What was the outcome of Tenancy Tribunal case 4797737?

The tribunal order states: Andreas Lageder is to refund the balance of the bond, being $363.70, to Deborah

How much money was awarded in case 4797737?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4797737?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4797737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10863632-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4797737?

The tribunal order states: Andreas Lageder is to refund the balance of the bond, being $363.70, to Deborah

How much money was awarded in case 4797737?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4797737?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4797737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10863632-Tenancy_Tribunal_Order.pdf.

25 School Road, Robinsons Bay, RD 1, Robinsons Bay Tenancy Tribunal Case 4797737 — Harassment

Order

Andreas Lageder is to refund the balance of the bond, being $363.70, to Deborah Ann O’Keefe immediately.
Deborah Ann O’Keefe’s claims for exemplary damages for non-lodgement of the bond and compensation for breach of quiet enjoyment and privacy are dismissed.

Reasons

By order dated 11 July 2024, the Tribunal confirmed jurisdiction to determine Ms O’Keefe’s application.
Ms O’Keefe (“the tenant”) has filed an application against Mr Lageder (“the landlord”) seeking the return of the balance of her bond ($363.70), exemplary damages for non-lodgement of the bond and compensation for a breach of her quiet enjoyment of the premises and privacy ($500.00).
Before addressing the current claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. This is referred to as the “onus of proof”. In other words, the applicant must establish with evidence that what they are claiming is more likely than not, correct.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02: ...[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.
While I have carefully considered all the evidence and submissions from the parties, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

Is the tenant entitled to refund of the balance of the bond?

Section 22B(2) Residential Tenancies Act 1986 (“RTA”) provides that: (1) If there is a dispute between the parties as to the payment of the 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 applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application setting out the details of the counterclaim.
The tenancy began on 1 January 2024 and ended around 23 January 2024. At the start of the tenancy, the tenant paid a bond of $615.00. At the end of the tenancy, the landlord refunded $251.30 of the bond to the tenant and kept $363.70 for electricity charges ($38.70), rent owing for the week 21 January – 28 January 2024 ($205.00), and compensation for a damaged office desk ($60.00) and damaged board on the wall ($60.00). The tenant has applied for refund of the balance of the bond. The landlord has claims against the bond but has not filed a counterclaim with Tenancy Services.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the balance of the bond ($363.70) is to be refunded in full to the tenant. This does not prevent the landlord from filing a separate claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.

Should exemplary damages be awarded for non-lodgement of the bond?

Section 19(1) RTA requires landlords to lodge any bonds received with the Bond Centre within 23 working days. An award of exemplary damages may be made by the Tribunal in cases where a landlord fails to lodge the bond within the required time. See sections 19(2) and 109.
The Tribunal finds that the landlord was not in breach of section 19(1), as the required 23 working days for lodging the bond had not yet passed by the time the tenancy ended. Consequently, no exemplary damages will be awarded.

Is the tenant entitled to compensation for breach of quiet enjoyment and privacy?

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenant claims the landlord has harassed her. The tenant says the tenancy ended abruptly due to an aggressive incident, which resulted in the Police being called due to safety concerns for herself. The police advised her not to return to the property for her safety.
The tenant described on going issues with privacy, which were communicated to the landlord, but her concerns were met with aggression. She stated that she never felt able to live in the property without duress or disturbance from the landlord whose abrasive behaviour exacerbated the situation. She reported being harassed, intimidated, and verbally abused. According to the tenant, the landlord made frequent unannounced visits without prior notice, leaving her feeling that she had no privacy. She expressed difficulties dealing with the landlord, claiming he showed a flagrant disregard for her rights as a tenant. The situation escalated to a point where the Police were called to the premises. The tenant said she left the property on 19 January 2024, following police advice, due to concerns for her safety and well-being. She said these experiences impacted significantly on her quiet enjoyment of the premises causing undue distress and loss of income.
The landlord denied the tenant’s claims asserting that her behaviour became increasingly erratic during her stay. He alleged that the tenant was making false accusations and maintained he had always dealt with her in the same manner as his previous tenants, none of whom had ever complained. The landlord stated that any contact with the tenant was for legitimate tenancy related reasons. He claimed that he has a busy life with many commitments, making it unlikely that he would visit the property as frequently as the tenant suggested. He insisted that that all visits were for purposes to do with the tenancy, and he never entered the tenancy without getting permission first. He denied any threatening or inappropriate behaviour and felt that he had been mistreated by the tenant.
The tenant carries the burden of proof to establish that the landlord breached section 38 RTA by failing to respect her right to quiet enjoyment and privacy. While the tenant has made serious allegations regarding the landlord’s conduct, she has failed to provide any independent evidence to support her claims. This includes the absence of a Police report or other third-party documentation that might substantiate the incidents described.
The landlord has consistently denied all allegations, and in the absence of corroborating evidence from the tenant, the Tribunal is unable to determine on the balance of probabilities that the landlord breached the tenant’s right to quiet enjoyment as required by section 38 RTA.
I find that there is insufficient evidence to support the tenant’s claim that the landlord breached section 38 RTA. Therefore, this aspect of the tenant’s application is dismissed. Filing fee
As the tenant has not been wholly or substantially successful with her claims, it is not reasonable to order the other party to reimburse the filing fee.

Order

Andreas Lageder is to refund the balance of the bond, being $363.70, to Deborah Ann O’Keefe immediately.
Deborah Ann O’Keefe’s claims for exemplary damages for non-lodgement of the bond and compensation for breach of quiet enjoyment and privacy are dismissed.

Reasons

By order dated 11 July 2024, the Tribunal confirmed jurisdiction to determine Ms O’Keefe’s application.
Ms O’Keefe (“the tenant”) has filed an application against Mr Lageder (“the landlord”) seeking the return of the balance of her bond ($363.70), exemplary damages for non-lodgement of the bond and compensation for a breach of her quiet enjoyment of the premises and privacy ($500.00).
Before addressing the current claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. This is referred to as the “onus of proof”. In other words, the applicant must establish with evidence that what they are claiming is more likely than not, correct.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02: ...[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.
While I have carefully considered all the evidence and submissions from the parties, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

Is the tenant entitled to refund of the balance of the bond?

Section 22B(2) Residential Tenancies Act 1986 (“RTA”) provides that: (1) If there is a dispute between the parties as to the payment of the 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 applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application setting out the details of the counterclaim.
The tenancy began on 1 January 2024 and ended around 23 January 2024. At the start of the tenancy, the tenant paid a bond of $615.00. At the end of the tenancy, the landlord refunded $251.30 of the bond to the tenant and kept $363.70 for electricity charges ($38.70), rent owing for the week 21 January – 28 January 2024 ($205.00), and compensation for a damaged office desk ($60.00) and damaged board on the wall ($60.00). The tenant has applied for refund of the balance of the bond. The landlord has claims against the bond but has not filed a counterclaim with Tenancy Services.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the balance of the bond ($363.70) is to be refunded in full to the tenant. This does not prevent the landlord from filing a separate claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.

Should exemplary damages be awarded for non-lodgement of the bond?

Section 19(1) RTA requires landlords to lodge any bonds received with the Bond Centre within 23 working days. An award of exemplary damages may be made by the Tribunal in cases where a landlord fails to lodge the bond within the required time. See sections 19(2) and 109.
The Tribunal finds that the landlord was not in breach of section 19(1), as the required 23 working days for lodging the bond had not yet passed by the time the tenancy ended. Consequently, no exemplary damages will be awarded.

Is the tenant entitled to compensation for breach of quiet enjoyment and privacy?

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenant claims the landlord has harassed her. The tenant says the tenancy ended abruptly due to an aggressive incident, which resulted in the Police being called due to safety concerns for herself. The police advised her not to return to the property for her safety.
The tenant described on going issues with privacy, which were communicated to the landlord, but her concerns were met with aggression. She stated that she never felt able to live in the property without duress or disturbance from the landlord whose abrasive behaviour exacerbated the situation. She reported being harassed, intimidated, and verbally abused. According to the tenant, the landlord made frequent unannounced visits without prior notice, leaving her feeling that she had no privacy. She expressed difficulties dealing with the landlord, claiming he showed a flagrant disregard for her rights as a tenant. The situation escalated to a point where the Police were called to the premises. The tenant said she left the property on 19 January 2024, following police advice, due to concerns for her safety and well-being. She said these experiences impacted significantly on her quiet enjoyment of the premises causing undue distress and loss of income.
The landlord denied the tenant’s claims asserting that her behaviour became increasingly erratic during her stay. He alleged that the tenant was making false accusations and maintained he had always dealt with her in the same manner as his previous tenants, none of whom had ever complained. The landlord stated that any contact with the tenant was for legitimate tenancy related reasons. He claimed that he has a busy life with many commitments, making it unlikely that he would visit the property as frequently as the tenant suggested. He insisted that that all visits were for purposes to do with the tenancy, and he never entered the tenancy without getting permission first. He denied any threatening or inappropriate behaviour and felt that he had been mistreated by the tenant.
The tenant carries the burden of proof to establish that the landlord breached section 38 RTA by failing to respect her right to quiet enjoyment and privacy. While the tenant has made serious allegations regarding the landlord’s conduct, she has failed to provide any independent evidence to support her claims. This includes the absence of a Police report or other third-party documentation that might substantiate the incidents described.
The landlord has consistently denied all allegations, and in the absence of corroborating evidence from the tenant, the Tribunal is unable to determine on the balance of probabilities that the landlord breached the tenant’s right to quiet enjoyment as required by section 38 RTA.
I find that there is insufficient evidence to support the tenant’s claim that the landlord breached section 38 RTA. Therefore, this aspect of the tenant’s application is dismissed. Filing fee
As the tenant has not been wholly or substantially successful with her claims, it is not reasonable to order the other party to reimburse the filing fee.

Tenancy Tribunal case 4797737 — Harassment at 25 School Road, Robinsons Bay, RD 1, Robinsons Bay

At a glance

Tenancy Tribunal case 4797737 — Harassment at 25 School Road, Robinsons Bay, RD 1, Robinsons Bay

At a glance

Claims & awards

Order

Reasons

Is the tenant entitled to refund of the balance of the bond?

Should exemplary damages be awarded for non-lodgement of the bond?

Is the tenant entitled to compensation for breach of quiet enjoyment and privacy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenant entitled to refund of the balance of the bond?

Should exemplary damages be awarded for non-lodgement of the bond?

Is the tenant entitled to compensation for breach of quiet enjoyment and privacy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions