What was Tenancy Tribunal case 4838229 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4838229?

Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Key Charge: $60.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Rent Overpayment: $455.00 awarded to tenant

What type of tenancy dispute was case 4838229?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4838229?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11411385-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4838229 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4838229?

Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Key Charge: $60.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Rent Overpayment: $455.00 awarded to tenant

What type of tenancy dispute was case 4838229?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4838229?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11411385-Tribunal_Order_Redacted.pdf.

Unit/Flat 2, 32 Esmonde Road, Takapuna, Auckland 0622 Tenancy Tribunal Case 4838229 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4838229 — net $4,105.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Bond refund	$1,820.00	Bond refund
Exemplary damages - Bond	$1,000.00	Exemplary damages - Bond
General damages - Quiet enjoyment	$750.00	General damages - Quiet enjoyment
Rent overpayment	$455.00	Rent overpayment
Key charge	$60.00	Key charge
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,105.44
Total payable by Landlord to Tenant	$4,105.44

Claims and awards in Tenancy Tribunal application 4838229 — net $4,105.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Bond refund	$1,820.00	Bond refund
Exemplary damages - Bond	$1,000.00	Exemplary damages - Bond
General damages - Quiet enjoyment	$750.00	General damages - Quiet enjoyment
Rent overpayment	$455.00	Rent overpayment
Key charge	$60.00	Key charge
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,105.44
Total payable by Landlord to Tenant	$4,105.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants name and identifying details.
The Guest Home Joan Burchell, Hg8 New Zealand Limited and The Guest Home Limited must pay [The tenant/s] $4,105.44 immediately, calculated as shown in table below. DescriptionTenant Bond refund$1,820.00 Exemplary damages - Bond$1,000.00 General damages - Quiet enjoyment$750.00 Rent overpayment$455.00 Key charge$60.00 Filing fee reimbursement$20.44 Total award$4,105.44 Total payable by Landlord to Tenant$4,105.44

Reasons

The Tribunal must consider an application filed by the tenant.
Only the tenant appeared at the hearing today. I am satisfied that the landlords have been properly notified of the hearing, and therefore, I will proceed to consider the claim in their absence.

BACKGROUND

The tenant seeks various orders in relation to a tenancy which has since ended. I note there have previous hearings in the Tribunal, including a hearing where Ms Fu appeared (I will summarise that further below). But suffice to say the background is now reasonably involved.
On 19 June 2023 [The tenant/s] entered into a tenancy agreement for a room at unit / flat 2, 32 Esmonde Road, Takapuna, Auckland.
The tenancy agreement is confusing and far from a standard that would normally be seen in residential tenancies in New Zealand.
The agreement is vague as to who the contracting party is, other [The tenant/s], with the agreement recording various names including: a. Ace Accommodation b. The Guest Home c. T Hepburn d. Al Burchell e. Joan Burchell f. “owners”
The agreement states that it was a “flatmate rental agreement”, and further that: As you sharing a room in a home. You fall under the flatmate legislation and Not within the Residential Tenancies act.
The tenants evidence is that she paid a bond at the start of the tenancy, as well as a fee for keys.
Later during the tenancy, it is apparent that a significant conflict arose between the owner of the premises, and the Burchells. I can see that the owner then made efforts to take over managing the tenancy or enter into a new tenancy agreement entirely, demanding the tenant pay the owner rent and a new bond.
The tenant determined that she did not wish to continue living in the premises, so she terminated the tenancy.
On 14 April 2024 the tenant filed this application with the Tribunal.
I summarise two previous orders of the Tribunal in this case: a. 9 September 2024: An order that Ms Fu be added as a party, with the Tribunal understanding at that time that Ms Fu was the owner. b. 16 January 2025: A hearing was convened, but adjourned. Ms Fu attended who and advised that she was only a general manager for HG8 New Zealand Limited, the owner. The Adjudicator determined the hearing notice needed to be served on that company as the owner / landlord. The Adjudicator records:
A directions conference was held on 9 September 2024. Cherry Fu was added as a landlord party to the proceedings. Ms Fu attended the hearing today, 16 January 2025. Ms Fu advised that the owner of the property at the relevant time was HG8 New Zealand Limited, of which Ms Fu was the general manager. Ms Fu advised that she no longer works for HG8 New Zealand Limited.
Ms Fu advised the Tribunal that HG8 New Zealand Limited signed an agreement (referred to by Ms Fu as a “mandate”) with The Guest Home Ltd. The agreement allowed The Guest Home Ltd to manage the property on behalf of HG8 New Zealand Limited.
On 20 August 2023, Ms Fu emailed The Guest Home Ltd cancelling their authority to manage the property.
The Notice of Hearing and tenant’s application have not been served on HG8 New Zealand Limited. This needs to occur.
There is an agreement on the file which is confusing. It is titled “Ace Accommodation/The Guest Home Rental Agreement” and purports to exclude the jurisdiction of the Tribunal. It does not reference HG8 New Zealand Limited and appears to be an agreement between The Guest Home Limited and the tenant. Under the hearing “Host Details and address of property,” the name recorded is “Mrs. Mr Burchell...The Guest Home.”
The tenant advised the Tribunal that the majority of her dealings were with Llewellyn Burchell whom she believed to be the landlord. Most of the tenant’s claims relate to alleged conduct by Llewellyn Burchell.
The Notice of Hearing and tenant’s application have been sent to The Guest Home Ltd via email however, they have not been sent to the company’s registered address or address for service noted on the companies register. I consider that this needs to occur before the hearing can proceed. See section 136(1)(b) RTA.
The hearing was reconvened before myself on 10 February 2025. In attendance was the tenant and her father. There was no appearance by any of the respondents or their representatives. TENANT’S CLAIMS
The tenant’s claims are as follows: a. Refund of bond ($1,820.00). b. Exemplary damages for failing to lodge the bond. c. Exemplary damages for breach of quiet enjoyment. d. Compensation for breach of quiet enjoyment. e. Compensation for rent overpayment between of $455.00, between 24 August 2024 and 30 August 2024. f. Filing fee.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

ANALYSIS

The Tribunal must consider a range of claims from the tenant, but prior to determining those claims, there are two preliminary matters to determine, that is whether this is a tenancy that falls within the RTA, and secondly, who the correct respondents (landlords) would be?

Is this a tenancy within the RTA?

The rental agreement is problematic in many ways and would not be of a standard expected between a professional landlord and tenant.
I consider the agreement was most likely drafted in a way intending to beguile the tenant into considering she was not protected by the RTA. I note here that the Tribunal has previously considered a number of applications from or for tenants, where the Tribunal has made finding that materially similar tenancy agreements used by the Burchells would represent tenancies under the RTA.
I note particularly an application that had been filed by the Chief Executive of the Ministry of Business, Innovation and Employment against Llewellyn Burchell (AKA John Burchell) 1 , where the Tribunal raised concerns about the content of that tenancy agreement, which again is materially similar to that used for [The tenant/s]. Concerningly, that decision was issued in 1 The Chief Executive Ministry of Business, Innovation and Employment v Llewellyn Burchell (AKA John Burchell) [2023] NZTT 4368540. January 2023, six months prior to this same agreement being used with [The tenant/s].
The tenancy agreement is drafted in a way to make it appear that this was not a tenancy falling within the RTA even going as far as saying the Tenancy Tribunal would not have jurisdiction to consider any dispute.
Statements of that nature in the agreement are not determinative because the RTA confirms that it applies, irrespective of what is written in the tenancy agreement. Section 11 of the RTA holds: 11 Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2) Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.
What this means, is that the minimum expectations set out in the RTA will apply, even where that is not consistent with the written tenancy agreement. The landlord can waive any of his protections, but the tenant cannot. For completeness, the Tenancy Tribunal could permit departures from the RTA in any specific agreement, but in the circumstances of this case, no such departure has been permitted. In short, irrespective of what the written agreement says, the RTA applies with its necessary requirements.
Accordingly, the terms that are used in the written agreement, such as ‘host’ for example, does not prevail over the reality of what the situation would be in the RTA. Using the ‘host’ term as an example, there is no such provision of the RTA referring to a party as a host, but what that person would be under the RTA, is the landlord.
Section 4 of the RTA confirms that the RTA “applies to every tenancy for residential purposes except as specifically provided.”
The term ‘tenancy’ is defined in the interpretation section as meaning a right to occupy the premises, whether exclusively or otherwise, in consideration for rent. In this case the tenant has a right to occupy her room, exclusively, which is rented to her. Rent is paid - it is a tenancy.
The term residential premises is also defined in the interpretation section, meaning any premises used or intended for occupation by any person as a place of residence, whether or not the occupation would be lawful. There could be no doubt that the premises rented to the tenant, were intended for occupation of the tenant as her residence.
Accordingly then, this tenancy does fall within the RTA (section 4). However, the RTA does allow for situations where the Act would be excluded. Those are set out in section 5.
Section 5 confirms that the RTA is excluded in certain cases, which would otherwise be residential tenancies. Some of those situations are quite obvious, for example where the premises are a prison, police jail, hospital, or institution for the care of aged persons.
Having considered the section 5 exclusions, I cannot see that any exclusions would apply in this case, and neither has the landlord established that the premises would be an excluded Tenancy. I note that the RTA confirms that if any party wishes to argue that the RTA does not apply, then it is that person who must prove it. Section 10 confirms: 10 Onus of proof Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
The Landlord has not proven this is an excluded tenancy.
I note for completeness, that while the landlord has not argued this is an excluded tenancy, the tenancy agreement claims this is a flatting situation, and if that were the case, it may be an excluded tenancy – however I find it is not.
The term ‘flatting’ is not defined in the RTA, but it is a concept that as well recognised in the New Zealand environment. It normally means that there is a communal arrangement of people living together. Invariably one of those people either owns the property, or holds a lease / tenancy agreement for it. The other people living in the premises (the flatmates) are living in the premises by way of a bare license, issued by the owner, or the person having lawful possession of the tenancy. This becomes an excluded tenancy under section 5(1)(n): 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:
This exclusion is not relevant in this case, because [The tenant/s] does not share the premises with any of the respondents. A room-by-room rental does not become an excluded tenancy as a flatting situation.
For those reasons, the Landlord has not established that the RTA does not apply. I am satisfied that the premises are a residential tenancy and fall within the RTA. Who are the correct respondents
I find the correct respondents are Joan Burchell, The Guest Home Limited and HG8 New Zealand Limited.
The evidence is that HG8 New Zealand Limited was the landlord, albeit an undisclosed principal. But in more recent times has been identified as the owner / landlord.
The landlord was, as I understand matters, acting through The Guest Home Limited, which is a company, and the Burchell’s as agents. The Companies Register records that Mr Llewellyn William Burchell is the sole director of the company, with two shareholders, Joan Roslyn Burchell, and Noreen Lettrisha Burchell.
The RTA includes a definition of landlord (unchanged since 1987) as follows: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective landlord; and (b) a former landlord; and (c) a lawful successor in title of a landlord to the premises; and (d) the personal representative of a deceased landlord; and (e) an agent of a landlord:
I have determined that Joan Burchell and The Guest Home Limited should be viewed as the landlord, either as a consequence of agency law, or because I consider this is a case where it would be appropriate to view them as landlords given the nature of the claimed breaches. Claim 1 – Refund of Bond
The undisputed evidence is that the tenant paid a bond of $1,820.00 to the landlord at the start of the tenancy, and that was not refunded when the tenancy ended. Analysis
The Tribunal must consider an application filed by the tenant at the end of the tenancy, seeking recovery of her bond.
Section 22B of the Residential Tenancies Act 1986 applies, that provision confirms that: (1) If there is a dispute between the parties as to the payment of a 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 with the Tribunal that sets out the landlord’s counterclaim.
The effect of this provision is that when the tenant applies to the Tribunal for release of the bond in whole or in part, if the landlord wishes to argue that it has any call on that bond, then the landlord “must” file a counterclaim for it. In the absence of a counterclaim, then the Tribunal must order that the bond be released to the tenants.
For the above reasons, in the absence of a counterclaim from the landlord, the Tribunal orders that the full bond be refunded to the tenants. Claim 2 – Exemplary damages for failing to lodge the bond
There is no evidence the bond has been lodged in the Bond Centre, the tenant seeks exemplary damages for that breach. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, for failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond following the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
I have considered the criteria set out in section 109 for the order of exemplary damages, and find that exemplary damages should be ordered. I consider the landlords decisions around bond lodgement are likely to have been intentional. There was a significant effect to the tenant, in that her bond is not kept securely, in fact even when the tenancy ended she has not been able to recover her bond money. There are very strong interests for tenants and landlords, and the public generally, that the bond system is strong. I consider it would be just to make this order.
The maximum level of exemplary damages that can be ordered for a breach of the landlords bond obligations is $1,500.00. In this case I consider an order of $1,000 would be indicated. I am aware that the Tribunal has made orders against the Burchells previously for failing to lodge bonds, such as the case I mentioned above (4368540), which was well prior to this tenancy commencing. The agents approach to ignore their legal requirements calls for a significant exemplary damages order. Claim 3 – Breach of quiet enjoyment.
The tenant seeks both exemplary damages and compensation for a breach of her quiet enjoyment.
The tenant refers to the unlawful notice she received from the landlord which included penalty fees, when the rent was in fact paid in advance. Further the tenant refers to the difficult situation where she was being jostled between two competing landlords, both demanding money from her, including the payment of another bond. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act. In order to get an order for exemplary damages, it must be in circumstances where the tenant is being harassed by the landlord.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined 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.
From these definitions, it seems that 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.
In this case I must conclude that what the tenant has described falls short of the above definition of harassment. While the actions of the landlords may have been unlawful, I do not consider those actions were deliberately made intending to upset her.
But I do consider the tenants quite enjoyment has been breached, particularly around the dispute between the two landlords as to who was the correct landlord, and who money should be paid to, and demanding a further bond, and second rent payment. While exemplary damages for that cannot be awarded, I am able to order general damages, and I consider this would be an appropriate case to do so. General damages are awarded when there has been a breach of some mental expectation of the contract, which could include distress and inconvenience.
Taking the relevant factors into consideration, an award of exemplary damages of $750 would be appropriate, and that is awarded. Claim 4 – Compensation for rent overpayment and key fee.
The tenant states she was paying her rent one week in advance. But before that was used up, the tenant needed to start paying Ms Fu rent payments also, and she felt she had no choice but to make that payment.
Also the tenant states that at the start of the tenancy, there was a $60 fee paid for the key, but no key was provided, because the premises had a digital lock, and that fee not returned. Analysis
Of course the tenant is only liable to pay one week of rent at a time; the tenant cannot be required to pay double rent for the same rent period. The rent over payment must be reimbursed.
Also there was no legal basis to charge the tenant for a key, not withstanding the fact, no key was provided, so that fee must also be refunded. Claim 5 – Filing fee
Because the applicant has been substantially successful in her application, I must award the filing paid to commence the proceeding in the Tribunal.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant applies for name suppression, which is ordered because she has been substantially successful.

Tenancy Tribunal case 4838229 — Exemplary damages at Unit/Flat 2, 32 Esmonde Road, Takapuna, Auckland 0622

At a glance

Tenancy Tribunal case 4838229 — Exemplary damages at Unit/Flat 2, 32 Esmonde Road, Takapuna, Auckland 0622

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Is this a tenancy within the RTA?

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Is this a tenancy within the RTA?

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions