What was Tenancy Tribunal case 4883048 about?

The tribunal order states: Alex Sim and Al Burchell must pay [The tenant/s] $1,840.44 immediately,

How much money was awarded in case 4883048?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4883048?

The dispute type was not classified.

Where can I read the official tribunal order for case 4883048?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10930164-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4883048 about?

The tribunal order states: Alex Sim and Al Burchell must pay [The tenant/s] $1,840.44 immediately,

How much money was awarded in case 4883048?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4883048?

The dispute type was not classified.

Where can I read the official tribunal order for case 4883048?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10930164-Tribunal_Order_Redacted.pdf.

Room 4, 79 Redvers Drive, Belmont, Lower Hutt 5010 Tenancy Tribunal Case 4883048 — Tenancy dispute

Order

Alex Sim and Al Burchell must pay [The tenant/s] $1,840.44 immediately, calculated as shown in table below. DescriptionTenant Bond$1,820.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$1,840.44

Reasons

The Tribunal has received an application from a tenant, seeking a refund of his bond.

BACKGROUND

The background can be summarised reasonably succinctly as follows.
Mr Burchell entered into an agreement with Mr Sim to rent Mr Sim’s house to tenants. Mr Sim has provided a document entitled “Sole Mandate / Legal Consent” which was an agreement to find “Guests / Tenants for Owner’s homes”.
One of the tenants that Mr Burchell found, was [The tenant/s]. A rental agreement has been provided for “The Guest Home”, which I accept is the trading name for Mr Burchell’s business, with [The tenant/s] as tenant, for a tenancy to commence in October 2023. The rental that [The tenant/s] was required to pay for his single room was $455 per week, with two weeks of rent to be paid in advance, and a bond of $1,820.00 to be paid – that is four weeks of rent.
[The tenant/s] has provided evidence from the Ministry of Social Development (WINZ) confirming that they approved a payment of $1,820.00 to the Burchells under the category of “HSP Bond Grant”. I accept that payment is likely to have been made, and was for the agreed bond.
There is no evidence that the bond was lodged with the Bond Centre.
The tenancy has ended, and [The tenant/s] bond was not refunded. [The tenant/s] has filed an application in the tenancy Tribunal, against Mr Burchell, and also the property owner that is Mr Sim.

POSITION OF THE PARTIES

[The tenant/s] advised that he seeks to have his bond refunded from either Mr Sim or Mr Burchell.
[The tenant/s] explained to me that he needed somewhere to stay, and found this house. [The tenant/s] applied to WINZ for a bond for the tenancy which was paid. [The tenant/s] wants to get his bond refunded.
In response, Mr Sim confirmed that the Burchell’s were engaged by him, and had the responsibility for letting out the rooms, and [The tenant/s] was one of the tenants. Mr Burchell was the person who was responsible for placing the tenants and collecting the bond.
Mr Sim advised that he had a range of difficulties with Mr Burchell, who would summarily evict tenants and keep the bond for himself. Mr Burchell did not lodge any bonds with the Bond Centre, but would keep the bond in a separate account. Mr Burchell would also fail to make payments to the owner.
Mr Sim confirmed that the room was returned clean and tidy, and there is no reason the bond should not be refunded, he supports that it should be refunded, but that Mr Burchell should be ordered to make the payment.

PROCEDURAL NOTE

The hearing was convened in the [Event location suppressed] on 9 October 2024. [The tenant/s] was in attendance with his sister and support. Mr Sim attended the hearing by telephone.
There was no appearance by Mr Burchell. I note that the Tribunal’s records indicate that Mr Burchell would not engage with the Tribunal, and I also note that the registrar wrote to Mr Burchell on 20 September 2024 by post, reminding him that the hearing was at 9:30 on 9 October, and to “please answer your phone”. This morning I telephoned Mr Burchell on two occasions, neither call was answered. I am satisfied that Mr Burchell has been notified of the hearing, so I will proceed to adjudicate the matter in his absence.

ANALYSIS

I will now consider the claim of [The tenant/s].

Can the bond refund be ordered?

The Tribunal must consider an application filed by the tenant at the end of the tenancy, seeking recovery of his bond.
Section 22B of the Residential Tenancies Act 1986 applies, that provision confirms that: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The effect of this provision is that when the tenant applies to the Tribunal for release of the bond in whole or in part, if the landlord wishes to argue that it has any call on that bond, then the landlord “must” file a counterclaim for it. In the absence of a counterclaim, then the Tribunal must order that the bond be released to the tenants.
For the above reasons, in the absence of a counterclaim from the landlord, the Tribunal orders that the full bond be refunded to the tenants. I note in fairness, Mr Sim confirmed there is no reason the bond should not be returned to [The tenant/s].

Who should the order be made against?

As above, I have determined that the bond paid by [The tenant/s], being $1,820.00, should be refunded to the tenant. The question then becomes, whether Mr Sim or Mr Burchell is liable to pay that money, or both of them? But as I explained at the hearing, the answer is that both are liable to pay the bond to [The tenant/s], for these reasons.
The starting point is to recognise that the bond from [The tenant/s] was paid to the landlord, and it is the landlord who carries the obligations under the Residential Tenancies Act 1986 (RTA) to lodge that bond with the bond centre. Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
The question then becomes, who is the landlord? The answer is both Mr Sim, and Mr Burchell.
Section 2 of the RTA is the interpretation section, and provides a definition of the term ‘Landlord’ as follows: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective landlord; and (b) a former landlord; and (c) a lawful successor in title of a landlord to the premises; and (d) the personal representative of a deceased landlord; and (e) an agent of a landlord
When I consider the rental agreement that was entered into between Mr Burchell, and [The tenant/s], I interpret that to be a residential tenancy agreement, with an agent of the landlord. It is very common in the Tenancy jurisdiction, that the tenancy agreement will be prepared by a property manager using the property manager’s name or business, but entered into on behalf of an owner. While the tenancy agreement in this case is certainly an unusual document, it nevertheless is clear that Mr Burchell was renting the premises on behalf of the owner. To put that another way, Mr Burchell was acting as an agent for Mr Sim.
There are numerous provisions in the agreement which refer to the ‘owner’ such as the following: To pay the Weekly Rental: to the Property Owner, the Guest / Tenant will be provided with a form from The Guest Home after Guest moved into the property. This form will allow the Guest to set up a weekly Automatic Payment to pay weekly rental into The Guest Home bank account.
If viewed from the perspective of agency law, Mr Sim is the principal, and Mr Burchell his agent. There is no doubt that Mr Sim is the principal, even at the hearing he confirmed that he had entered into the agreement with Mr Burchell to rent his house for him.
At the hearing, Mr Sim correctly identified that the agreement did not have his name or signature included on it. I accept that is the case, but that does not mean that there is not an agent/principal relationship, there certainly is. In agency law, when the principal is not named (termed disclosed), they are simply referred to as a non-disclosed principal. Normally that means that if one of the contracting parties is to be sued, then the application is brought against the agent, but if the non-disclosed principal, subsequently becomes disclosed as is the case before me, then the application can be brought against either the agent or then disclosed principal
I note the District Court case of Mumby v Gary Brown Realty Limited [2011] DCR
This was a tenancy dispute. The original tenancy agreement was in the name of “the Professionals”, and then later Gary Brown Realty took over the tenancy. Communications also recorded that Gary Brown Realty was working as agent for the landlord. At the Tenancy Tribunal, the Tribunal ordered that only the owner (landlord) pay the sum ordered, but the tenants appealed that to the District Court, on the basis that they considered the order should have been that Gary Brown Realty pay that money. The District Court agreed, stating: [49]Gary Brown Realty taking over the role as agent for the owners in 2009 at the time of the letter to the tenant and also the residential tenancy agreement inserted the agent’s name in the landlord’s details. The bond lodged lists the agent as the landlord and the notice to the tenant to vacate the property was issued by the agent. [50] Accordingly, the agent is liable on the contract. The landlord is another additional party who can sue or be sued on the contract.” [51] As between the agent and the landlord, the rights of the landlord prevail as the agent, Gary Brown Realty Ltd, is the landlord’s agent. As between tenant and the agent, however, the tenant can sue the agent and the landlord although, of course, cannot recover against both. [52] The tenant is entitled to sue the person who made the contract and the agent cannot escape by saying that, in fact, he was really acting on behalf of someone else. The only avoidance of liability would be to show on the contract (and in the supporting documentation) that he is only an intermediary, for example by signing “as agent for” or “on behalf of”. [53] Regardless of the fact that the tenant was aware that Gary Brown Realty Ltd was an agent, the agent is still liable in respect to the tenancy. Had the tenant brought proceedings solely against the landlord then the agent would not have had any liability.”
While in that case the dispute related to whether the agent, Gary Brown Realty Limited, was liable, the court provided a helpful explanation of the joint liability between the agent and principal in such cases.
What this means, is that an order can be made against both Mr Sim as principal and Mr Burchell as the agent where appropriate. I consider this is a case where it would be appropriate to make the order against also the agent, because I accept that Mr Sim was not responsible for the failure to lodge the bond, and I accept that justice would require Mr Burchell should also have the order made against him.
The order requires immediate payment of the bond, and [The tenant/s] can elect to pursue that payment from either Mr Sim or Mr Burchell or both of them, but of course he can only receive one amount of $1,840.44.
As I explained at the hearing, the amounts will need to be paid, but if they are not, then [The tenant/s] can apply to have the order enforced. That is a process undertaken by the Ministry of Justice, and further information can be found at this address: https://www.justice.govt.nz/fines/about-civil-debt/collect-civil-debt/

FILING FEE

Because [The tenant/s] has been successful in his application, the landlords must reimburse the filing fee.

NAME SUPPRESSION

Taking into consideration the circumstances of the parties, and public interest, I have elected to order name suppression to apply for [The tenant/s].

Tenancy Tribunal case 4883048 — Tenancy dispute at Room 4, 79 Redvers Drive, Belmont, Lower Hutt 5010

Tenancy Tribunal case 4883048 — Tenancy dispute at Room 4, 79 Redvers Drive, Belmont, Lower Hutt 5010

Order

Reasons

BACKGROUND

POSITION OF THE PARTIES

PROCEDURAL NOTE

ANALYSIS

Can the bond refund be ordered?

Who should the order be made against?

FILING FEE

NAME SUPPRESSION

Order

Reasons

BACKGROUND

POSITION OF THE PARTIES

PROCEDURAL NOTE

ANALYSIS

Can the bond refund be ordered?

Who should the order be made against?

FILING FEE

NAME SUPPRESSION