Published tribunal order
Tenancy Tribunal case 4818277 — Tenancy dispute at 56 Paynters Avenue, Strandon, New Plymouth 4312
Decided 5 Jun 2024 · Published 5 Jun 2024 · Application 4818277
- Filing Fee
Order
- Michael and [The party] are to pay [The tenant/s] and [The tenant/s] the sum of $3,220.44 immediately (being $3,200 for the refund of the bond and $20.44 for the filing fee).
Reasons
- Both parties attended the hearing. The tenant attended by telephone as they are no longer local to the area. Dr Elkin attended on behalf of the tenants.
- The landlord’s agent is Triple M Limited and not Triple M Properties Limited (as named on the application as the agent of Mr and Ms George). The application was amended to reflect this with the consent of the tenant.
- The tenant has applied to the Tribunal following concerns about their bond. The tenant says that the bond has never been lodged at the Bond Centre despite it being paid by the tenant (s 19, Residential Tenancies Act 1986 (RTA)).
- The tenant says that the tenancy has ended but they have not been refunded their bond. No bond is lodged with the Bond Centre. They say they have been refunded $200 so they seek $3,200 back. The sum of $3,400 is receipted as being paid as bond on the tenancy agreement so I am satisfied that the sum was paid. The landlord also did not dispute this. The crux of the dispute and the concern expressed by Mr and Ms George is that the bond was paid to Triple M Limited not to them.
- The tenant has made their application against Michael & [The party]. Triple M Limited are named in this application but only as their agent (rather than as a stand-alone party). There was some confusion at the hearing as to whether the application had been made to include Triple M Limited as a party in its own right.
- The application before me was made in the name of “TRIPLE M PROPERTIES LIMITED - as agent for Michael & [The party]”. This means that the application is made against Michael & [The party] and simply records that Triple M Limited are their agents.
- The parties were surprised at this but nevertheless this is the position before me today.
- I set out that the hearing could proceed against Ms and Ms George but I could not proceed against Triple M Limited at the hearing unless the application was served with it named as a party in the case (and I also note with the correct legal name).
- The tenant confirmed that if she was going to get an order for the return of the bond today from Mr and Ms George she would like that to proceed rather than to wait and bring the claim on another occasion against Triple M Limited.
- The landlord may have preferred the tenants to bring their claim against Triple M Limited but ultimately this is the tenants’ application to bring.
- Mr and Ms George are frustrated that their agent, Triple M Limited, with Stacey Kemp as a director has not lodged the bond and they say that they have not had it.
- I understand that Mr and Ms George are upset and they feel that they have done nothing wrong. I do have sympathy with their situation. However, the tenant has also not done anything wrong, and they are now in the very unfortunate position of not being refunded their bond.
- The tenancy agreement records that the tenancy began on 10 July 2023. There is no dispute the tenancy has now ended. The agreement records the landlord as “Triple M Limited as agent for Michael and [The party]”. The contractual relationship recorded in the tenancy agreement is therefore between the tenant and Michael and [The party] as the landlord. The tenancy agreement sets out that Triple M Limited is the agent for Mr and Ms George. This means that the Georges are the “principal”.
- In such a relationship it is important to note that claims may be bought by and against the principal. For instance, if the tenants had breached the agreement (there is no suggestion that they have) Mr and Ms George could have bought an application themselves in their own name (rather than having to rely on Triple M Limited to do so). Equally, this means claims can also be bought against them.
- A principal is normally liable for all acts of an agent within the agent’s authority. Collecting a bond is part of a property manager’s usual activities.
- Therefore, I am satisfied that Michael and [The party] is the party ultimately responsible for the safe keeping of the bond and the lodging of the bond at the Bond Centre and if it is not lodged, its return at the end of the tenancy unless there is a claim. There is no claim against the tenants.
- I have therefore ordered that Mr and Ms George make good this deficiency.
- If Mr and Ms George indicated that they have an outstanding application in the Disputes Tribunal involving the agent. They may want to pursue reimbursement in respect of this order in that forum. The outcome there will be for that Tribunal to decide.
- The tenant has been wholly successful and so I have also awarded the filing fee.
- Neither party sought name suppression so I have not awarded this.