What was Tenancy Tribunal case 4861446 about?

The tribunal order states: Zac Hynd must pay [The tenant/s] $6,360.44 immediately, calculated as shown

How much money was awarded in case 4861446?

Compensation: $4,340.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4861446?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4861446?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10632170-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4861446 about?

The tribunal order states: Zac Hynd must pay [The tenant/s] $6,360.44 immediately, calculated as shown

How much money was awarded in case 4861446?

Compensation: $4,340.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4861446?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4861446?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10632170-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4861446 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4861446 — net $6,360.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$4,340.00	Compensation
Exemplary damages	$2,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,360.44
Total payable by Landlord to Tenant	$6,360.44

Order

Zac Hynd must pay [The tenant/s] $6,360.44 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing. Ms Ziolo and Mr Toa from Grenadier Rent Shop (Harcourts) represented the landlord.
The tenant applied for compensation and exemplary damages on the basis that the landlord terminated his tenancy when he did not have grounds to do so.
The tenant had a fixed term tenancy of the premises commencing on 11 November 2022. The parties agreed to renew the tenancy for a further year from 11 November 2023. Then, on 18 January 2024, the property manager for the tenancy, Ms Parsons, gave the tenant 63 days’ notice of termination of the tenancy stating that the landlord wished to move into the premises. The last day of the tenancy was stated to be 17 May 2024. The tenant was advised that if he wished to move out earlier, he would be required to give 28 days’ notice.
The tenant found a new tenancy and on 10 March 2024 he gave the landlord 28 days’ notice. He subsequently learned that the landlord could not end a fixed term tenancy by notice and, after unsuccessful attempts between the parties to settle the matter, he filed this application.
There is no dispute that the landlord issued the notice to end the tenancy in circumstances where they had no grounds to do so. The dispute appears to be over the amount of compensation that should be payable to the tenant. The landlord also disputes the claim for exemplary damages.

How much compensation should be payable to the tenant?

There is no doubt that the tenant and his family suffered considerable stress and inconvenience in unexpectedly having to find another suitable tenancy, particularly one that would take their dog. The rental market at the time was tight and the tenant said that they eventually had to take a tenancy that was of a lesser standard and was further from their son’s school which meant he could no longer walk to school but had to be driven. Once they secured the new tenancy the tenant gave the 28 days’ notice that he understood at the time that he was required to do to end this tenancy. This meant that he was paying rent for two tenancies for the 28-day period. He also had to find funds to pay another bond and two weeks rent in advance for the new tenancy and he incurred other costs to move.
Taking into account all the circumstances I consider compensation of $4,340.00 reasonable, being a refund of the rent paid for this tenancy while also paying rent for the new tenancy ($2,340.00), $300.00 for costs to shift, and $1,700.00 general damages for stress and inconvenience.

Should exemplary damages be payable?

Section 60AA and schedule 1A of the Residential Tenancies Act 1986 (the Act) provides that a landlord commits an unlawful act for which exemplary damages up to a maximum of $6,500.00 may be payable if the landlord gives a notice to terminate the tenancy knowing that they are not entitled to do so.
Ms Ziolo and Mr Toa said that Ms Parson’s did not know that the issuing of the notice was wrong until the tenant queried the legitimacy of it on 15 March. They therefore claim that when she gave the notice, she did not do so knowing that she was not entitled to.
Ms Parson’s did not attend the hearing but she gave a signed (undated) written statement in which she states: “I am reaching out to address an oversight regarding the notice provided to tenants on a fixed-term tenancy. I want to express that this mistake was not deliberate; rather, I operated with the genuine intention of acting in the best interest of all parties involved. In fact, I extended additional time to the tenants and made efforts to assist them in finding an alternative property within my portfolio.”
I do not consider that this statement establishes that Ms Parsons did not know that she could not give notice to end the fixed term tenancy. She simply states that she made an error when she gave the notice and did so with the intention of acting in the best interests of all the parties involved. I therefore find that on the evidence before me that it is more likely than not that Ms Parsons was aware that the tenancy was a fixed term tenancy and knew that a fixed term tenancy could not be ended by notice during the term.
The landlord has therefore breached section 60AA of the Act and I am required to consider whether exemplary damages ought to be payable and, if so, how much.
Exemplary damages are different to compensatory damages. They are designed to punish and to deter. They are like a fine and 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 proved, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Act. These are: (a) The intention of the person (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.
The threshold requirement is that the unlawful act was committed ‘intentionally’. The focus here is not whether the person intended to commit the unlawful act (so not whether they intended to do wrong). Rather the focus is whether they intentionally did or failed to do the particular act that constitutes the unlawful act (here issuing a termination notice knowing that they are not entitled to do so).
Ms Parsons claims, in her statement that she made an “oversight” or “mistake” which was not “deliberate” but she does not say what that mistake or oversight was other than it was regarding the issuing of the notice.
I find, on the evidence before me, that the threshold element of ‘intention’ to commit the unlawful act has been satisfied here. The issuing of the notice was a deliberate act and I have found that it is more likely than not that Ms Parson’s knew that the tenancy was a fixed term tenancy and knew that a fixed term tenancy could not be ended, during the term, by notice.
Taking into account the factors in section 109 of the Act (as listed above) I order the landlord to pay to the tenant exemplary damages of $2,000.00. In assessing the amount payable I have taken into account Ms Parson’s expressed intention (in her statement) that she when she issued the notice she did so with the intention of acting in the best interests of all parties involved. While this might have been in the landlord’s best interests she was clearly not acting in the tenant’s best interests. I have also taken into account the considerable effect on the tenant of the breach (as outlined above) and the public interest in ensuring that landlords comply with their obligations under the Act.
The tenant has been successful in his claims, and he is therefore entitled to payment of the Tribunal application fee. Liability of the landlord for the actions of the agent (property management company)
It is clear from the tenancy agreement that Harcourts were acting as an agent for the landlord, Mr Hynd.
The general law of agency provides that an agent, when acting within the authority given to it by the principal (Mr Hynd), is not personally liable under the contract; liability rests solely with the principal. Section 2(1) of the Act modifies the general law of agency in the context of residential tenancies by providing an extended definition of ‘landlord’ for the purposes of the Act. It provides that “where appropriate” a landlord may include the agent of a landlord. However, in my view it is not appropriate to include an agent of a landlord as a landlord for the purposes of liability under the Act. Liability, whether under the Act or otherwise, as an agent requires a consideration of the law of agency, and it would only be appropriate for an agent to come within the definition of landlord (and therefore be liable under the Act as landlord) where the agent is liable under the general law of agency.
There is no evidence to support that Harcourts were acting outside the authority given to it by Mr Hynd when it issued the notice to terminate the tenancy. I therefore find, under the general law of agency, that Harcourts are not personally liable for the breach of section 60AA of the Act. Mr Hynd is liable for the actions of his agent while they were acting within the authority given by him. Payment of the Tribunal application fee
The tenant has been successful in his claims, and he is therefore entitled to payment of the Tribunal application fee.

Should a suppression order be made?

The tenant applied, in his application, for a suppression order.
Section 95A of the Act provides that the Tribunal must, on the application of a party who has been wholly or substantially successful in the proceedings, order that the party’s name or identifying particulars not be published (unless the limited circumstances set out in the section apply).
The tenant has been wholly successful in his claims and the limited exceptions set out in s 95A do not apply. I therefore make an order that the tenant’s name and identifying details be suppressed.

Claims and awards in Tenancy Tribunal application 4861446 — net $6,360.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$4,340.00	Compensation
Exemplary damages	$2,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,360.44
Total payable by Landlord to Tenant	$6,360.44

Order

Zac Hynd must pay [The tenant/s] $6,360.44 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing. Ms Ziolo and Mr Toa from Grenadier Rent Shop (Harcourts) represented the landlord.
The tenant applied for compensation and exemplary damages on the basis that the landlord terminated his tenancy when he did not have grounds to do so.
The tenant had a fixed term tenancy of the premises commencing on 11 November 2022. The parties agreed to renew the tenancy for a further year from 11 November 2023. Then, on 18 January 2024, the property manager for the tenancy, Ms Parsons, gave the tenant 63 days’ notice of termination of the tenancy stating that the landlord wished to move into the premises. The last day of the tenancy was stated to be 17 May 2024. The tenant was advised that if he wished to move out earlier, he would be required to give 28 days’ notice.
The tenant found a new tenancy and on 10 March 2024 he gave the landlord 28 days’ notice. He subsequently learned that the landlord could not end a fixed term tenancy by notice and, after unsuccessful attempts between the parties to settle the matter, he filed this application.
There is no dispute that the landlord issued the notice to end the tenancy in circumstances where they had no grounds to do so. The dispute appears to be over the amount of compensation that should be payable to the tenant. The landlord also disputes the claim for exemplary damages.

How much compensation should be payable to the tenant?

There is no doubt that the tenant and his family suffered considerable stress and inconvenience in unexpectedly having to find another suitable tenancy, particularly one that would take their dog. The rental market at the time was tight and the tenant said that they eventually had to take a tenancy that was of a lesser standard and was further from their son’s school which meant he could no longer walk to school but had to be driven. Once they secured the new tenancy the tenant gave the 28 days’ notice that he understood at the time that he was required to do to end this tenancy. This meant that he was paying rent for two tenancies for the 28-day period. He also had to find funds to pay another bond and two weeks rent in advance for the new tenancy and he incurred other costs to move.
Taking into account all the circumstances I consider compensation of $4,340.00 reasonable, being a refund of the rent paid for this tenancy while also paying rent for the new tenancy ($2,340.00), $300.00 for costs to shift, and $1,700.00 general damages for stress and inconvenience.

Should exemplary damages be payable?

Section 60AA and schedule 1A of the Residential Tenancies Act 1986 (the Act) provides that a landlord commits an unlawful act for which exemplary damages up to a maximum of $6,500.00 may be payable if the landlord gives a notice to terminate the tenancy knowing that they are not entitled to do so.
Ms Ziolo and Mr Toa said that Ms Parson’s did not know that the issuing of the notice was wrong until the tenant queried the legitimacy of it on 15 March. They therefore claim that when she gave the notice, she did not do so knowing that she was not entitled to.
Ms Parson’s did not attend the hearing but she gave a signed (undated) written statement in which she states: “I am reaching out to address an oversight regarding the notice provided to tenants on a fixed-term tenancy. I want to express that this mistake was not deliberate; rather, I operated with the genuine intention of acting in the best interest of all parties involved. In fact, I extended additional time to the tenants and made efforts to assist them in finding an alternative property within my portfolio.”
I do not consider that this statement establishes that Ms Parsons did not know that she could not give notice to end the fixed term tenancy. She simply states that she made an error when she gave the notice and did so with the intention of acting in the best interests of all the parties involved. I therefore find that on the evidence before me that it is more likely than not that Ms Parsons was aware that the tenancy was a fixed term tenancy and knew that a fixed term tenancy could not be ended by notice during the term.
The landlord has therefore breached section 60AA of the Act and I am required to consider whether exemplary damages ought to be payable and, if so, how much.
Exemplary damages are different to compensatory damages. They are designed to punish and to deter. They are like a fine and 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 proved, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Act. These are: (a) The intention of the person (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.
The threshold requirement is that the unlawful act was committed ‘intentionally’. The focus here is not whether the person intended to commit the unlawful act (so not whether they intended to do wrong). Rather the focus is whether they intentionally did or failed to do the particular act that constitutes the unlawful act (here issuing a termination notice knowing that they are not entitled to do so).
Ms Parsons claims, in her statement that she made an “oversight” or “mistake” which was not “deliberate” but she does not say what that mistake or oversight was other than it was regarding the issuing of the notice.
I find, on the evidence before me, that the threshold element of ‘intention’ to commit the unlawful act has been satisfied here. The issuing of the notice was a deliberate act and I have found that it is more likely than not that Ms Parson’s knew that the tenancy was a fixed term tenancy and knew that a fixed term tenancy could not be ended, during the term, by notice.
Taking into account the factors in section 109 of the Act (as listed above) I order the landlord to pay to the tenant exemplary damages of $2,000.00. In assessing the amount payable I have taken into account Ms Parson’s expressed intention (in her statement) that she when she issued the notice she did so with the intention of acting in the best interests of all parties involved. While this might have been in the landlord’s best interests she was clearly not acting in the tenant’s best interests. I have also taken into account the considerable effect on the tenant of the breach (as outlined above) and the public interest in ensuring that landlords comply with their obligations under the Act.
The tenant has been successful in his claims, and he is therefore entitled to payment of the Tribunal application fee. Liability of the landlord for the actions of the agent (property management company)
It is clear from the tenancy agreement that Harcourts were acting as an agent for the landlord, Mr Hynd.
The general law of agency provides that an agent, when acting within the authority given to it by the principal (Mr Hynd), is not personally liable under the contract; liability rests solely with the principal. Section 2(1) of the Act modifies the general law of agency in the context of residential tenancies by providing an extended definition of ‘landlord’ for the purposes of the Act. It provides that “where appropriate” a landlord may include the agent of a landlord. However, in my view it is not appropriate to include an agent of a landlord as a landlord for the purposes of liability under the Act. Liability, whether under the Act or otherwise, as an agent requires a consideration of the law of agency, and it would only be appropriate for an agent to come within the definition of landlord (and therefore be liable under the Act as landlord) where the agent is liable under the general law of agency.
There is no evidence to support that Harcourts were acting outside the authority given to it by Mr Hynd when it issued the notice to terminate the tenancy. I therefore find, under the general law of agency, that Harcourts are not personally liable for the breach of section 60AA of the Act. Mr Hynd is liable for the actions of his agent while they were acting within the authority given by him. Payment of the Tribunal application fee
The tenant has been successful in his claims, and he is therefore entitled to payment of the Tribunal application fee.

Should a suppression order be made?

The tenant applied, in his application, for a suppression order.
Section 95A of the Act provides that the Tribunal must, on the application of a party who has been wholly or substantially successful in the proceedings, order that the party’s name or identifying particulars not be published (unless the limited circumstances set out in the section apply).
The tenant has been wholly successful in his claims and the limited exceptions set out in s 95A do not apply. I therefore make an order that the tenant’s name and identifying details be suppressed.

Tenancy Tribunal case 4861446 — Exemplary damages

At a glance

Tenancy Tribunal case 4861446 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

How much compensation should be payable to the tenant?

Should exemplary damages be payable?

Should a suppression order be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much compensation should be payable to the tenant?

Should exemplary damages be payable?

Should a suppression order be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions