What was Tenancy Tribunal case 4818177 about?

The tribunal order states: Marco Helm must pay [The tenant/s] $4,720.44 immediately, calculated as

How much money was awarded in case 4818177?

Compensation: $360.00 awarded to tenant; Compensation: $840.00 awarded to tenant; Compensation: $800.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Overpayment: $200.00 awarded to tenant

What type of tenancy dispute was case 4818177?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4818177?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10715197-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4818177 about?

The tribunal order states: Marco Helm must pay [The tenant/s] $4,720.44 immediately, calculated as

How much money was awarded in case 4818177?

Compensation: $360.00 awarded to tenant; Compensation: $840.00 awarded to tenant; Compensation: $800.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Overpayment: $200.00 awarded to tenant

What type of tenancy dispute was case 4818177?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4818177?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10715197-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4818177 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4818177 — net $4,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent overpayment	$200.00	Rent overpayment
Compensation – driveway	$360.00	Compensation – driveway
Compensation – hot water cylinder	$840.00	Compensation – hot water cylinder
Compensation – quiet enjoyment	$800.00	Compensation – quiet enjoyment
Exemplary damages – failure to appoint an agent	$500.00	Exemplary damages – failure to appoint an agent
Exemplary damages – notice	$2,000.00	Exemplary damages – notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,720.44
Total payable by Landlord to Tenant	$4,720.44

Claims and awards in Tenancy Tribunal application 4818177 — net $4,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent overpayment	$200.00	Rent overpayment
Compensation – driveway	$360.00	Compensation – driveway
Compensation – hot water cylinder	$840.00	Compensation – hot water cylinder
Compensation – quiet enjoyment	$800.00	Compensation – quiet enjoyment
Exemplary damages – failure to appoint an agent	$500.00	Exemplary damages – failure to appoint an agent
Exemplary damages – notice	$2,000.00	Exemplary damages – notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,720.44
Total payable by Landlord to Tenant	$4,720.44

Order

Marco Helm must pay [The tenant/s] $4,720.44 immediately, calculated as shown in table below:
No other orders are made.

Reasons

Both parties attended the hearing. The landlord joined remotely. His counsel, Mr Robert Brinkworth, was physically present. The applicants attended in person with [The tenant’s representative], their counsel acting on a pro bono basis.
A court-appointed [interpreter] was made available at the request of the respondent. The bulk of the hearing was conducted in English.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
The tenants sought $800.00 compensation and exemplary (“compensation”) damages of $24,700.00, when the application was lodged on 13 March 2024.
The notices of hearing were sent out on 7 May 2024. On 10 June 2024 a request for representation was made by the respondent and approved. Letters advising this were sent to the parties on 11 June 2024. Unfortunately, the letters were sent in template format and, while they may have been confusing, no clarification was sought by the applicants.
The tenants were later contacted by Mr Brinkworth prior to the hearing in what I understand was an attempt to reach a settlement. The tenants claim he warned them of potentially incurring legal costs of up to 70% if they were unsuccessful.
The applicants’ subsequent concern regarding possible legal costs saw them, on 25 June 2024, the day before the hearing, reduce their total claim to $5,800.00. This reduction was on the advice of [The tenant’s representative]. The intention of this reduction appears solely to bring the claim under the $6000.00 level that r s 93(2)(b) Residential Tenancies Act 1986 (“RTA”) permits counsel representation by right.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Preliminary matters
[The tenant’s representative] submitted that, given the claim was less than $6000.00 at the date of the hearing, counsel should not be granted a right of audience.
I heard submissions on this before concluding it appropriate to proceed with counsel present for the hearing.
The first reason for this is that to allow a party to reduce their claim to such an extent, and with such late timing, that the other party’s counsel would lose the right of audience would, in my mind be manifestly unfair and a dangerous practice that could be exploited maliciously by a party to inflect additional costs on the other party. I do not consider that to be the case here but I make the point on general principle.
Even if I was wrong regarding a late removal of a previous right of audience due to a late reduction in a claim to less than $6,000.00, I consider a second reason. As the adjudicator I may allow any party to be represented by counsel if it considers that it would be appropriate to do so, having regard any significant disparity between the parties affecting their ability to represent their respective cases (s 93(3)(b) RTA). Such a disparity would have been created, given the respondent’s remote attendance and expectation of counsel support.
The matter was set down for a full day. An additional cost of an interpreter had been incurred. Further, considering the requirement of s 85 RTA that the Tribunal exercises its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes, proceeding was the appropriate approach. Background
This tenancy commenced 1 March 2021. The meeting of the landlord and the tenant had previously occurred via social interaction. There was some debate as to the extent of this however I do not consider it material to the issues to be determined here.
The tenants were in a fixed term tenancy prior to this tenancy. On 3 February 2021 the parties signed the tenancy agreement. The tenants gave early notice in that fixed term tenancy to take up this tenancy. They stated that was required as the landlord wanted them to commence the tenancy as soon as possible. Some three weeks later one tenant met on site for what she expected to be a key uplift and initial inspection. That did occur however the meeting scope went further with a draft of additional terms to the tenancy agreement presented to the tenant. This was drafted by [witness 1] who appeared in person as a witness. The landlord was joined by phone while his wife was physically present. The phone call was at times collective by speakerphone but later one-on-one between the tenant and the landlord.
The tenant stated she had no choice but to agree to the additional terms as they were committed to the move in with no other option. Witnesses
[Witness 1] was called by the respondent as a witness and she appeared in person. A previous written affidavit had been tabled.
The witness confirmed she was approached to give advice to the landlord, given her previous experience as a property manager. She confirmed she was not involved in the drafting or execution of the tenancy agreement dated 3 February 2021. Between that date and the meeting and later presentation of the variation on 25 February 2021 she was approached to, or offered to, provide informal support to the landlord. She drafted the variation document that was presented at the meeting of 25 February. She confirmed the terms within reflected what the landlord instructed her to include. The further right for the landlord to potentially add a tiny home on the property was withdrawn by the landlord at that meeting.
[Witness 1] conducted the initial inspection and produced an inspection report. This report noted the requirement for $300 annual payment of water, commencing in November that year. The reason for that month being stipulated is more than likely the anniversary from the owner’s previous annual payment.
She stated the water was primarily sourced via the spring.
She then conducted routine inspections, again on an informal basis rather than through any agency, until July 2022 when she ended the role due to health issues at that time.
When asked regarding any discussion later in the tenancy regarding the landlord’s intention of selling of the property, she was uncertain when but recalled the landlord calling her and saying he was looking to sell the property and seeking her advice.
A second witness, [Witness 2], was telephoned during the hearing. This followed the prior submission of a written statement from her. Her evidence pertained to the reasons cited by the landlord for the termination of the tenancy and as such it is addressed in that section below. Claims
These claims were confirmed as compensation of $800.00, being made up of $600.00 water charges and $200.00 of overpayment of rent.
The other claims were consistent with the original application, being exemplary damages or compensation for the landlord’s failures regarding RTA sections 16A, 38, 45, 54 and 60AA remained. Rent increase
The landlord accepted the increase in rent served on 11 August 2022 was not correctly served with less than 60 days’ notice before effect. The tenants sought $200.00 of rent overpayment and this is awarded. Water charges
The premises did not have a reticulated water supply. There were two 25,000l tanks supplied via rainwater (roof) and also from piped spring water from a neighbours property. There was a filtration and treatment system that would satisfy the requirement per s 45(1)(ca) that the landlord shall provide adequate means for the collection and storage of water.
The issue raised by the tenants was an annual fixed cost of $300.00, paid to the neighbour in advance, for the right to draw water from their spring. They sought compensation for the $600.00 paid to the neighbour during the tenancy.
Section 39 RTA states (in part), regarding outgoings:
The landlord is responsible for all outgoings in respect of the premises that— a. are incurred whether or not the premises are occupied; and b. are incurred for common facilities.
The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.
Without limiting the generality of subsection (3), the tenant is responsible for the following charges, incurred during the tenancy, in respect of the premises: a. electricity and gas: b. telephone and Internet: c. supply of water if the water supplier charges for water provided to the premises on the basis of consumption.
The payment for the spring water supply was not required at commencement as the “annual” charge did not renew until later that year.
I do not consider the arrangement for the supply of spring water to be a common facility and therefore a landlord responsibility. It appears the provision of the water from the spring was at the discretion of the neighbouring landowner, subject to the annual payment. The terms of any supply agreement beyond the payment are minimal. If the spring supply was not available or a decision was made to not continue any arrangement with the neighbour, the primary supply via rainwater collection was appear adequate and sufficient to meet the landlord requirements per s 45. So how should any such annual payment be treated under s 39? Specifically, is the supply of water (at the annual cost) provided to the premises by the neighbour based on consumption? Further, was the supply of spring water a term of the tenancy or a separate agreement with the neighbour?
The spring water had two attractive benefits. Firstly, it is reasonable to assume that the quality and reliability of the spring water would be superior or preferrable to that sourced via the roof from rainfall, especially during dry periods. It is not unusual that premises such as this, relying solely on rainwater, require additional water top ups, typically provided by a water tank delivery. In such instances the cost of any delivered water is a cost to the tenant as it is consumption driven.
By the time of the next annual fee payment, it is considered more than likely that the exiting rainwater collection system would have been apparent to the tenants. They had to option to decline paying the neighbour the annual fee, or alternatively to raise the issue of payment liability at that time.
I have considered the two payments during the tenancy by the tenants and the benefits received. Despite the poor drafting of the arrangement, I consider the supply of the spring water was optional. It would have been better to have left it as that and for the landlord to have brokered an introduction between the neighbour and the tenants for them to agree supply of water on any such terms as they choose.
While the tenants claimed the matter was not raised earlier as they were worried “he would terminate our tenancy”. I am not convinced that would have been the outcome as I cannot see why the landlord would have been overly invested in their continued consumption of the spring water. Given the payment was to the neighbour.
While it was an annual cost, that cost covered the simple infrastructure as well as “unlimited” water consumption. The arrangement was unusual, but I consider the tenants had an acceptable alternative water capture and storage on site if they did not want to continue with the spring water supply.
I decline to return the $600.00 cost of spring water, as paid to the neighbour by the tenants. Failure to maintain
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
It is well settled that the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenants claim that the landlord failed to remedy two significant repair issues within a reasonable timeframe and claimed exemplary damages. I consider each issue in turn.
A third maintenance issue related to signs of a water leak near the shower. This was not attended to by the landlord until near the end of the tenancy although reported by the tenants. The tenants said the leak did not affect them. Their main concern was possibly liability later. The issue of landlord access for the repair is addressed under quiet enjoyment. Hot water cylinder/wet back
On 1 September 2021, the hot water cylinder was discovered to be leaking. The tenants advised the landlord and an electrician attended. The electrician disconnected the cylinder and advised the tenants not use the fireplace as it was a wet back. Tenants were without hot water or the use of the fireplace for one week. A solar hot water supply to the cylinder existed as well.
One week later, a plumber configured a small temporary hot water cylinder by disconnecting the hand washing basin in the only toilet as a water supply. The solution provided hot water pending a full replacement of the hot water cylinder. This replacement was delayed and only made in late January 2022.
The cost of the interim hot water solution was an increased electricity cost due to the loss of any solar hot water previously available, or the benefit of the wet back heating during more inclement weather. The fireplace remained unusable as the source of heating during this period.
The landlord explained there was a three-month delay in sourcing his preferred replacement hot water cylinder. While such a preference may be understandable, the extended period of the interim solution had an adverse impact on the tenants. That impact might have been mitigated through sourcing an alternative, equivalent hot water cylinder sooner.
I consider some compensation for the additional costs incurred by the tenants, as well as some inconvenience to them, is appropriate.
I have calculated compensation on the basis of 21 weeks at $40.00 per week. A total of $840.00. Driveway
On 5 May 2023 a large slip over the access driveway blocked vehicle access from the road to the house. The tenants notified the landlord who responded that he would organise a solution, also confirming to them that he was in [country] at that time.
The trigger for the slip was a significant weather event. A neighbourhood effort restored foot access to the premises while the actual repair was pending.
There were delays in the repair that appear to have been a result of some dispute as to where slip material could be disposed of. According to the tenants the contractor engaged by the landlord stopped after two days after being denied free dumping; being advised by the Tasman District Council to dispose of it further away at a higher cost.
The landlord asked the tenants to contact the TDC as well as Network Tasman (the local electricity lines company) as he attempted to source free disposal of the slip contents and possible contribution towards repairs.
During this period the tenants continued to access the premises by foot. This was at times difficult due to darkness and/or loose or slippery conditions underfoot. As the tenants had two primary school-aged children the access challenge was all that more significant.
While the landlord was overseas, his wife remained in the area and was in contact with the tenants at the time of the slip. I was curious why the landlord appeared to rely on the tenants thereafter to act as his conduit locally, rather than her. No reasonable explanation was provided by the landlord.
I do not consider the landlord has committed an unlawful act under section 45. The issue was more his timeliness in resolving the two major maintenance issues raised by the tenants. In both failures to maintain here I consider the tenants experienced an adverse impact longer than necessary, primarily for the benefit of the landlord. I consider grounds for compensation are established.
I have not considered the subsequent repaired driveway and problems with the levels and car clearance cited by the tenants as something that should be compensated.
In determining appropriate compensation, I have placed more weight on the tenants recounting of the impact on them than the alternative suggestion of the landlord that the impact was minimal with a time of “2-3 minutes” to walk the driveway. I am mindful of the time of the year (shorter days), the continued wet and unstable condition, and the reality of guiding or assisting two young children to and from the premises on a daily basis, often more than once. As the landlord acknowledged in his submission, the conditions were “muddy and slippery”. Such a condition was reinforced by a written statement by [Witness 3], who had cause to visit the premises for a meeting with the tenants not long after the slip.
The slip was caused by an unusually heavy rain event. Some discomfort and disruption to the tenants was inevitable and the landlord would not be expected to fully compensate. But the landlord could have moved quicker to remediate the access issue.
The tenants stated the driveway was finally made accessible to vehicles after 26 days. While the actual slip was not preventable, the tenants claim the delayed repair was, being solely caused by efforts of the landlord to obtain free or low-cost disposal, made more difficult due to his being overseas. They claim the contractor told them he could have repaired the driveway within a week.
I have based tenant compensation on 18 days of impact beyond a repair timeframe that might have been reasonably achieved. The invoiced dates provided by the landlord are not conclusive to me on establishing a timeline of impact or repair. Allowing $20.00 per day as compensation for the extended loss of full access, a total of $360.00 is awarded. Quiet enjoyment
[The tenant/s] claims the landlord has interfered with their 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) Residential Tenancies Act 1986.
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).
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
I do not consider the actions of the landlord amount to harassment so there can be no order for exemplary damages under s 38.
However, I do find the landlord interfered with the reasonable peace of the tenants on a number of occasions. Specifically, I have considered the subsequent variation of the tenancy agreement after signing and just prior to the tenant moving in, the requested involvement of the tenants in engaging with third parties to resolve issues relating to the driveway repair, and the access by the landlord to areas of the premises without permission while on-site for a specific repair task.
The tenancy agreement was signed on 3 February 2021 but just prior to key uplift, a meeting of the parties was held and a “additional clarification” document tabled (25 February 2021). This was drafted by [Witness 1] on the instruction of the landlord. This second document introduced a number of additional terms that should have been drafted into the tenancy agreement. By the date of presentment the tenants, having a signed tenancy agreement, had given notice at their prior premises and were placed in a difficult position. That this caused some angst for the tenants is accepted.
Later, the continued involvement of the tenants in third-party liaisons on behalf of the landlord has been discussed. The compensation for the driveway slip awarded above addressed the impact of that event and sustained loss of adequate access but the requested involvement of the tenants by the landlord is considered here to have been unreasonable.
Lastly, the landlord accepted he extended his activities in the premises during May 2023 beyond the repair of the leaking shower and environ. These extensions involved him entering other areas of the premises that the tenants would rightly have considered out of bounds. This upset the tenants.
The landlord mentioned several times his surprise that such issues were raised via this application rather than at the time. The tenants stated more than once that they had concerns regarding any confrontation with the landlord on such occasions.
I have considered the various interferences and make a compensation order of $800.00 for losses of quiet enjoyment. Failure of the landlord to appoint an agent while overseas
[The tenant/s] claims the landlord has been overseas for longer than the Act permits without appointing an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.
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 16A(6) and Schedule 1A Residential Tenancies Act 1986.
The tenant stated such a failure resulted in problems “not being solved timely and affecting the minimum standards of tenancy”. These are addressed specifically under Failure to Maintain above.
His absence was confirmed after the hearing by his counsel providing travel documents. These confirmed the landlord left New Zealand on 20 April with the intention to return to New Zealand on 23 May 2023, but his travel was extended for personal reasons (a wedding in Nepal), with the return to New Zealand now 19 June 2023. Therefore, the initial intended period overseas was 33 days which then extended to 60 days.
Prior to the breach he had demonstrable access to an experienced property manager and he had previously sought advice from her. She was not acting in any agent capacity during this period.
It is curious that his wife did not take a more active role when he was overseas.
More recent developments in communication have mitigated in same way the historic tyranny of distance that meant tenants were particularly exposed when the landlord was overseas for an extended period without a local agent. The responsiveness of the landlord, albeit time zone constrained, was as reasonable as might be expected by a landlord within New Zealand. The issue was the subsequent delay in action.
The biggest impact the failure to appoint an agent was the request or reliance of the landlord on the tenants to conduct third-party enquiries and follow-up that clearly had no requirement of a tenant. The landlord suggested a previous relationship before the tenancy. This may have given rise to some hope or expectation of such assistance, at least in the mind of the landlord. However, such tasks requested of the tenants did not require any specific skills that the tenants may have had and it would seem more appropriate for the landlord or his wife to have performed those tasks.
As the landlord has not appointed an agent, they have committed an unlawful act. Exemplary damages are considered below. Retaliatory notice
On 10 July 2023 the landlord gave the tenant a notice ending the tenancy on 10 October 2023. The tenant claims the notice is retaliatory and sought exemplary damages. Any application to have a notice deemed retaliatory must be lodged within 28 days of receipt of that notice. The application was lodged on 13 March 2024 – some 246 days later and therefore well after 28 days as required.
In Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081, the Judge stated: “In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s 54...”
Consequently, the Tribunal does not have jurisdiction to make a declaration on whether the 10 July 2023 notice is retaliatory under s 54 RTA given that no application has been made within 28 days from the date of the notice.
Counsel for the applicants submitted that while the time limit to seek a declaration of retaliatory notice had been clearly exceeded in this case, that did not preclude an order for exemplary damages under s 54(3) RTA.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.
I find however that the jurisdiction to make an award of exemplary damages under s54(3) is predicated on the Tribunal first having declared that the notice is retaliatory. Subsection (3) states the “giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect”.
Working backwards, to be able to make such a declaration (that the notice is retaliatory and of no effect) under subsection (2), subsection (1) requires an application to have been lodged within time.
Subsection (1) sets a 28-day time limit for any such application. In this case, no application can be made as it is well out of time, the Tribunal cannot determine that the issuance of the notice constitutes an unlawful act under s 54.
In the upshot, I find that the Tribunal is precluded to make an order for exemplary damages under s 54(3) RTA because the tenant’s time to seek a declaration of retaliatory notice had been exceeded.
It is not unusual where a notice to terminate is served and the tenant suspects some retaliatory motivation, that some facts cross across into a separate claim regarding any claimed landlord entitlement to issue a notice to terminate. Notice to terminate without entitlement
The tenants claim that the landlord has breached their obligations under section 60AA.
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.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
On 10 July 2023 the landlord gave the tenant a notice ending the tenancy on citing as the reason that the premises are to be put on the market by the owner within 90 days after the termination.
A brief timeline of related events follows: 6 July 2023Harcourt market appraisal completed remotely 10 July 2023The landlord notice to terminate as served on the tenants AugustAn agent from Ray White visited the property. The tenants claim he advised them he might be marketing, or interested in buying, the property if the owner does want to sell. They believe the agent indicated some uncertainty regarding that intent of the owner. 25 August 2023The tenancy ends via tenant notice 26 August 2023K Real Estate property appraisal conducted 30 August 2023Bayleys property appraisal conducted SeptemberOwner calls [Witness 2] seeking advice OctoberThe property is listed with Bachcare as short-term accommodation 14 February 2024The property is re-advertised as a residential tenancy April 2024K Real Estate property reappraisal conducted and an agreement to sell the house drafted (1 May 2024) but not signed. 13 May 2024Listing delayed after receiving the notice of hearing for this application (the application was lodged 13 March 2024)
The landlord submitted he moved into the premises to conduct repairs between 26 August 2023 and 22 January 2024. He stated a number of short- term stays were accepted during this time as a means of funding the repairs.
While the tenancy ended earlier via a tenant notice, the landlord notice of 10 July 2023 established 10 October 2023 as the last day of the tenancy. The reason for the notice was the premises were to be put on the market by the owner within 90 days after that date. 90 days from 10 October 2023 is 8 January 2024.
The first agent appraisal was made four days before the notice was served. The tenants claimed a breach due to that appraisal, but I consider it more than likely that the appraisal was a computer-based assessment with no physical visit to the premises.
The landlord claimed the decision to sell the premises was prompted by an earlier health concern identified in March 2023, and because the property was becoming a financial burden.
A written statement from [Witness 2], dated 19 June 2024, had been provided and was reviewed at the hearing. She stated that in September 2023 she was contacted by the owner. In that call she said the owner “informed me about his plans to convert his property into an AirBNB rental” and sought her advice. She claimed he mentioned he had recently given the tenants notice “under the guise of selling his property” although he confided to her that “his true intention was to cease long-term rentals”.
This evidence raised a number of questions and it was decided to call [Witness 2]. She took the call and the opportunity for questions to be asked of her provided to both parties. I found her recounting on the call to be consistent with the statement and she appeared to have a very good recall of the events.
At times there may be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events. Given the premises were not put on the market within 90 days after termination, the evidential onus shifts to the landlord to show that there was a legitimate intention to sell the property in serving the notice in July 2023.
The lapse between the health notification in March and the notice in July is considered sufficiently lengthy to lessen any linkage of the former news with the later notice.
The tenants stated that when served the notice they requested the landlord extend the notice end date to April 2024 as they were part of a Habitat for Humanity partnering that would see them move into a rent-to-own arrangement at that time. They said the landlord declined this as he said he needed to sell as soon as possible. At that time the only sales agent engagement was the Harcourts remote appraisal of 6 July 2024.
The actions of the landlord once possession returned did not see the premises listed quickly. He occupied the premises and mixed short-term stays and repair activities. He mentioned a potential impact of the nearby forest harvesting on marketing the property but I consider it more than likely this activity was already underway before the decision to serve the notice to terminate.
I struggle with the sequence of events in 2024. The 90-day period to have listed ended in early January 2024 with no significant activity evident. The premises were relisted on 14 February 2024 for a residential tenancy. It was not until April that further sales agent activity recommenced (after this tenant application was lodged). I acknowledge the landlord’s statement that he decided to not list the premises for sale on or around 1 May 2024 because of this hearing date looming. But given the application was lodged before the April agent activity, I am not certain the pending hearing on its own would have stopped a motivated seller, recalling the urgency to sell due to health and financial reasons.
Ironically, the April reactivation by the landlord of any market appraisal was around the same date the tenants had requested an extension to.
There were a number of times where the friendship between the parties was cited by the landlord. The extent of any relationship as claimed was not matched by the tenants’ response.
If the friendship was such that the requested tenant extension of the tenancy to accommodate the tenants rent-to-buy commencing was granted, a different perspective on the earlier requests to the tenants by the landlord that impacted their right to quiet enjoyment may have resulted. The alternative view, that the drivers of the landlord were such that there was no flexibility for any extension is not reflected in the later timeline showing a lack of significant related activities.
I consider it more likely than not that the landlord did not intend to put the premises on the market within 90 days of the tenancy ending. I base this on the limited and superficial steps taken prior and immediately after the notice. I find the evidence of [Witness 2] to be compelling. It may be coincidental but the period between the intended tenancy end date and the subsequent readvertising in February this year is the optimal period for profitable short-term stays in this region. The tenants cited this as a reason for their moving early, they were concerned of availability of alternative rentals until their move in April 2024.
The final concern here is the failure of the landlord to list the premises within the 90-day period after the end of the tenancy, as required when terminating under s 51(2)(a) RTA. I find the timeline and reasons for the delays in even entering into a sales agreement are not reasonably supported.
I find the landlord give a notice to terminate the tenancy, citing an intention to market the premises within 90 days. That is not supported by his subsequent activities. I find the landlord has committed an unlawful act.
Exemplary damages are considered below.

Should exemplary damages be awarded?

As I have determined that the landlord intentionally committed two unlawful acts I must decide if it is appropriate to award exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) RTA
In Birch v Otautahi Community Housing Trust (referred to above) the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten or been unaware, as a landlord should have systems in place to ensure this does not happen. Failing to appoint a local agent while overseas
There was a clear failure to meet this requirement. I consider the landlord did, or should have known, of this obligation and his failure resulted in extra effort and impact on the tenants in dealing with matters that were not in a tenant’s remit. Having considered the respective submissions and evidence, I consider an order of $500.00 reflects the act and impacts on the tenants but balances this being the first such act by this landlord. Landlord acting to terminate tenancy without grounds
The landlord served a notice to terminate the tenancy by notice for a reason that was not reasonably acted upon or sustained.
Again, I have considered the impact of this and considered an order for exemplary damages is appropriate.
I order $2000.00 as exemplary damages in this instance, again balancing the impact on the tenants, the public interest in ensuring tenancies are not terminated on unsubstantiated grounds, and this being the first-time the landlord has been found to have committed such an unlawful act. Costs
Part 3 of the RTA relates to the Tenancy Tribunal and sets out the mechanical provisions under which the Tribunal operates.
Included in Part 3 of the RTA is section 102, which relates to costs.
As the applicants have been substantially successful, I must return their filing fee.
Section 102(2) confirms that the Tribunal “may make an order” where “any of the parties was represented by counsel”. Subsection 3 confirms that an order may be made to a party for “the reasonable costs of that other party in connection with the proceedings.”
The question then becomes whether the Tribunal should exercise its discretion to award legal costs.
The successful applicant was represented on a pro bono basis. Given that, there are no actual, direct legal costs incurred by the applicants that might be returned by order via s 102. Any recognition of the support of counsel is left between the applicants and counsel, as they may considered appropriate.
The respondent engaged counsel as a right, given the monetary amount claimed in the application. I note the respondent was not in Nelson at the time of the hearing and he also requested the support of an interpreter. Both of these facts may have factored in his decision to engage counsel. The respondent’s counsel was invited by minute to make a submission regarding costs, with the applicant’s counsel to respond. This was issued before this order due to my absence overseas following the hearing. The reversal on usual timetabling for costs was predicated on my foreshadowing that the applicants’ would be successful in a monetary award. The preference of counsel was to wait. He explained: [2] It is respectfully submitted that this direction is premature considering that any memorandum on costs will need to consider the degree to which the applicant is successful in their claims, and conversely the degree to which the respondent is successful in resisting the applicant’s claims.
A brief response was received from [The landlord’s representative]. It read in part: [2]...Costs are discretionary. However, I respectfully suggest that in this situation, the Landlord could never justify costs in his favour. [3]...The Tribunal is a low-cost venue for tenants and landlords. Strategic threats of crippling costs should never compromise access to justice in the Tribunal's jurisdiction. [4] If not for me representing the Tenants pro bono, they could not have proceeded for fear of costs and would have felt very disadvantaged by the other party having counsel.
The minute was issued before I concluded my determination. Given I have now found unlawful acts were committed by the landlord, as well as a number of grounds for tenant compensation, the caution of Mr Brinkworth in waiting may have been justified. I agree with [The landlord’s representative] that costs are discretionary, and I see no reason to consider any cost order in favour of the losing party, given the success of the applicants.
I make no order for costs beyond the application filing fee. The respondent is to carry his legal costs. Suppression
Section 95A RTA states regarding suppression orders that 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.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenants requested suppression in their application. As they have been substantially successful, suppression is ordered. Delay in this order
This determination has been unexpectedly delayed. I apologise to the parties for this and appreciate their patience. .

Tenancy Tribunal case 4818177 — Exemplary damages

At a glance

Tenancy Tribunal case 4818177 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions