What was Tenancy Tribunal case 4858601 about?

The tribunal order states: No orders are made.

How much money was awarded in case 4858601?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4858601?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4858601?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10737486-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4858601 about?

The tribunal order states: No orders are made.

How much money was awarded in case 4858601?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4858601?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4858601?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10737486-Tenancy_Tribunal_Order.pdf.

173 Princes Drive, Britannia Heights, Nelson 7010 Tenancy Tribunal Case 4858601 — Harassment

Order

No orders are made.

Reasons

Both parties attended the hearing. The tenant was joined by Simon Merry, her partner.
The applications were both lodged on the same day, 11 April 2024.
The tenant application at that time sought exemplary damages for failure to maintain, unlawful entry, and interference with quiet enjoyment.
The landlord sought orders regarding access.
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.”
This case turns on its facts. Some of the material facts are in dispute. Therefore, I must decide the facts. It is impracticable for me to recite all the evidence in detail and I will not do so unless it is necessary, but the parties should know it has been considered.
When considering claims, the Tribunal must also 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. Background
This was a long tenancy that commenced 23 July 2019. It ended 7 May 2024.
The parties were introduced by a mutual friend. For a period of time the tenancy was under professional property management that ended on or around 28 November 2023.
The tenancy ended via tenant notice to terminate. The timing of this caused the landlord some anxiety given her pending overseas trip. It had been her desire to re-sign a further fixed term tenancy.
The landlord was incentivised to move quickly to arrange a new tenancy. There was also increased contractor activities at the premises near the end of the tenancy. These placed extra demands on the tenant for no long-term benefit to her. 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.
Over the course of the long tenancy there were a number of maintenance issues that the tenant believes were not adequately resolved, or not in timely manner if resolved.
During the amicable phase of the tenancy the tenants proactively attended some minor repairs completed in what appears to be a cooperative approach with the landlord, who conducted infrequent inspections.
Having reviewed the cited instances of the landlord’s failure to maintain over this long tenancy, I do not find that any order for exemplary damages under section 45 RTA should be made. Quiet enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s 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 s 38(3) and Schedule 1A RTA).
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 s 109(3) 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 consider the landlord had her own urgency and this led to extra demands on the tenant. The tenant experienced impact on quiet enjoyment but, when viewed overall, some of these impacts could have been mitigated by her own actions.
I find no grounds established that the landlord harassed the tenant and that an order for exemplary damages under s 38 RTA should be made. Unlawful entry
Section 48 RTA details how the landlord may enter the premises during the currency of the tenancy agreement (“Landlord’s right of entry”).
This section is prescriptive on the different ways the landlord may enter the premises. As a section, it makes provision for either party to be found liable for an unlawful act. Two relevant subsections below: (4) The following are each hereby declared to be unlawful acts: (a) entry upon the premises by the landlord other than as permitted by or under any of subsections (1) to (3): (b) failure by the tenant, without reasonable excuse, to allow the landlord to enter upon the premises in any circumstances in which the landlord is entitled to enter under subsections (2) to (3):
The most contentious interaction regarding entry involved the landlord and Simon Merry on 10 April 2024. It is no coincidence both applications were lodged the next day. Simon gave a detailed written account of his recollection that day. Judy responded at the hearing.
Having considered their submissions further, I am concerned Simon did not have any reasonable excuse to prevent the landlord entering that day after adequate notice had been served. The concerns of the tenant regarding privacy if photos were taken could have been easily managed in a cooperative manner.
Claims of unlawful entry at other times were also raised but I find none of those would merit any order as the supporting evidence is inconclusive. Orders
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.
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party
The bond was returned in full to the tenant. She recounted in a written submission, “She then signed my bond stating that she was only signing it to get rid of me. I took the form, said nothing and handed her the keys.” I have considered that return of the bond as part of the overall deliberation.
I make no orders for exemplary damages. To make such orders I must be satisfied of the intention of the party committing the unlawful act to do so. I do not find any such intention established here. That applies to both applicants.
Both parties have behaved or failed, at times, in such a way that some consideration of compensation could be made. Essentially, after considering the overall merits and justice of both applications, any such orders would cancel each other out. The alternative approach is to make no orders. That is the path I have adopted.
The tenant expressed a desire through this process to change the landlord’s behaviours. While no orders have followed, I consider such a desire will have met with some satisfaction. Both parties could do better. Filing Fee
Each party is to carry their own cost of filing. 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 landlord requested suppression in her application. As she has not been wholly or substantially successful overall, suppression is declined. Delay in this order
This order has been delayed for a number of reasons (that sit with me). That is regretted and the patience of the parties is appreciated.

Tenancy Tribunal case 4858601 — Harassment at 173 Princes Drive, Britannia Heights, Nelson 7010

At a glance

Tenancy Tribunal case 4858601 — Harassment at 173 Princes Drive, Britannia Heights, Nelson 7010

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