What was Tenancy Tribunal case 4852726 about?

The tribunal order states: Shanmugan Edward must pay [The tenant/s] $2,020.44 immediately, calculated

How much money was awarded in case 4852726?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4852726?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4852726?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10674232-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4852726 about?

The tribunal order states: Shanmugan Edward must pay [The tenant/s] $2,020.44 immediately, calculated

How much money was awarded in case 4852726?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4852726?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4852726?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10674232-Tribunal_Order_Redacted.pdf.

8B Beauchamp Street, Tawa, Wellington 5028 Tenancy Tribunal Case 4852726 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4852726 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Terminating tenancy without grounds	$2,000.00	Terminating tenancy without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Claims and awards in Tenancy Tribunal application 4852726 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Terminating tenancy without grounds	$2,000.00	Terminating tenancy without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Order

Shanmugan Edward must pay [The tenant/s] $2,020.44 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing.
The tenant claims that the landlord has breached their obligations under section 60AA Residential Tenancies Act 1986 (RTA) by giving notice to terminate the tenancy under section 51(1)(a) RTA, knowing he was not entitled to do so. She seeks compensation and exemplary damages for the breach.
Under s51(1)(a) the landlord may terminate a periodic tenancy by giving at least 63 days’ notice if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.
Under s60AA 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 this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See s60AA and Schedule 1A RTA.
This was a tenancy that began on 2 September 2016, as a fixed term tenancy and later became a periodic tenancy. The tenancy ended on 26 December 2023. The tenancy was managed by a property manager, Oxygen, but their agency ended after termination. Therefore, the owner, Mr Edward, attended the hearing.
The relevant timeline of events follows: 20 November 2023—Mr Edward emailed Oxygen informing him that his work contract in Auckland was to end on 31 December 2023. Due to this and some health concerns he intended to relocate to Wellington and requested that Oxygen give the tenant notice to terminate this tenancy as he intended to live at the premises; 20 November 2023—Oxygen sent the tenant a notice giving the tenant 63 days’ notice to vacate the property by 21 January 2024 because the owner would be moving back into the property. The notice advised the tenant that she could give 28 days’ notice to end the tenancy prior to the end of the 63-day notice period; 23 November 2023—Mr Edward received an offer extending his work contract in Auckland until 30 June 2024, which he accepted by signing the contract on 23 November 2023. The contract provided that either party could terminate the contract early by providing twenty days’ written notice; 28 November 2023—The tenant gave Oxygen 28 days’ notice to end the tenancy sooner on 26 December 2023; 2 December 2023—The tenant moved out of the premises, paying rent until the termination date of 26 December 2023; 15 March 2024—The tenant saw the premises advertised for rent on Trade Me through Harcourts as agents for the owner; 18 March 2024—The Trade Me advertisement was removed; 19 March 2024—The tenant’s daughter contacted Harcourts to ascertain whether the premises had been let. She was informed by the agent that the premises were taken off the Trade Me site because some maintenance work was required but it should be re-listed in a month; April 2024—The premises were rented out to a third party. Mr Edward has not returned to live at the premises.
The tenant explained that receiving notice of termination was a shock. She was in hospital when it was served. Therefore, the timing was not ideal. She had to rely on her daughters to pack her belongings and vacate the premises, giving earlier notice to move out. She is still living with one of her daughters as she has been unable to find a suitable rental that she can afford. She is retired and receiving Government Superannuation.
The tenant’s daughter saw the premises advertised for rent on Trade Me as she was looking for properties that the tenant might rent. The tenant says her daughter shared a screenshot of the listing on Facebook and several people commented on it. It seems that this attracted some negative comments about the landlord listing the premises, given his reason for terminating the tenancy. The tenant says Tawa is a small place and she surmises that the negative comments were relayed to Harcourts and may have prompted their removing the listing on Trade Me.
Mr Edward explained that when notice was given to terminate the tenancy, he had every intention of returning to Wellington to live in the premises. His work contract was due to end on 31 December 2023 and this fact, combined with some health issues he was facing, prompted his decision to relocate nearer family.
Mr Edward said that when he signed the agreement to extend his work contract in Auckland on 23 November 2023 (only 3 days after service of the termination notice) he was still unsure as to whether he would complete the contract to the end of the extension period of 30 June 2024. He notes that he had the right to terminate this contract on 20 days’ written notice. However, he acknowledged at the hearing that he thought he would stay for another 2-3 months in Auckland. The offer of increased pay was attractive to him.
In the end, Mr Edward remained in Auckland, and did not use the premises as his principal place of residence. He also did not rent the premises to anyone else. However, in March 2024, he decided that he was losing money on the property and that he should re-let it. He thought that he was entitled to do this because his circumstances and intentions had changed since serving the termination notice.
When asked why he did not advise the tenant immediately after signing his contract extension on 23 November 2023 that he might not be returning to Wellington, and why he did not consider withdrawing the termination notice, he was unable to provide a satisfactory answer. He simply asserted that he wasn’t sure he would work to the end of his contract extension. Once, the tenant gave notice to terminate on 28 November 2023, he says that he did not think he could undo the notices that had been served by each party. He also did not discuss the situation with the property managers acting for him at the time nor seek any advice.
Essentially, the landlord decided to remain in Auckland. By 15 March 2024, he had decided that he would not be returning and would relet the premises. Given that he instructed new property managers and that the premises were advertised for rent on Trade Me on 15 March 2024, it is likely that he made this decision well prior to that date.
The ground for termination relied on by the landlord under s51(1)(a) required an intention that he would occupy the premises within 90 days of the termination date (given as 21 January 2024 in the notice) and for a minimum period of 90 days. However, the premises were advertised for re-letting within 53 days of the termination date in the termination notice, and within 80 days of the actual termination date notified by the tenant. Clearly, the landlord did not occupy the premises within 90 days of the termination date nominated in his termination notice. Despite insisting that he had not made a definite decision about whether to work to the end of his contract extension, I am satisfied that it was a very high possibility that he would do so given that he signed the work contract.
Where the landlord’s intention to live at the premises, when a termination notice is served, changes (or there is a high likelihood it will change) before the tenant has vacated, I consider the landlord is under an obligation to inform the tenant that the grounds for terminating the tenancy may/no longer apply before the tenant vacates. The RTA does not expressly require the landlord to notify the tenant of a change, but the landlord may terminate the tenancy only if the ground exists. If the ground no longer exists or the landlord is uncertain about his intentions, I consider it is not legitimate for the landlord to continue to rely on the notice. In this case, the landlord continued to rely on the notice, but the ground he relied upon was never activated. I consider it was not open to the landlord to give a notice or to continue to rely on a notice in circumstances where he was unsure if he would use the premises as his principal place of residence. If he becomes uncertain or changes his mind, then I find he has an obligation to inform the tenant. Mr Edward could have done this before the tenant served her own notice to terminate which was only precipitated by the landlord’s notice. Otherwise, it was clear from her evidence that she wished to remain in the tenancy.
It follows that I find that the landlord has given a termination notice knowing they are not entitled to do so which is a breach of s60AA and an unlawful act, for which the tenant seeks compensation and exemplary damages.
While the tenant was undoubtedly inconvenienced by having to vacate the premises, she did not present evidence of actual loss suffered, such as moving costs or having to pay higher rent or similar. Therefore, I have not awarded compensation and consider exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act; b. The effect of the unlawful act; c. The interests of the landlord or tenant against whom the unlawful act was committed; d. The public interest; and e. Whether it is just to make the award.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do (Parton v Fifita TT 1815/00, DC Auckland,1/5/2001).
The District Court has generally rejected landlords pleading confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, where the landlord claimed not to be fully aware of his obligations, the District Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
I am satisfied that the matter of intention in terms of s109 has been established The landlord’s claim that he did not know about his obligations does not excuse or mitigate the failure. He ought to have obtained advice or information about his obligations regarding termination from his property manager or sought advice.
Parliament has provided for a high level of exemplary damages (up to $6,500) for an invalid termination notice because such a notice strikes at the heart of the tenant’s right to security of tenure. It can also be looked at as a serious interference with the tenant’s quiet enjoyment of the premises. Such action by landlords must be discouraged. It is very much against the tenant’s and the public interest. No doubt the landlord’s termination notice caused the tenant significant inconvenience and stress. An exemplary damages award must also act as a warning and discouragement to other landlords. There is no evidence that the landlord was motivated by any ill feeling or has previously committed a similar breach. Therefore, I consider an award at the lower end of the scale is justified and I order exemplary damages of $2,000. Because the tenant has wholly succeeded with her claim, she is entitled to reimbursement of the filing fee and suppression of her name and identifying details.

Tenancy Tribunal case 4852726 — Exemplary damages at 8B Beauchamp Street, Tawa, Wellington 5028

At a glance

Tenancy Tribunal case 4852726 — Exemplary damages at 8B Beauchamp Street, Tawa, Wellington 5028

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions