What was Tenancy Tribunal case 4738769 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4738769?

Compensation: Fuel Costs: $150.00 awarded to tenant; Compensation: Storage Costs: $2,694.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4738769?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4738769?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10495025-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4738769 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4738769?

Compensation: Fuel Costs: $150.00 awarded to tenant; Compensation: Storage Costs: $2,694.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4738769?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4738769?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10495025-Tribunal_Order_Redacted.pdf.

1612 Pakowhai Road, Tomoana, RD 2, Hastings 4172 Tenancy Tribunal Case 4738769 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4738769 — net $7,364.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Fail to lodge/ return bond	$1,000.00	Fail to lodge/ return bond
Exemplary damages: Unlawful termination	$3,500.00	Unlawful termination
Compensation: Storage costs	$2,694.00	Storage costs
Compensation: Fuel costs	$150.00	Fuel costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,364.44
Total payable by Landlord to Tenant	$7,364.44

Claims and awards in Tenancy Tribunal application 4738769 — net $7,364.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Fail to lodge/ return bond	$1,000.00	Fail to lodge/ return bond
Exemplary damages: Unlawful termination	$3,500.00	Unlawful termination
Compensation: Storage costs	$2,694.00	Storage costs
Compensation: Fuel costs	$150.00	Fuel costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,364.44
Total payable by Landlord to Tenant	$7,364.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Paul Harris must pay [The tenant/s] $7,364.44 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. Background
It is useful to begin by noting that this tenancy was entering into not long after Cyclone Gabrielle.
That context may help to explain what appear to be some somewhat inconsistent aspects of the evidence.
On 8 April 2023 the landlord responded to a post on the Cyclone Hawkes Bay help page lodged by the tenant, looking for a two-bedroom rental.
After an initial viewing the landlord confirmed on 24 April 2023 that the house would be available for rent in two weeks after further flood remediation work had been completed.
The landlord suggested that the tenant download a tenancy agreement, fill it out and e-mail it to him.
The tenant did so. After visiting and inspecting the premises the landlord left the agreement, signed by him, at the premises, which the tenant discovered when she visited on 11 May 2024. That explains why the tenant’s signature on the agreement is dated 28 April 2023 and the landlord’s signature is dated 5 May 2023.
The agreement provides for a periodic tenancy commencing on 14 May 2023.
The tenant had arranged for WINZ to pay the landlord $1,440.00 for bond ($960.00) and rent in advance ($480.00). That payment had not arrived in the landlord’s bank account by the tenancy commencement date. The landlord made it clear that the tenant was not to move in without having made those payments. The tenant paid that sum directly to the landlord on 15 May 2024.
The tenant moved in on 14 May 2023 and found that the water was running murky and brown. She also found that the kitchen sink was not attached securely and there was no seal between the sink and the counter. There was no sealant around the hand basins in the bathroom.
A txt exchange between the parties began at 5:03am on 15 May. The landlord consistently offered for the tenancy not to proceed if the tenant was not comfortable.
The tenant made it clear that she wanted the tenancy to continue, saying in a txt at 5:57am, “.....This is the second time you have brought up the subject of whether I want to rent the place or not. Please help me understand this. I have made it clear from the set go that I loved the place and want to rent it otherwise I would not have signed the tenancy agreement. I moved in on Sunday with full intentions of moving everything in but I am holding out so I can get the carpet shampooed before the larger pieces of furniture,. Please do not make this an issue on my end....”
The landlord responded “Hi...please don't move in... if we can't meet your expectations... You only have your cabinet there as per your previous message... if there is a problem with the water well need to sort that it will take an extended period of time... we are unable to react to things at the moment we will deal with it in due course... best if it's not working we all go own ways and we cannot deliver for you... so only too happy with full refund... best bet is you give me a call when you have time... but this situation needs to be resolved positively as we all move forward...... my view is our gap is too big for what we can deal with at the moment regards Paul.”
After further exchanges the tenant messaged the landlord at 7:13am, “Hi Paul. Sligh inconvenience but not a huge issue. Sure I would love to move into a home but very aware of the challenges everyone’s faced with. I will move the boxes as soon as I can find a place to store the boxes. These things are nobody's fault, it is what it is. Will give you a call when I leave the key. And about the key. Not sure it is the same key for all doors but it gets jammed in the first draw. Just giving you a heads up for Kevin to look into.”
The landlord replied, “Hi.... yes same key for all doors he can look at lock... its all good... I hope you find the home you're looking for... as you say it is what it is. give me heads up when you've moved the boxes and cabinet I'll put your deposit back through regards Paul.”
The tenant vacated the premises and did not return having, made it clear on 17 May that she would not welcome any further communication from the landlord. The tenant moved to temporary accommodation where she remains living. The Claims
The tenant filed her application on 13 November 2023.
The tenant claims: a. Compensation for: Storage costs $2,694.00 Fuel $100.00 Sofa $600.00 Rug $50.00 Cabinet $60.00 Electric wok $159.00 Induction cooker $59.00 Multi cooker $99.00 Coffee maker Takeaway meals Laundry costs $700.00 $180.25 $500.00 b. Exemplary damages for: Failure to lodge the bond Failure to provide premises in an adequate state of repair Unlawful termination of the tenancy
The tenant also sought an order for return of her bond and rent in advance but that was paid to her by the landlord on 30 January 2024, so no order is required.
The landlord filed his application on 1 February 2024. The landlord claims compensation for a missing curtains and for unpaid rent. Issues
The first issue is whether there was a concluded tenancy agreement between the parties.
The landlord suggests that no agreement was concluded. However, there is a tenancy agreement with a specific start date signed by both parties. The bond and rent in advance was demanded and received by the landlord. I find that a binding tenancy agreement was concluded.
The next issue is whether the landlord breached his obligations under section 45(1)(b)which requires that a landlord must, “(b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.”
The landlord seems to have clearly accepted that the premises were not in a reasonable state of repair when the tenancy started. He asked the tenant not to move in for that reason. I have no reason to question the tenant’s evidence that when she moved in the water was unfit for use.
The landlord thereby breached the obligation to provide the premises in a reasonable state of repair and able to be safely inhabited. Breaching that obligation is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
In the aftermath of Cyclone Gabrielle many property owners were struggling to return premises to habitable condition. It is understandable and that some of the final remediation work at the premises had not been completed by the intended start date and the landlord seems not to have been aware of the issues with the water quality.
The tenant’s response at the time shows an acknowledgement of the very difficult circumstances that everybody was operating under.
In those circumstances, my finding is that it would not be just to make an award of exemplary damages against the landlord for that breach. Also, of itself I would not have found that breach of the landlord’s obligations to be so fundamental as to allow the tenant to cancel the tenancy agreement.
Were the premises abandoned? The landlord claims that by leaving the premises and not returning without further discussion, the tenant abandoned the premises. That is not how I interpret the evidence. In my view the correspondence quoted above shows that the landlord made it clear that the tenant should not complete her move in and should remove the boxes of belongings and cabinet she already had in the premises
The correspondence between the parties shows that the landlord was aware that, as he had said she should, the tenant was vacating and not continuing with the tenancy. He said he would return her “deposit”.
In those circumstances it is not clear to me why the landlord chose to continue as if the tenancy remained in place and did not rent out the premises. It does seem that the opportunity was taken to do some additional a remediation and improvement work.
I find that the tenant did not abandon the tenancy and had no ongoing obligation to pay rent after vacating the premises.
I do not find it proved that the tenant was responsible for removing curtains from the premises. Bond
As noted, the tenant paid the landlord a bond of $960.00 and 1 weeks’ rent in advance of $480.00. Those sums were not returned to her until 30 January 2024.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986. Failure to do so is an unlawful act for which exemplary damages of up to $1,500.00 may be awarded.
I find the landlord has committed an unlawful act.
Either, the tenancy continued after the tenant vacated, in which case the landlord had an obligation to lodge the bond with the Bond Centre or the tenancy had ended, in which case the landlord had no legal basis for retaining the tenant’s money and should have repaid it to her as he said he would.
In neither case was the landlord entitled to keep the tenant’s bond money.
An aggravating factor is that the landlord specifically represented to the tenant when asking that she not continue with the tenancy “...I’ll put your deposit back through...”. He didn’t, which added to the tenant’s distress.
The landlord says that the tenant made it hard for him to redress the issue by making it clear that she wanted no contact from him. While that not have been wise or helpful given the issues that needed to be sorted out between the parties, the landlord was able to arrange for the bond to be repaid after the tenant filed her application and I am not aware of evidence showing he could not have done so immediately as he should have.
I find that in those circumstances an award of exemplary damages would be just to recognise the unlawfulness of the landlord’s actions. .

Did the landlord unlawfully end the tenancy?

Section 60AARTA provides that: “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.”
Breach of that obligation is an unlawful act for which exemplary damages of up to $6,500.0 may be awarded.
The tenant says that by requiring that she move out, the landlord unlawfully ended the tenancy. Her evidence is that in addition to the txt exchanges provided in evidence, other oral communications were much more threatening and made it clear that continuing with the tenancy was not an option for her and that she was required to remove her belongings and go.
To meet his legal obligations, as landlord of premises with the tenancy starting on 14 May 2023, the landlord was obligated to complete the work necessary to have the premises brought to a reasonable state of repair and habitability. Although the landlord says that the tenant had asked for other work to be done, the remediation work needed to have the premises brought to acceptable condition does not appear to have been too onerous – to check and flush the water system, fix a bathroom sink to the wall and seal around the sinks.
The only legal basis for ending the tenancy rather than completing that work, would have been by the parties’ mutual agreement.
The evidence about the tenant’s desperation to find a home and her eagerness to move into these premises, does not fit comfortably with a suggestion that she willingly gave up the tenancy. Although, the txt sent by her at 7:13am on 15 May 2023 seems to suggest an acceptance she had to do so.
On balance, I find that it was the landlord who chose to end the tenancy rather than meet his obligation to bring the premises to a reasonable state of repair as he was legally required to do. The tenant specifically noted, “.....This is the second time you have brought up the subject of whether I want to rent the place or not. Please help me understand this. I have made it clear from the set go that I loved the place and want to rent it otherwise I would not have signed the tenancy agreement. I moved in on Sunday with full intentions of moving everything in but I am holding out so I can get the carpet shampooed before the larger pieces of furniture,. Please do not make this an issue on my end....”
While expressed in more positive terms than that in the txts, I read the landlord’s communications as making it clear that the landlord did not intend to continue with the tenancy and required that the tenant vacate. The landlord was not entitled to do that, he had obligations to the tenant under a signed tenancy agreement.
I therefore find that the landlord breached s.60AA and by doing so committed an unlawful act.
In considering the s.109(3) criteria noted above, the tenant has given evidence of the considerable mental anguish she was suffering at the time. That is understandable given the loss of her previous home and possessions and the huge stresses that dealing with the cyclone’s aftermath created.
Those circumstances were not of the landlord’s making and any award of exemplary damages should reflect only the landlord’s capability for his unlawful actions, not other external factors outside the landlord’s control that might have aggravated the impact on the tenant. The landlord was also dealing with difficult circumstances.
In my view, the landlord’s actions in declining to meet his legal obligations and instead requiring the tenant to leave the premises, in a very difficult accommodation environment, makes a significant award of exemplary damages just. The tenant is still living in temporary accommodation with her belongings in storage. Compensation
Having found that the landlord breached his obligations to the tenant by failing to provide the premises he had contracted to provide and instead unlawfully terminating the agreement, the landlord must compensate the tenant for her resulting losses. Those losses need to be direct and reasonably foreseeable consequences of the landlord’s breach.
In the circumstances I find it was to be expected that not being able to move into these premises would mean the tenant would be required to find temporary accommodation and thereby incur storage costs to secure her belongings.
I do not find that losses in the form of fuel costs are proved to the extent claimed. A consequence of the landlord’s breach was the need for the tenant to undertake additional travel, and a modest compensatory award is however appropriate.
The claims in respect of furniture and appliances bought specifically for the premises or for the tenant’s temporary accommodation are declined. While I accept that these items may have been bought specifically to fit in the premises or be functional in her temporary accommodation, the tenant retains the use and benefit of those items. The tenancy was a periodic tenancy which, in appropriate circumstances could be ended by notice. It is therefore quite possible that the tenancy would have lawfully ended at some near point in the future, with the same consequences in terms of the tenant being left with furniture suited for the premises and/ or other accommodation.
The award of exemplary damages takes into account as one of the criteria under s.109(3), the effect of the landlord’s breach on the tenant and the grounds for an additional compensatory award for those items is not proven.
The claims for takeaway meals and laundry costs is, in my view too remote from the breaches to sustain an award of compensation. In financial loss terms, the temporary accommodation the tenant moved to from the premises is at a lesser weekly rental.
Because [The tenant/s] has mostly succeeded with her claim I reimburse the filing fee.

Tenancy Tribunal case 4738769 — Exemplary damages at 1612 Pakowhai Road, Tomoana, RD 2, Hastings 4172

At a glance

Tenancy Tribunal case 4738769 — Exemplary damages at 1612 Pakowhai Road, Tomoana, RD 2, Hastings 4172

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord unlawfully end the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord unlawfully end the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions