What was the outcome of Tenancy Tribunal case 4772477?

The tribunal order states: Iqbal Singh Grewal must pay Lucy Pool $4,620.44 immediately, calculated as shown in

How much money was awarded in case 4772477?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4772477?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4772477?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9996966-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4772477?

The tribunal order states: Iqbal Singh Grewal must pay Lucy Pool $4,620.44 immediately, calculated as shown in

How much money was awarded in case 4772477?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4772477?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4772477?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9996966-Tenancy_Tribunal_Order.pdf.

32 South Road, Kuripuni, Masterton 5810 Tenancy Tribunal Case 4772477 — Exemplary damages

Order

Iqbal Singh Grewal must pay Lucy Pool $4,620.44 immediately, calculated as shown in table below: Exemplary damages: Failure to lodge bond. $500.00 Exemplary damages: Breach of rent obligations $500.00 Exemplary damages: Landlords obligations $3,600.00 Filing fee reimbursement $20.44 Total payable by Landlord to Tenant $4,620.44
All other claims are dismissed.

Reasons

The Tribunal must consider an applications filed by both the landlord and tenant. The tenant continue living in the premises.
A hearing was convened in Masterton today, on 23 February 2024. The tenant was in attendance. The landlord did not attend, although he was represented by a representative, Ms Kedzlie.

BACKGROUND

The tenancy commenced on 22 May 2023. The landlord is Sunny Grewal, and the tenant Lucy Pool.
The tenancy has not gone smoothly, the tenant states that she received a notice terminating the tenancy on 10 October 2023, the reason for the termination being that the premises were to be put on the market, with the final date of tenancy in January. The tenant remains in possession. At the hearing the landlord’s representative raised that she wish to receive an order in relation to that termination. As I explained, I cannot make such an order, because the landlord has not requested a possession order in relation to the termination notice. The landlord has requested a termination of the grounds of rent arrears, and I will consider that below. If the landlord wishes to have an order granting possession because of the notice he issued, he will need to file an application for that.

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.
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 Tribunal must consider a number of claims for 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.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

TENANTS CLAIMS

Rent breach

The tenant considers that the landlord has breached his obligations around the rental charge for the premises. The tenant states that the premises were advertised on Facebook for $600 per week, and then subsequently that increase during communication with the landlord to $700, but by the time of the tenancy agreement, it had reached $805.
The landlord’s position is that following advice, it was determined that the rent for the premises was too low, so it was increased and the tenant signed the tenancy agreement for a rental of $805.00. Analysis
Based on the information before the Tribunal, I accept the tenants oral evidence, that the premises were advertised for rent, at $600 per week. The subsequent messenger conversations provided by the tenant do support that the rent increased to $700, and certainly the tenancy agreement records the rent to be $805 per week.
As I explained at the hearing, a landlord cannot increase the rental charged, above the level of the tenancy is advertised for. That is confirmed in section 22G of the RTA: 22G Landlord must not invite or encourage bids for rent (1) A landlord must not invite or encourage a prospective tenant or any other person to offer to pay an amount of rent for residential premises that exceeds the amount of rent stated as part of the advertisement or offer of the premises in accordance with section 22F(1). (2) Subsection (1) does not prohibit a prospective tenant or other person from offering to pay an amount that exceeds the stated amount of rent. (3) A landlord who contravenes subsection (1) commits an unlawful act.
In this case I accept that the landlord had required the tenants to pay more than the advertised rental, which is an unlawful act under section 22G(3).
I have set out the law that relates to exemplary damages claims, and find that exemplary damages must be ordered for these reasons: a. There is no evidence before the Tribunal that would suggest that the landlord’s decision to increase the rent from that advertised, was anything other than an intentional action on the part of the landlord. b. The effect for the tenant was that she needed to pay a higher level of rent, than she should have. I do not doubt that would have caused difficulties and stress for the tenant, and resulted in efforts from the landlord to pursue a termination for rent arrears. c. There are strong interests for tenants and the public generally that landlords comply with their obligations under the Act, when it comes to rent. d. I consider it would be just to make an order in this case.
The maximum level of exemplary damages that could be ordered for a breach of section 22G is $1,500. I make an order of $500 exemplary damages, as I consider that would be reasonable in the circumstances, the evidence does not favour a higher or lesser award. Confirm level of rent
The tenant seeks an order confirming the level of rent she should pay. For the reasons I have set out above, the rental due for the premises is $600 per week. That was the amount advertised. Exemplary damages for failure to lodge bond
The tenant’s position is that the bond was paid at the start of the tenancy, but not lodged with the Bond Centre until the dispute subsequently arose with the landlord. The tenant does not consider the landlord has complied with his bond obligations.
The landlord’s representative confirmed that the bond was lodged in October 2023. The representative states that the landlord did not know it needed to be lodged. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge the bond with the Chief Executive.
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.
I have received no evidence from the landlord explaining why the bond was not lodged. The representative states that the landlord did not know it needed to be lodged, I do not accept that. Despite the fact I have not received that evidence from the landlord himself, the tenancy agreement was the preformatted Tenancy Services tenancy agreement, which expressly records that the bond needed to be lodged with the Bond Centre. Furthermore, it is very well recognised in New Zealand that bonds paid to landlords, must be lodged with the Bond Centre, and I have no reason to believe that this landlord understood otherwise.
Taking into consideration the factors set out in section 109, I find that exemplary damages should be ordered because the breach is likely to be intentional, there was an impact for the tenant and that her bond was not kept securely in the Bond Centre, and the expectation for tenants, landlords, and the public generally is that the bond system is robust. That demands landlords comply with lodging bonds when they are paid to them. It would be just to make an order.
The maximum level of exemplary damages for this breach is also $1,500, and for the same reasons as above, I make an exemplary damages order of $500. Breach of Healthy Homes Standards
The tenant states that before she moved in, a wood burner in the wall had been removed and was not blocked off. The tenant states that she got one of her children to climb in and block it off to keep the draught out.
The landlord’s position is that the tenant had stated that the house was not HHS compliant, but she did not set that out further. The representative states that an HHS inspector was arranged, but could not get in. The representative states that the tenant wanted to move in as soon as possible, and that was on the basis that this work would be undertaken once the tenant moved in. The landlord states there were no concerns raised at the start of the tenancy about the fireplace.
The tenant said that the inspector arrived the day after they received the eviction notice.
The tenant states there is a heat pump which does not work at all. The tenant states there is a wood burner but that is not useable.
The representative is not sure what the problem is with the heat pump. The representative also does not know what is wrong with the wood burner. The landlords position is that at the end of the tenancy he tried to get an HHS inspector into the premises but the tenant would not permit that. Analysis
The tenant has claimed that the landlord has breached his obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, but all private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
Based on the information available, I am satisfied that the landlord has not complied with his obligations around heating, and draught stopping. The tenants evidence which is uncontested, is that the heat pump did not work during the tenancy, and while it was a wood burner it also was inoperable. I accept the landlord has not complied with his heating obligation because these items did not function.
I accept that the landlord had removed one of the fireplaces, and had not properly blocked off the chimney, or other gaps relating to that fireplace. I accept in the circumstances the extent of the draught from that would be unreasonable.
The landlord’s representative submitted that the tenants did not raise these concerns. That is irrelevant, the obligation is not on the tenants to identify breaches of the landlords healthy homes requirements, the obligation is on the landlord to provide the tenancy meeting those criteria.
The particular breach is found in section 45, which also is a provision which relates to the following landlord breaches, and I can only make one order of exemplary damages for all breaches under section 45. I will therefore aggregate my discussion around exemplary damages further below. Smoke alarms
The tenant says there were no smoke alarms in the premises at all.
The representative does not know what the smoke alarm situation is. Analysis
The landlord’s evidence was that there were no smoke alarms at all in the premises, the landlord has provided no evidence disputing that to be the case.
Section 45(1)(ba) of the Residential Tenancies Act 1986 (RTA) requires that landlords comply with all requirements in relation to smoke alarms made under section 138A.
The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational.
Regulation 5 requires that there be at least 1 qualifying smoke alarm installed: a. Within a sleeping space (bedroom); or b. Within 3 metres of the entrance to a sleeping space; AND c. On each story or level of the premises.
I am satisfied the landlord has not complied with this requirement, which is a breach of section 45, again I will consider exemplary damages below. Maintenance
The tenant’s position is that there is considerable maintenance required, that was not undertaken or was slow in being addressed. The tenant gave various examples through the hearing including: a. A shower leak. The tenant advised the landlord about the shower leak on 7 June, but that was not repaired until October or November. b. The tenant states the oven is not working properly, with only two elements working, and that was raised with the landlord on 7 June. This has not yet been fixed, and causes shocks to the tenant. c. The tenant says that the window and door latches were missing or defective so could not be closed properly. This was also raised on 7 June. The landlord had not repaired these so the tenant undertook the repairs herself. d. The tenant said also on 7 June she raised that the heat pump was not working, and that not repaired.
The landlords representative says she was not made aware of any of those claims, and otherwise did not present a defence to the claims. Analysis
Firstly, I do not accept that the tenants claim has not been notified to the landlord. I reviewed the records at the hearing, and noted that the tenants claim had been forwarded to the landlord by way of email, using the same email address that the landlord recorded as his email address, in his claim against the tenant. Tenancy Services also sent a text message notification around the claim, again to the same cell phone number that the landlord used in his claim. I have received no evidence from the landlord suggesting that he did not receive notice of this claim, and nor does the electronic file hold any record of the landlord contacting Tenancy Services, seeking further information or advising that documents have not been received.
When I consider the evidence of the tenant, I am satisfied that the landlord has not properly maintained the tenancy when work was needed. Either the landlord did not do the work when notified, or was slow in getting the work completed.
The landlords representative indicated that it was difficult to get a healthy homes inspector into the property, but that would’ve been around October. At any time during the course of the tenancy, if the landlord needed to enter the premises for maintenance, the landlord could have given a notice to the tenant of the intended entry, and then entered the premises and got on with the work needed. Again I have been provided no evidence that the landlord has done that.
I am entirely satisfied that the landlord has breached his obligation to maintain the premises. Exemplary damages
As above, the landlord has breached his obligations around maintenance, the HHS and smoke alarms. Those are all breached found in section 45. The District Court has confirmed that there can only be one award for a breach of a section, but I can take into account the number and extent of the breaches when deciding the level of exemplary damages to order.
I am of the view that the above breaches have occurred intentionally, and there have been significant impact for the tenant. It is strongly in the interest of tenants and the public generally that landlords maintain premises, certainly provide smoke alarms, and comply with the HHS. It would be just to make an order. Taking into account that there are three specific breaches, I have determined that exemplary damages at 50% of the maximum would be indicated, and therefore order the payment of $3,600 for a breach of the landlord’s obligations under section 45. LANDLORD’S CLAIMS
The landlord has applied for an order terminating the tenancy on the basis of rent arrears, and that the tenant pay the arrears owing.
At the hearing today, we went through the landlords rent ledger, and there are problems with it. Firstly the landlord’s rent ledger records that the weekly rent due was $805 per week, but for the reasons as I have set out above, the rent should have been $600. However that would not be determinative, I would have been prepared to re-calculate the rent due based on the $600 per week figure.
The real problem for the landlord, is that the landlord has recorded that the only rent payments received were $405 per week which I understand were automatic payments from WINZ, with the exception of one week when $705 was paid on 3 July 2023.
At the hearing the tenants disputed that the landlord’s rent records were correct, stating that there were weeks when an additional $400 had been paid by the tenants. The tenant referred to her electronic bank records at the hearing, which I accept on the face of it show that on at least 13 and 20 June 2023, the tenant had paid $400 to the landlord, which would have been on top of the payment from WINZ. We did not consider the tenants bank statements more widely. The landlord’s representative did not have any bank records at the hearing, to dispute that the payments were received.
On balance, I find that there is sufficient reason to conclude that the landlords rent ledger is inaccurate. The landlord must prove the amount of rent arrears owing in order to get an order that those arrears be paid, and certainly for a termination to be based on that rent ledger. Because I do not consider the rent ledger has been proven as reliable, I do not accept it.
As I raised with the parties at the hearing, from here I consider that the parties should work together to identify what payments have been missed from the rent ledger, that will not be difficult for the parties to do. Ms Pool should review her bank statements, finding those additional payments made to the landlord, and notify the landlord of the dates they were made and the amounts. The landlord no doubt will reconcile his own bank records to confirm the payments have been made one way or the other.
As can be seen I am not finding that the tenant does or does not owe rent arrears to the landlord, perhaps she does. Once the landlord has reviewed the records, if he considers the tenant to continue to be in arrears, he may file a fresh application with the Tribunal at that time. If the parties wish to dispute the accuracy of any additional payments, no doubt they will both provide their bank records if necessary for any future hearing.

FILING FEE

Because the tenant has been wholly successful in her application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

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, the tenant has not. The landlords application for name suppression is dismissed, because he has not been wholly or substantially successful in the proceeding.

Tenancy Tribunal case 4772477 — Exemplary damages at 32 South Road, Kuripuni, Masterton 5810

Tenancy Tribunal case 4772477 — Exemplary damages at 32 South Road, Kuripuni, Masterton 5810

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

FILING FEE

NAME SUPPRESSION

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

FILING FEE

NAME SUPPRESSION