What was Tenancy Tribunal case 4877902 about?

The tribunal order states: Samuel Moseti must pay [The tenant/s] $2,020.44 immediately.

How much money was awarded in case 4877902?

Property Damage: $1,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4877902?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4877902?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10407776-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4877902 about?

The tribunal order states: Samuel Moseti must pay [The tenant/s] $2,020.44 immediately.

How much money was awarded in case 4877902?

Property Damage: $1,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4877902?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4877902?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10407776-Tribunal_Order_Redacted.pdf.

19 Tonson Place, Weymouth, Auckland 2103 Tenancy Tribunal Case 4877902 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4877902 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: harassment	$1,000.00	harassment
Exemplary damages: unlawful entry	$1,000.00	unlawful entry
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 4877902 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: harassment	$1,000.00	harassment
Exemplary damages: unlawful entry	$1,000.00	unlawful entry
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Order

Samuel Moseti must pay [The tenant/s] $2,020.44 immediately. DescriptionTenant Exemplary damages: harassment$1,000.00 Exemplary damages: unlawful entry$1,000.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$2,020.44
The Tribunal issues a restraining order for a period ending on the earlier of the termination of the tenancy or 8 May 2025, restraining the landlord from breaching the quiet enjoyment of the tenant.
The landlord’s applications are dismissed.
This matter is determined as indicated by the orders above, but the parties are granted leave to bring any issues arising from the end of the tenancy back before me if they can be heard between 8 and 19 July 2024 and the matter will be re-opened. Anything unable to be heard in this window will need to be filed and scheduled in the ordinary way.

Reasons

Both parties attended the hearing.
The landlord seeks work orders and a direction that the tenant allow access for maintenance purposes.
The tenant seeks compensation/exemplary damages for unlawful entry onto premises and harassment.
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Background
The tenancy commenced on 15 July 2020. Initially the tenant resided at the premises with her husband, who was also named on the tenant agreement. Following the dissolution of their marriage in 2023, the tenant’s husband moved, and, by agreement, his name was removed from the tenancy agreement.
Prior to that change in the agreement, there do not appear to have been issues with the tenancy.
Following the amendment, and the tenant living at the address with her children, she alleges there has been a significant increase in contact from the landlord, and in his visits to the property under a variety of pretences, and also in the duration of those visits.
The tenant indicates there were almost 100 emails from the landlord in the period between her husband moving out and the application to the tribunal, together with text messages, phone calls and visits.
In terms of the duration of attendances being excessive, the tenant refers to a recent example of the landlord attending to fix a window latch and spending some 4 hours at the premises, with two follow up visits. The repairs to the latch are still not completed.
The landlord agrees that there is some maintenance work required at the premises but says that he has not been able to get access to attend to those matters.
The landlord denies that his contact with the tenant is excessive or inappropriate. Work orders
The landlord claims that the tenant hasn’t removed tyres and a vehicle from the property. The landlord wants the problem fixed.
Under section 40(1)(a)-(e), Residential Tenancies Act 1986, a tenant has specific obligations in relation to the tenancy premises.
Where the Tribunal finds the tenant has failed to comply with any of these obligations, where appropriate it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
A work order may also authorise the landlord to undertake the work and charge the tenant the costs of doing the work, if the tenant should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be treated as rent in arrears and enforced accordingly. See sections 78(2AAB) and 78(2AAC)(a) Residential Tenancies Act 1986.

Has the tenant failed to comply with their obligations?

The Act requires a tenant to keep premises reasonable clean and tidy and on the end of the tenancy to remove all rubbish and return the premise in a reasonably clean and tidy condition.
Having heard the evidence and seen the photographs provided, I do not accept that the tenant has breached these obligations. While there are tyres at the property, along with a damaged vehicle, these are stored in a manner that is consistent with the tenant’s obligations.
It is apparent that the landlord’s main concern is that these items belong to the tenant’s ex-husband. That is not disputed by the tenant, however she has an arrangement with him, where she agreed to store the items until he finds a suitable alternative storage place. Given my finding that the manner the tenant is storing the items is not in breach of her obligations, the actual ownership of the items and this arrangement are, frankly, not the landlord’s business.
The landlord’s application for work orders is dismissed. Access
Samuel Moseti claims the tenant has not allowed him entry to the premises when he was entitled to enter.
A landlord may enter the premises during the tenancy 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 without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A Residential Tenancies Act 1986.
The landlord has sought access to carry out a variety of maintenance tasks. The tenant doesn’t dispute that these are necessary, however, she wants the landlord or tradespeople to undertake work while her 14-year daughter is at school or when the tenant is home, as she is uncomfortable with her daughter being home alone when with men she doesn’t know come to the premises.
On another occasion, the tenant deferred access as she had Covid. She advised that landlord of that, and told he him could attend to work outside, but not come into the house while she was unwell. The landlord did not do any of the outside work.
On every occasion the landlord has proposed a date/time which doesn’t suit, the tenant has responded with a choice of other dates which do suit her, for the landlord to choose from. He does not take those options up.
I consider the tenant’s request that the landlord and/or trades people not attend when her daughter is home alone is entirely reasonable. Particularly as this allows access between 9am and 3:30pm Monday to Friday on the weeks the tenant’s daughter lives with her, and any reasonable time on the alternate weeks when the daughter is with her father.
I consider deferring access while the tenant had covid is also reasonable.
Further, the tenant’s actions – providing alternative dates/times – when the proposed access didn’t suit her, is all that is required. The landlord should have either chosen a time from her list or made further arrangements.
In the circumstances, I do not consider the tenant has breached her obligations.
The landlord’s applications are dismissed. Exemplary damages generally
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
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.
Section 109 of the RTA relates to exemplary damages, and confirms that 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. Unlawful 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.
The landlord’s contractor entered the premises on 7 May 2024 without notice and removed the shower. This occurred while the tenant’s daughter was home alone.
There was, originally, a scheduled visit on 7 May 2024 for the landlord to do an inspection, repair latches and undertake methamphetamine testing. However, the landlord deferred that to 10 May 2024, the tenant agreed to the deferral.
While the tenant agrees that the shower needs to be replaced, she did not get notice that it would be removed on 7 May 2024 at any point. She did not have time to prepare for the absence of the shower or make arrangements so her daughter was not home alone when the contactor arrived.
The landlord’s position is that he accidentally sent a message to the shower contractor instead of the handyman who was to replace the latches when arranging the 7 May 2024 visit. He then did not cancel that visit, as he was not aware that he had messaged the shower contractor. His explanation is that despite arranging the visit for repair of the latches, the shower contractor assumed it was to replace the shower (which had been discussed previously) and that is why the shower was removed.
With respect, I find this explanation entirely unplausible. There is a vast difference between repairing window latches and replacing a shower. I cannot imagine a scenario in which a message asking for window latches to be replaced could be interpreted as a request to replace a shower and followed without question or further discussion. Further, to take matters to their logical conclusion, if the landlord is correct and he cancelled the visit with the handyman (rather than the shower contractor) it is entirely illogical that the handyman didn’t query what was happening, given, on the landlord’s narrative the handyman would have been unaware of the planned visit.
I find the landlord as committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure to act was that the tenant was subject to an entry without notice, and during a time the landlord knew was unsuitable as her daughter was home alone. Further, she was subjected to the removal of the shower without notice and the inconvenience of that action.
I consider the landlord must have acted intentionally in failing to notify the tenant of this visit. I do not accept the landlord’s explanation for the failure to give notice and for the wrong contractor attending.
Further, I consider there is a clear public interest in landlords respecting their tenant’s privacy and only entering premises in accordance with the appropriate notice provisions.
I consider that an award of exemplary damages is appropriate in this case, and I award $1,000.00. Harassment
[The tenant/s] claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 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 section 38(3) and Schedule 1A 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.
The tenant alleges that the volume of emails, texts, calls and visits together with the duration of those visits amounts to harassment. The tenant accepts that the messages are not abusive or inappropriate in content, however the number of messages, and the duration of the landlord’s visits, which relate to relatively minor issues, amounts to a pattern of behaviour which is exhausting for her. Particularly as it arose following the break down of her marriage, when she was already in a heightened state.
In addition, there have been two methamphetamine tests conducted on the premises in the 6 months prior to the hearing, with a third scheduled for the 10 th of May 2024 (which I was told at the hearing had been cancelled). There is no evidence of methamphetamine testing earlier in the tenancy, or prior to the tenancy, and no indication that the landlord had a basis for concern about methamphetamine consumption. Both sets of testing returned negative results. The tenant has viewed the repeated testing as another pattern of behaviour designed to wear her down.
In addition to the evidence of the volume of messages, I note that on occasions where the landlord has sought consent to come to the premises for a particular reason, the tenant has sought his assurance that he will only be there for that one thing and that the duration of the visit will not be excessive. This is a clear indication of the tenant’s discomfort at the visits and their duration.
The landlord does not accept that his messages are excessive or that he has harassed the tenant. He does not accept the volume of messages alleged by the tenant, however, does not have evidence of the number he says is correct.
I accept the tenant’s evidence as to the number of emails, messages and calls she has had from the landlord. I have also reviewed a number of the emails. I accept that the emails are not rude or inappropriate in content. However, I also accept that there are a huge number of emails, particularly given the relatively minor nature of the repairs they relate too.
I also agree that the methamphetamine testing is excessive. There is no evidence to indicate a pre-tenancy test, no testing in the first 3.5 years of the tenancy, the 2 completed tests and a third planned in the 6 months prior to the hearing. I consider this is excessive. One test may have been justified following the tenant’s husband departing the premises, if there was a legitimate concern about drug use, then again following the termination of the tenancy. But repeated testing throughout such a short period goes too far, in my view.
Taken as a whole, I am satisfied that the landlord’s behaviour amounts to harassment, and I find he has committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s actions was a prolonged impact on the tenant’s quiet enjoyment of the premises. She was subjected to numerous emails, texts, calls and repeated visits from the landlord over relatively minor matters, and for the purposes of unnecessary methamphetamine testing.
I consider the landlord must have acted intentionally. It is not possible to send that volume of message unintentionally, and the repeated methamphetamine testing was clearly planned.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, particularly in allowing them the quiet enjoyment of premises they pay to occupy.
I consider that an award of exemplary damages is appropriate in this case, and I award $1,000.00. Restraining order
Having considered the evidence and having observed the interaction of the parties, I have concerns around the landlord’s interference with the tenant’s quiet enjoyment. To that extent that I have determined that a restraining order should be made as it relates to further breaches of the tenant’s quiet enjoyment.
Section 109A confirms that the Tribunal can on its own volition make an order restraining the commission of further unlawful acts on the part of a tenant or landlord. That provision states: 109A Tribunal may restrain further commissions of unlawful acts. (1) If the Tribunal makes an order against a person under section 109 on the ground that the person has committed an unlawful act, the Tribunal may, if satisfied that it is in the public interest to do so, make an order restraining the person from committing a further act of the same kind. (2) The Tribunal may make an order under subsection (1) on its own initiative or on the application of the applicant who applied for the order, under section 109, against the person sought to be restrained. (3) The Tribunal must specify the term of the order, which may not exceed 6 years. (4) Every person commits an offence who, being subject to an order under this section, intentionally contravenes the order. (5) A person who commits an offence against subsection (4) is liable on conviction to a fine not exceeding $3,600.
In the circumstances I have determined that a restraining order should be made. The order will expire on the earlier of the termination of the tenancy or 8 May 2025.
What this means, is that if over the next year there are further breaches of the quiet enjoyment of the tenant from the landlord, and specifically if the landlord emails, text messages, telephones or visits the tenant except for emergencies, to respond to requests for maintenance, or for inspections (no more regularly than 3 monthly, which is the minimum requirement of most insurers for rental properties), then the matter can be the subject of an application to the District Court in its criminal jurisdiction, and the maximum level of any fine would be $3,600.00. Filing fee
Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee Suppression
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
The tenant sought suppression of her name. As she has been successful in her claim she is entitled to suppression.
In the present case, the landlord was not wholly or substantially successful.
I have considered if I should grant a name suppression order for the landlord having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the landlord’s name and identifying details outweigh the interest of the open justice reporting principle.
In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the landlord and the public interest, the public interest outweighs the landlord’s interests.
Accordingly, no order is made for suppression of the landlord’s name and identifying details.

Tenancy Tribunal case 4877902 — Exemplary damages at 19 Tonson Place, Weymouth, Auckland 2103

At a glance

Tenancy Tribunal case 4877902 — Exemplary damages at 19 Tonson Place, Weymouth, Auckland 2103

At a glance

Award balance

Claims & awards

Order

Reasons

Has the tenant failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the tenant failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions