What was Tenancy Tribunal case 4787220 about?

The tribunal order states: The Tribunal declares it has jurisdiction to hear the claim.

How much money was awarded in case 4787220?

Property Damage: $375.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Landlord’S Earlier Repayment To Tena…: $280.00 awarded to landlord; Property Damage: $425.00 awarded to landlord; Rent Overpayment: $360.00 awarded to tenant

What type of tenancy dispute was case 4787220?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4787220?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10461112-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4787220 about?

The tribunal order states: The Tribunal declares it has jurisdiction to hear the claim.

How much money was awarded in case 4787220?

Property Damage: $375.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Landlord’S Earlier Repayment To Tena…: $280.00 awarded to landlord; Property Damage: $425.00 awarded to landlord; Rent Overpayment: $360.00 awarded to tenant

What type of tenancy dispute was case 4787220?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4787220?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10461112-Tribunal_Order_Redacted.pdf.

6 Kilcooley Road, Flat Bush, Auckland 2019 Tenancy Tribunal Case 4787220 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4787220 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Replacement curtains	$425.00		Replacement curtains
Landlord’s earlier repayment to tenant	$280.00		Landlord’s earlier repayment to tenant
Rent overpayment		$360.00	Rent overpayment
Repayment of the bond		$720.00	Repayment of the bond
Exemplary damages for failing to lodge the bond		$375.00	Exemplary damages for failing to lodge the bond
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$705.00	$1,475.44
Net award		$770.44
Total payable by Landlord to Tenant		$770.44

Order

The Tribunal declares it has jurisdiction to hear the claim.
The tenant’s name and identifying details must not be published.
Ming Lin must pay [the tenant] $770.44 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The tenant applies for return of the bond, repayment of one week’s overpaid rent, exemplary damages for the landlord failing to lodge the bond, and reimbursement of the filing fee.
The landlord disputes that the Tribunal has jurisdiction to hear the claim. That issue was considered first.

Does the Tribunal have jurisdiction to hear this claim?

Facts

The landlord says that the Act does not apply. In that regard s 5(1)(n) of the Residential Tenancies Act 1986 (RTA) says the Act is excluded where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
The pivotal question here is what the premises consisted of. I consider that now.
The building containing the premises is a free-standing house.
The tenant lived in a designated area downstairs containing a bathroom, bedroom, and living area. There was a makeshift kitchen outside.
The landlord, her son, his partner, and their child lived upstairs, in the rest of the house.
The tenant never entered the landlord’s family’s part of house. The landlord only entered the tenant’s part of the house by prior arrangement and after knocking on the door.
There was a door that separated the tenant’s part of the house from the landlord’s part of the house, which was locked from the landlord’s side. Legal principles
In Harding v Caroto and Others 1 , a single house the landlord and the tenant lived in a single house. However, they lived in two separate residential units, 1 [2021] NZHC 1265. albeit that the landlord or the tenant could have walked into the other’s unit simply by opening a door with a magnetic catch.
Walker J found that the Tribunal’s jurisdiction should be construed generously: 2 [T]the purpose and policy of the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions. There are many provisions which support that view. One illustrative indicator is s 10 which stipulates that the onus of establishing the facts on which it is contended that the Act does not apply lies on the party trying to exclude the Act. The s 11 restrictions on contracting out of the Act are another.
In Harding, Walker J found what matters was not that the tenant could physically access the area the landlord used but rather whether the tenant was legally entitled to access the area: 3 [T]he right to occupy held by the respondents did not extend to any area used by the appellant or her family during that period of occupancy. There were no shared or common areas which characterise a flat share. The fact that the granny flat was only physically separated from the rest of the house by a set of internal double doors with a magnetic latch does not alter this analysis. It is not the physical possibility of access which matters but whether the occupants were lawfully entitled to enter any other part of the house. Similarly, the fact that the appellant did enter the granny flat from time to time for maintenance and cleaning says nothing about the legal character of the occupancy. She had no entitlement without notice under the written terms of the agreement between the parties. That is determinative. Discussion
In this case, there was no written agreement. However, I am satisfied that under the oral agreement, as evidenced by the parties’ conduct, the premises consisted of the downstairs area.
The tenant had the right to occupy that area under the tenancy agreement to the exclusion of the landlord. That the landlord could possibly access the premises by simply unlocking the door does not matter. The landlord did not have a right to enter the premises without consent. It is the legal entitlement (or lack thereof) to enter that is important. 2 Harding v Caroto and Ors [2021] NZHC 1265 at [37]. See also the decision of the District Court in Adams v Massey University [1994] NZDC 43 in which Judge Toomey stated that the exclusions in section 5 needed to be interpreted strictly, and not liberally, so as to give effect to the intention of Parliament. 3 Ibid at [38]. Conclusion
The landlord did not use the premises principally as a place of residence. She did not meaningfully use the premises at all because she had no entitlement to occupy that part of the house.
I am satisfied that s 5(1)(n) of the RTA does not apply to this tenancy.
It follows, the Tribunal has jurisdiction to hear the claim, Landlord failing to lodge the bond
The landlord did not lodge the tenant’s bond.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. 4
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord says she did not think she had to because she regarded the tenant as a member of the family rather than a tenant and did not think the legal duty to lodge the bond applied to her.
The landlord may have been mistaken in her obligations, but ignorance of the law is no excuse. If it were a wilful blindness, and feigned ignorance of the law would become widespread. The effectiveness of rules would be undermined as a result.
As Harrop DCJ recently said (where a landlord committed the unlawful acts of failing to provide insulation and insurance statements): 4 The obligation to provide these documents are fundamental obligations on landlords which it appears Mr Hu was not fully aware of despite there being included in the Act since 2016 and 2019 respectively. Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.
The rule here is fundamental and widely promulgated. The landlord is deemed to know the rule despite her stated ignorance. Intention is deemed. 4 Residential Tenancies Act 1986 (RTA), s 19(1).
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. 5
Having regard to those factors, I set exemplary damages at 25 per cent of the maximum. That amounts to $375.00 (During the hearing, I had said the amount was $187.50. That was a mistake. I apologise to the parties for the error). Amount to be ordered for the damaged curtains
The tenant accepts her cat damaged the landlord’s curtains during the tenancy. However, she disputes the $850.00 the landlord claims she had to spend to replace the curtains. The tenant says she sourced comparable curtains from overseas that would have cost only $100.00 to $200.00.
The landlord says she purchased the original curtains in New Zealand about four years ago. To the best of her recollection she paid over $1,000.00 for them. The replacement curtains cost $850.00 from the same supplier. She provided an invoice for the new curtains but not one for the original curtains.
The tenant complains that the landlord previously provided her with only a handwritten invoice for the curtains and did not provide her with the typed invoice the landlord submitted to the Tribunal today.
The primary issue the Tribunal must decide is if invoice is genuine.
The landlord brought the damaged curtains to the hearing. They were of substantial size, heavy, appeared of reasonable quality, and in reasonable condition in keeping with them being about four years old. On my assessment, an original cost for the curtains in the order of $1,000.00 is realistic.
The tenant thought she should have been given the opportunity to source cheaper curtains for overseas rather than the landlord sourcing these curtains. However, the landlord is entitled to replace the curtains like-for-like and I am not satisfied that the overseas curtains would have been of comparable quality to the locally-sourced curtains. Nor would it be fair to require landlords to replace locally sourced curtains of known quality with overseas-sourced curtains of an unknown quality. 5 RTA, s 109(3)
I have decided on the balance of probabilities that the invoice is genuine.
I accept the landlord paid $850.00 to replace the damaged curtains.
That amount is an appropriate benchmark to assess the value of the original curtains, and therefore, the landlord’s loss.
Depreciation must be factored in. The tenant should not pay to place the landlord in a better position than if her cat had not damaged the curtains. Curtains have an expected useful life of about eight years. These curtains were about four years old.
Therefore, I order the tenant to reimburse the landlord for 50 per cent of the replacement curtains cost. Rent overpayment, landlord’s payment, bond
The tenant overpaid one week’s rent.
An order is made in the tenant’s favour for that.
The tenant released $280.00 to the tenant.
The tenant paid a bond of $720.00 which must be taken account of.
All of these are included in the table above in calculating the amount to be ordered. Filing fee
The tenant has substantially succeeded with the claim. The Tribunal orders the landlord to reimburse the tenant for the filing fee. Non-publication
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant has substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified by the tenant’s conduct or any other circumstances of the case.
The Tribunal orders non-publication of the tenant’s name and identifying details.

Claims and awards in Tenancy Tribunal application 4787220 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Replacement curtains	$425.00		Replacement curtains
Landlord’s earlier repayment to tenant	$280.00		Landlord’s earlier repayment to tenant
Rent overpayment		$360.00	Rent overpayment
Repayment of the bond		$720.00	Repayment of the bond
Exemplary damages for failing to lodge the bond		$375.00	Exemplary damages for failing to lodge the bond
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$705.00	$1,475.44
Net award		$770.44
Total payable by Landlord to Tenant		$770.44

Order

The Tribunal declares it has jurisdiction to hear the claim.
The tenant’s name and identifying details must not be published.
Ming Lin must pay [the tenant] $770.44 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The tenant applies for return of the bond, repayment of one week’s overpaid rent, exemplary damages for the landlord failing to lodge the bond, and reimbursement of the filing fee.
The landlord disputes that the Tribunal has jurisdiction to hear the claim. That issue was considered first.

Does the Tribunal have jurisdiction to hear this claim?

Facts

The landlord says that the Act does not apply. In that regard s 5(1)(n) of the Residential Tenancies Act 1986 (RTA) says the Act is excluded where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
The pivotal question here is what the premises consisted of. I consider that now.
The building containing the premises is a free-standing house.
The tenant lived in a designated area downstairs containing a bathroom, bedroom, and living area. There was a makeshift kitchen outside.
The landlord, her son, his partner, and their child lived upstairs, in the rest of the house.
The tenant never entered the landlord’s family’s part of house. The landlord only entered the tenant’s part of the house by prior arrangement and after knocking on the door.
There was a door that separated the tenant’s part of the house from the landlord’s part of the house, which was locked from the landlord’s side. Legal principles
In Harding v Caroto and Others 1 , a single house the landlord and the tenant lived in a single house. However, they lived in two separate residential units, 1 [2021] NZHC 1265. albeit that the landlord or the tenant could have walked into the other’s unit simply by opening a door with a magnetic catch.
Walker J found that the Tribunal’s jurisdiction should be construed generously: 2 [T]the purpose and policy of the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions. There are many provisions which support that view. One illustrative indicator is s 10 which stipulates that the onus of establishing the facts on which it is contended that the Act does not apply lies on the party trying to exclude the Act. The s 11 restrictions on contracting out of the Act are another.
In Harding, Walker J found what matters was not that the tenant could physically access the area the landlord used but rather whether the tenant was legally entitled to access the area: 3 [T]he right to occupy held by the respondents did not extend to any area used by the appellant or her family during that period of occupancy. There were no shared or common areas which characterise a flat share. The fact that the granny flat was only physically separated from the rest of the house by a set of internal double doors with a magnetic latch does not alter this analysis. It is not the physical possibility of access which matters but whether the occupants were lawfully entitled to enter any other part of the house. Similarly, the fact that the appellant did enter the granny flat from time to time for maintenance and cleaning says nothing about the legal character of the occupancy. She had no entitlement without notice under the written terms of the agreement between the parties. That is determinative. Discussion
In this case, there was no written agreement. However, I am satisfied that under the oral agreement, as evidenced by the parties’ conduct, the premises consisted of the downstairs area.
The tenant had the right to occupy that area under the tenancy agreement to the exclusion of the landlord. That the landlord could possibly access the premises by simply unlocking the door does not matter. The landlord did not have a right to enter the premises without consent. It is the legal entitlement (or lack thereof) to enter that is important. 2 Harding v Caroto and Ors [2021] NZHC 1265 at [37]. See also the decision of the District Court in Adams v Massey University [1994] NZDC 43 in which Judge Toomey stated that the exclusions in section 5 needed to be interpreted strictly, and not liberally, so as to give effect to the intention of Parliament. 3 Ibid at [38]. Conclusion
The landlord did not use the premises principally as a place of residence. She did not meaningfully use the premises at all because she had no entitlement to occupy that part of the house.
I am satisfied that s 5(1)(n) of the RTA does not apply to this tenancy.
It follows, the Tribunal has jurisdiction to hear the claim, Landlord failing to lodge the bond
The landlord did not lodge the tenant’s bond.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. 4
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord says she did not think she had to because she regarded the tenant as a member of the family rather than a tenant and did not think the legal duty to lodge the bond applied to her.
The landlord may have been mistaken in her obligations, but ignorance of the law is no excuse. If it were a wilful blindness, and feigned ignorance of the law would become widespread. The effectiveness of rules would be undermined as a result.
As Harrop DCJ recently said (where a landlord committed the unlawful acts of failing to provide insulation and insurance statements): 4 The obligation to provide these documents are fundamental obligations on landlords which it appears Mr Hu was not fully aware of despite there being included in the Act since 2016 and 2019 respectively. Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.
The rule here is fundamental and widely promulgated. The landlord is deemed to know the rule despite her stated ignorance. Intention is deemed. 4 Residential Tenancies Act 1986 (RTA), s 19(1).
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. 5
Having regard to those factors, I set exemplary damages at 25 per cent of the maximum. That amounts to $375.00 (During the hearing, I had said the amount was $187.50. That was a mistake. I apologise to the parties for the error). Amount to be ordered for the damaged curtains
The tenant accepts her cat damaged the landlord’s curtains during the tenancy. However, she disputes the $850.00 the landlord claims she had to spend to replace the curtains. The tenant says she sourced comparable curtains from overseas that would have cost only $100.00 to $200.00.
The landlord says she purchased the original curtains in New Zealand about four years ago. To the best of her recollection she paid over $1,000.00 for them. The replacement curtains cost $850.00 from the same supplier. She provided an invoice for the new curtains but not one for the original curtains.
The tenant complains that the landlord previously provided her with only a handwritten invoice for the curtains and did not provide her with the typed invoice the landlord submitted to the Tribunal today.
The primary issue the Tribunal must decide is if invoice is genuine.
The landlord brought the damaged curtains to the hearing. They were of substantial size, heavy, appeared of reasonable quality, and in reasonable condition in keeping with them being about four years old. On my assessment, an original cost for the curtains in the order of $1,000.00 is realistic.
The tenant thought she should have been given the opportunity to source cheaper curtains for overseas rather than the landlord sourcing these curtains. However, the landlord is entitled to replace the curtains like-for-like and I am not satisfied that the overseas curtains would have been of comparable quality to the locally-sourced curtains. Nor would it be fair to require landlords to replace locally sourced curtains of known quality with overseas-sourced curtains of an unknown quality. 5 RTA, s 109(3)
I have decided on the balance of probabilities that the invoice is genuine.
I accept the landlord paid $850.00 to replace the damaged curtains.
That amount is an appropriate benchmark to assess the value of the original curtains, and therefore, the landlord’s loss.
Depreciation must be factored in. The tenant should not pay to place the landlord in a better position than if her cat had not damaged the curtains. Curtains have an expected useful life of about eight years. These curtains were about four years old.
Therefore, I order the tenant to reimburse the landlord for 50 per cent of the replacement curtains cost. Rent overpayment, landlord’s payment, bond
The tenant overpaid one week’s rent.
An order is made in the tenant’s favour for that.
The tenant released $280.00 to the tenant.
The tenant paid a bond of $720.00 which must be taken account of.
All of these are included in the table above in calculating the amount to be ordered. Filing fee
The tenant has substantially succeeded with the claim. The Tribunal orders the landlord to reimburse the tenant for the filing fee. Non-publication
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant has substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified by the tenant’s conduct or any other circumstances of the case.
The Tribunal orders non-publication of the tenant’s name and identifying details.

Tenancy Tribunal case 4787220 — Exemplary damages at 6 Kilcooley Road, Flat Bush, Auckland 2019

At a glance

Tenancy Tribunal case 4787220 — Exemplary damages at 6 Kilcooley Road, Flat Bush, Auckland 2019

At a glance

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear this claim?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear this claim?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions