What was Tenancy Tribunal case 4884121 about?

The tribunal order states: Faeanza Whaitiri must pay [The tenant/s] $1,520.44 immediately, calculated as

How much money was awarded in case 4884121?

Property Damage: $500.00 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 4884121?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4884121?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10371024-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4884121 about?

The tribunal order states: Faeanza Whaitiri must pay [The tenant/s] $1,520.44 immediately, calculated as

How much money was awarded in case 4884121?

Property Damage: $500.00 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 4884121?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4884121?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10371024-Tribunal_Order_Redacted.pdf.

6 Parau Street, Kaiti, Gisborne 4010 Tenancy Tribunal Case 4884121 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4884121 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$500.00	Bond not lodged
Exemplary damages: Breach of Quiet Enjoyment	$1,000.00	Breach of Quiet Enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Claims and awards in Tenancy Tribunal application 4884121 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$500.00	Bond not lodged
Exemplary damages: Breach of Quiet Enjoyment	$1,000.00	Breach of Quiet Enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Order

Faeanza Whaitiri must pay [The tenant/s] $1,520.44 immediately, calculated as shown in the table below:
All other claims are dismissed.
Faeanza Whaitiri is to lodge the bond of $2,190.00 with the Bond Centre immediately.

Reasons

[Tenant 1] attended the hearing on behalf of the tenants. Faeanza Whaitiri, the landlord, also attended the hearing but was about 45 minutes late arriving at the hearing. Ms Whaitiri said she had been waiting outside the hearing room. The hearing was restarted for Ms Whaitiri to participate fully in the hearing.
The tenants have applied for refund of the bond, bond not lodged, breach of quiet enjoyment, exemplary damages and refund of the application fee. Bond not lodged
[The tenant/s] claimed the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The bond of $2,190.00 was paid by the tenants to the landlord on 27 April 2022. The tenants said they also paid one week’s rent of $730.00 on top of the bond and paid a total of $2,920.00 to the landlord on 27 April 2022. Ms Whaitiri eventually acknowledged that she likely received $2,920.00 from the tenants and confirmed that she accepted they paid her a bond of $2,190.00. Ms Whaitiri said she had not lodged the bond and accepted there was no excuse for not doing so. She said she had other issues going on at the time and failed to lodge the bond. [Tenant 1] said she had spoken with the landlord multiple times, asking her to lodge the bond, without success. There was no receipt issued by the landlord to the tenants for the bond.
The landlord said she has used some of the bond money to apply to rent, as there has been some recent confusion between the parties about the status of the tenancy and ownership of the property. The tenants said they property is up for mortgagee sale on 24 May 2024, and they were told not to continue paying rent to the landlord. [Tenant 1] said she has been trying to find out where and to whom they must pay rent currently. At the hearing, the landlord provided confirmation via a bank email that rent payments are to continue being made to the landlord until the property is sold. Ms Whaitiri acknowledged that, prior to recent events and confusion about the rent payments and mortgagee sale, the tenants have been generally good about paying rent, apart from a few occasions when payment was delayed. [Tenant 1] explained the two occasions that rent was delayed due to bank error and said she had proactively contacted the landlord to let her know at the time and had sorted it out as soon as she could. The issue of rent payments is separate to lodging the bond.
In failing to lodge the bond, I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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) Residential Tenancies Act 1986.
The issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. There, damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
Similarly, in this situation, the landlord has allowed a situation to continue for the whole period of the tenancy since it started on 30 April 2022. As such, I find that the landlord committed this unlawful act intentionally.
I have dealt with the intent of the landlord above. As a result of the landlord’s inaction, the bond still has not been lodged, which I find to be a significant delay in lodging it. Bonds are held in trust on the tenant’s behalf. In my view, it is in the public interest for bonds to be lodged as quickly as possible after receipt of the tenant’s money. There is also a public interest in tenants knowing their funds are safe and held in trust in a neutral Bond Centre, in the event of any disputes.
The maximum level of exemplary damages is $1,500. In this case I consider an order of one third of the maximum would be indicated. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. I cannot see any aggravating or mitigating factors that would argue for a higher or lesser order. I therefore order exemplary damages of $500.00.
Ms Whaitiri is to lodge the bond of $2,190.00 immediately with the Bond Centre, as the tenancy is still current. The parties can sort out rent payments as between themselves separately.
As the tenancy is still current, I decline to deal with the refund of bond claim and indicated this to the parties during the hearing. For the sake of completeness, I dismiss this claim. Breach of Quiet Enjoyment
[The tenant/s] claimed 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 tenants said the landlord contacted them about once a month, texting about wanting to live in a bus at the property, and about moving back into the property and threatening to make them leave, or changing the bank account details for rent payments back and forth, or wanting to come onto the property to get items out of a container on the property. [Tenant 1] said one text from the landlord was sent to her at 3am. The tenants said the landlord often came around and was aggressive, threatening to increase the rent significantly. [Tenant 1] maintained the landlord would stand over her and bully her and said she felt unsafe around the landlord. Ms Whaitiri denied harassing the tenants and said she tried to leave them alone.
On 27 April 2024, the tenants said there was an incident when the landlord, her son and ex-partner came to the property to get items from the container and things escalated between the landlord and one of the tenants. [Tenant 1] said the landlord was angry and aggressive and she was certain the landlord would have come at her, had she not had dogs at the property, and had the landlord’s son and ex-partner not held her back and told her to leave.
Ms Whaitiri said she had gone to the property on 27 April 2024 to try to arrange for removal of the container from the property, which she said was outside the gate but still on the property. She said she wanted to get that issue sorted out before the property sold. While there, she said the tenant had told her she no longer owned the property, but the bank did. Ms Whaitiri said she was frustrated as the tenant was incorrect, that she still did own the property but said she backed off and left the property, as the tenants’ dogs were intimidating.
The tenants went to the police and had Trespass Notices issued to Ms Whaitiri and her ex-partner after the incident on 27 April 2024.
The tenants said they each have multiple serious health issues, which have been exacerbated by the stress the landlord has put them under constantly with her behaviour.
Both parties read out text messages they had sent each other but did not provide copies of these. Most appeared to relate to queries about rent payments, some related to the landlord’s request to obtain items from her container. Ms Whaitiri admitted she had texted the tenant at 3am once, because the rent payment had been delayed and her son was waiting for money for a trip. Ms Whaitiri also admitted that she had asked [Tenant 1] about being able to live at the property in a housebus, but that when [Tenant 1] did not appear receptive to this, she stopped discussing it. Ms Whaitiri said she tried to arrange for property inspections more recently, but felt she got fobbed off by the tenants and that she had only inspected the property once during the entire tenancy so far. Ms Whaitiri said she did let [Tenant 1] know that her ex-partner intended on selling the house in 2022, only for that plan to change later.
There has been some recent communication between the parties about the rent payments, with the landlord telling the tenants to continue paying rent to her pending the sale of the property, and the tenant getting conflicting information from the real estate agent about this.
Given the evidence that Ms Whaitiri admitted approaching the tenants about living on the property in a housebus, that she texted them at 3am about a delayed rent payment, that the tenants said the landlord had also contacted them about potentially moving back into the property and then not, and the tenants saying they had to often tell the landlord that a Tribunal application would be required to end the tenancy when the landlord threatened to make them leave, and that the landlord threatened to increase the rent significantly, which I accept as likely, I find it likely that the landlord breached the tenants’ quiet enjoyment. I do not consider here the communication between the parties about rent payments or property inspections, which would have formed part of a normal course of communication between landlord and tenant.
The parties disputed whether the communication between the landlord and tenants was constant or harassing. The tenants’ evidence was that their health issues have been exacerbated by the stress of the landlord’s aggressive behaviour over the period of their tenancy, which I accept. The tenants said they came to expect and received regular communication from the landlord with threats about them having to leave the property, where [Tenant 1] said she would constantly reinforce with the landlord that she would need to apply to the Tribunal to end the tenancy, which I also accept. As such, the landlord’s behaviour has worried and distressed the tenants, has created a pattern of behaviour directed towards the tenants, and meets the definition of harassment.
Therefore, I find the landlord has committed an unlawful act.
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) Residential Tenancies Act 1986.
The issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. There, damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
Similarly, in this situation, the landlord has allowed this situation to continue for the whole period of the tenancy. As such, I find that the landlord committed this unlawful act intentionally.
I have dealt with the intent of the landlord above. As a result of the landlord’s behaviour, the tenants’ health has suffered. It is in the tenants’ interests that they are allowed to enjoy their tenancy without worrying about the landlord threatening to make them leave, or interrupt their living situation regularly, and it is in the public interest that tenants are allowed to have quiet enjoyment of their tenancies.
The maximum level of exemplary damages is $3,000. In this case I consider an order of one third of the maximum would be indicated. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. I cannot see any aggravating or mitigating factors that would argue for a higher or lesser order. I therefore order exemplary damages of $1,000.00. Filing fee
Because [The tenant/s] have been successful with the claim I must reimburse the filing fee. Suppression
Both parties requested suppression. As the tenants have been successful with the claim, they are entitled to suppression. Therefore, I order that the tenants’ names and identifying details are not to be published. See section 95A(1) Residential Tenancies Act 1986.
The landlord has not been successful in the claim nor was there any evidence of circumstances of the landlord that would indicate it is more in their interests not to publish their name than in the public interest to publish their name. Therefore, I do not grant suppression to the landlord.

Tenancy Tribunal case 4884121 — Exemplary damages at 6 Parau Street, Kaiti, Gisborne 4010

At a glance

Tenancy Tribunal case 4884121 — Exemplary damages at 6 Parau Street, Kaiti, Gisborne 4010

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions