What was Tenancy Tribunal case 4854667 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4854667?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4854667?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4854667?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10360136-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4854667 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4854667?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4854667?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4854667?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10360136-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4854667 — Exemplary damages

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The applicant sought exemplary damages for landlord unlawful actions per sections 45 and 48 Residential Tenancies Act 1986 (“RTA”).
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
For the benefit of the applicant, 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 [my bold]: “...[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.”
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
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. Background
This was a long tenancy that commenced on 6 April 2017. Given the longevity of the tenancy, I highlighted to the applicant the implications of the Limitations Act 2010. Under the Limitation Act 2010, the limitation period for money claims is six years from the date of the event or omission that the claim is based on. This had some application on the early claims of the tenant.
In addition to the claims for exemplary damages, an issue arose late in the tenancy regarding water consumption and accounting for the use of some of it by the landlord. At the hearing the landlord advised that the final water bill was being absorbed in total by them and no orders were necessary. Tenant claims Failure to maintain
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.
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
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.
During this long tenancy there were a number of maintenance tasks required. Possibly the most significant was a reroofing in 2018. The inconvenience at that time was compensated via a rent reduction and cash payment.
Other tasks were completed but none of those appear of particular significance at the time and might be reasonably expected. The claim regarding the toilet seat is not proven.
The challenge for the tenant in this application is meeting the evidential threshold to support the claims she made.
Having reviewed the evidence, and in particular the record of communication, I do not consider it proven the landlord has breached s 45. The claim is dismissed. Landlord entry
[The tenant/s] claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
Again, the record of communication records frequent interaction between the landlord and tenant. It is clear that on a number of occasions the landlord relied on permission granted by the tenant at short notice rather than any statutory notice period. I do not find the landlord ever entered the premises without permission when so required.
The tenant articulated at the hearing how such actions caused her considerable distress. I can accept this but must also consider such distress was not visible to the landlord at the times, nor communicated clearly afterwards.
I do consider the landlord would have been better to use the statutory notice periods rather than rely on the tenant’s consent. However, considering the duration and operation of the tenancy until the end when things soured, I do not find grounds for any orders pertaining to landlord entry. The claim is dismissed. Conclusion
The tenant submitted “there have been lots of small infractions of my rights as a tenant”. Many of these have been raised retrospectively. Other claims lack evidential support.
This tenancy operated informally for a long duration without any formal issues raised until near the end. The decision of the landlord to sell the property would have been concerning to the tenant.
The tenant expressed a desire to be heard and this process has given her that opportunity. She recounted at the hearing, and in her written submission, some difficulties that made her particularly vulnerable to the claimed landlord actions. This is unfortunate but, on the evidence, presented any such difficulties were either managed at the time, or not clearly raised with the landlord.
While the claims were for exemplary damages, consideration of compensation is available even if no unlawful act is determined. I do not consider any compensation, beyond that provided by the landlord to date (including the absorption of the large final water bill), is appropriate.
As indicated at the hearing, the challenge is with the applicant to prove their claims. This challenge has not been met in this application. 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 tenant requested suppression in its application. The landlord requested the same at the hearing.
Given the lack of success, suppression by right is not available to the tenant however given the background to this tenancy and application I consider it appropriate to exercise my own initiative and suppress all names in this order. There is minimal public interest in the circumstances leading to this application.

Tenancy Tribunal case 4854667 — Exemplary damages

At a glance

Tenancy Tribunal case 4854667 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions