious intentions. I hope that this decision gives all parties closure on the events even though they may not agree with all the findings I have made.

Tenancy Tribunal case 4704211 — Exemplary damages

At a glance

Tenancy Tribunal case 4704211 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Should orders be made regarding the heater?

Should exemplary damages be awarded because of the termination notice?

Has the landlord provided false and/or misleading information?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should orders be made regarding the heater?

Should exemplary damages be awarded because of the termination notice?

Has the landlord provided false and/or misleading information?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions