What was Tenancy Tribunal case 4750249 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4750249?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4750249?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4750249?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10149114-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4750249 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4750249?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4750249?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4750249?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10149114-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4750249 — Property damage

Order

The application is dismissed.

Reasons

[Landlord’s representative] appeared for the landlord. The tenant appeared with their partner who also gave evidence.
The tenancy in this case commenced on 18 June 2021 and was for a fixed term ending on 16 June 2022, after which it became periodic. On 26 June 2023, the landlord issued the tenant a 90-day notice to terminate on the basis they intended to complete extensive renovations and that it would not be practicable for the tenant to remain in occupation, section 51(2)(f) of the Residential Tenancies Act 1986 (The “Act”). The tenancy ended on 24 September 2023 although the landlord agreed to extend this to 21 October 2023. The tenant did not challenge the notice within the term of the tenancy.
On 27 November 2023, the tenant filed a claim alleging that the landlord owed them a rent overpayment, that the landlord had deducted monies from the bond that they were not entitled to, and the landlord had issued the notice to terminate knowing that they did not have grounds to do so.
The onus of proving these claims rests with tenant. The standard required is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Rent overpayment.
The tenant states that they vacated the property on 19 October 2023 and should therefore only be liable for rent until that date. The evidence produced by the parties shows that there was an agreement that the tenancy was to end on 21 October 2023. Following the agreement there is no evidence that the parties then agreed on another date. The tenant was liable for rent as per the agreement. The claim is dismissed. Deductions from the bond not entitled.
This claim concerns damage to the carpet in one of the bedrooms occurring during the tenancy which the tenant had professionally repaired by patching. At the end of the tenancy, the landlord advised that the repair was not adequate and that they planned to replace the carpet in the room concerned. The parties agreed that the excess of $750.00 was to be deducted from the bond. Subsequently, the parties signed the bond release form.
The tenant was aware that the landlord could not unilaterally deal with the bond. The tenant states that they were unaware that if they declined, the landlord would have to file a claim if they wished to seek compensation from the tenant. The tenant states that they needed to release the bond to satisfy a new bond and did not wish to delay matters, suggesting that circumstances were a factor in resolving the matter.
The tenant states that about a week after the tenancy ended, they returned to the property and discovered that it had been re tenanted. The tenant enquired whether the carpet had been replaced and states they were advised that it had not. The tenant states that the agreement had been made on the basis that the landlord was going to relace the carpet, which they had not, meaning that the landlord had misled the tenant and the money should be returned.
The landlord has produced quotes to replace the carpet which they state have been accepted. Having taken the promise to tell the truth, [Landlord’s Representative] states that to the best of his knowledge the work had been delayed for logistical reasons but that the landlord intended replacing the carpet. I am not satisfied that the landlord has misled the tenant inducing them to enter the agreement, nor am I convinced that the actual replacement of the carpet was a term of the agreement.
The settlement in return for payment of the excess has been offered and accepted as compensation for the damage. Had the tenant opted to challenge their liability at the time they should have made an application to the Tribunal as opposed to entering the agreement. Issuing termination notice without grounds.
As stated about a week after the tenancy had ended the tenant returned to the property and discovered the property appeared to have been re tenanted. The tenant states that asked the occupants whether any substantial renovation work had been carried out before they had moved in. The tenant states they were advised that apart from some painting in two rooms, no other apparent work had been recently completed. The tenant states that the grounds for giving the notice were therefore false. In addition to exemplary damages the tenant is claim compensation for other loss arising from the breach. Law
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Knowledge is not defined in the Act. In the case of Kerr v R [2012] NZCA 212, the Court, dealing with knowledge in a criminal context, held that knowledge meant “knowing or believing in a state of affairs”.
Breaching this provision is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A of the Act.
In the case of Borlase v Davies, Nelson TT95/95, 27 July 1995, the Tribunal held that a landlord’s notice to terminate a periodic tenancy was not necessarily invalidated for a change of reason subsequent to issue. The Tribunal confirmed the issue was whether the reason for giving the notice had been genuinely held at the time of the notice. This is a question of fact to be determined on the evidence. Decision
The landlord states that at the time of giving the notice, they had intention to conduct renovations which in their view would not be practicable with the tenant remaining in occupation.
The landlord has produced an email from the owner of the property setting out the scope of the proposed work for which they obtained three quotes. The scope of the work involved painting the inside of the house including the windows.
[Landlord’s Representative] states that the landlord considered the quotes to expensive and after giving notice subsequently decided to partially accept one quote to repaint the bathroom and an ensuite. [Landlord’s Representative] is of the view that painting the inside of the property as initially intended to be extensive work and that it would not have been practise for the tenant to remain in occupation. [Landlord’s Representative] states that the fumes produced, and general inconvenience would have been such that it would not have been practicable for the tenant to remain, and had they remained, there would have likely been complaints about loss of amenity.
In opinion, [Landlord’s Representative’s] position is debatable. Had the tenant challenged the validity of the notice before the end of the tenancy, on the grounds that the actual works intended did not in fact meet the definition of extensive works not practicable with the tenant remaining in occupation, having conducted an objective assessment of the evidence, the notice may have deemed invalid and set aside.
However, the tenant did not do so. The issue in this claim is whether at the material time the landlord had knowledge that they did not have grounds. On the evidence before me, I am not satisfied that this was the case. I accept that although arguably mistaken as to the facts, that the landlord nevertheless issued the notice with a genuine believe at the time that they ground to do so. As stated in the case of Borlese v Davies a notice to terminate a tenancy is not necessarily invalidated for a change in circumstances subsequent to issue. On this basis, the claim is dismissed. Name suppression
Both parties seek name suppression
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
The landlord has been wholly successful and is granted name suppression.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.
While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the tenant. Upon careful consideration, I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion in section 95A (4). The Tribunal also orders suppression of the tenant’s name.

Tenancy Tribunal case 4750249 — Property damage

At a glance

Tenancy Tribunal case 4750249 — Property damage

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions