What was the outcome of Tenancy Tribunal case 4727633?

The tribunal order states: Peter John Brothers must pay Vanessa Grace Law $2,700.00 immediately,

How much money was awarded in case 4727633?

Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4727633?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4727633?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10034317-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4727633?

The tribunal order states: Peter John Brothers must pay Vanessa Grace Law $2,700.00 immediately,

How much money was awarded in case 4727633?

Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4727633?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4727633?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10034317-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 90 Browns Bay Road, Rothesay Bay, Auckland Tenancy Tribunal Case 4727633 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4727633 — net $2,700.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Bond refund	$2,200.00	Bond refund
Net award	$2,700.00
Total payable by Landlord to Tenant	$2,700.00

Claims and awards in Tenancy Tribunal application 4727633 — net $2,700.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Bond refund	$2,200.00	Bond refund
Net award	$2,700.00
Total payable by Landlord to Tenant	$2,700.00

Order

Peter John Brothers must pay Vanessa Grace Law $2,700.00 immediately, calculated as shown in table below. DescriptionTenant Exemplary damages: Failure to lodge bond$500.00 Bond refund$2,200.00 Total award$2,700.00 Total payable by Landlord to Tenant$2,700.00
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant.
Both parties appeared at the hearing in the North Shore District Courthouse today.
The tenant seeks orders in relation to the bond, her quiet enjoyment of the premises, and a claim that she has blocked a drain.
The Tenancy agreement has been provided. The tenancy was a fixed term tenancy commencing on 20 May 2023, ending on 20 May 2024. The landlord is Peter Brothers, the sole tenant Vanessa Law. The tenancy has now ended mid fixed term.

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), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, 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.

BOND

The tenant states that the bond was paid about one week prior to moving into the premises and not lodged with the Bond Centre. The tenant states that the bond has not been returned by the landlord after the end of the tenancy.
In response the landlords confirms that he received the bond, and states that after the tenant moved in he had an accident, and the bond was absorbed into his mortgage payments. The landlord states that the bond has not been refunded because there are missing items from the tenancy, there was rubbish left, and damage from the flooding (as will be discussed below). Analysis
There is no dispute that the bond was paid to the landlord at the start of the tenancy, and not lodged with the Bond Centre, nor refunded when the tenancy ended.
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.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of 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 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.
Taking those factors into consideration I have determined that exemplary damages should be ordered, for these reasons: a. I consider it very likely the decisions made by the landlord were intentional. My impression is that the landlord knew that the bond needed to be lodged. It is not a defence to say you have financial difficulties and used that money for other debts. b. The effect of the unlawful act is that the tenant’s bond money has not been kept securely, and in fact following the end of the tenancy has not been refunded, and the tenant will now need to get her bond paid by the landlord. c. There are strong interests for tenants and landlords to have a strong bond system which requires bonds to be paid to the Bond Centre as required. d. It would be in the public interest to make an order in this case, as there is a deterrence effect. e. It would be just to make an order.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which is $1,500.00 for a bond breach.
In this case it is reasonable to order the landlord to pay 1/3 rd of the maximum level. There is no evidence before the Tribunal that the landlord has a history of such breaches, nor evidence arguing for a higher or lower order.
The question then becomes whether the bond should be refunded to the tenant, noting that the landlord considers the tenant owes him money.. Section 22B of the Residential Tenancies Act 1986 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 landlord’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 counter claim for it. In the absence of a counterclaim, then the Tribunal must order that the bond be released to the tenants.
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 counter claim from the landlord, the Tribunal orders that the full bond be refunded to the tenants.

BREACH OF QUIET ENJOYMENT

The tenants position is that the landlord was growing cannabis on the landlords deck which was only an area accessed by the landlord. The tenant also says that she could smell cannabis being used from the landlord. The tenant considers this would be a breach of her quiet enjoyment,.
The landlord acknowledged there was small plants in pots but when this was raised by the tenant, he moved the pots, and ultimately the plants died. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quite 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.
Having considered the evidence, including what the parties raised at the hearing today, I have no reservation in concluding that the landlord has not harassed the tenant as defined above. I can see that the parties have had a range of conflicts during the tenancy, but that is not harassment. In relation to the cannabis, it appears that all of the circumstances around the cannabis relate to what happened on the landlords premises, not the tenants. I cannot see that the landlord has breached the quiet enjoyment of the tenants in this case. If the tenant is wanting to take up issues around the cannabis, that would be a police matter as any cannabis growing or use was not on the tenants premises.

LIABILITY FOR WATER LEAK

The final claim from the tenant relates to liability for a water leak. It is the case that during the tenancy there was a water leak in the tenants bathroom, that caused water to leak through the floor damaging the landlord ceiling below.
I decline to make any orders around the water leak, because there is no claim from the landlord in relation to this leak or damage. At this stage liability is somewhat hypothetical. If the landlord brings a claim in the Tribunal for that damage, then the Tribunal will need to consider whether the tenant is liable and make any orders after hearing from the parties then.

Tenancy Tribunal case 4727633 — Exemplary damages at Unit/Flat 2, 90 Browns Bay Road, Rothesay Bay, Auckland

At a glance

Tenancy Tribunal case 4727633 — Exemplary damages at Unit/Flat 2, 90 Browns Bay Road, Rothesay Bay, Auckland

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

BOND

BREACH OF QUIET ENJOYMENT

LIABILITY FOR WATER LEAK

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

BOND

BREACH OF QUIET ENJOYMENT

LIABILITY FOR WATER LEAK

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions