What was Tenancy Tribunal case 4909118 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4909118?

Property Damage: $2,600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4909118?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4909118?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10666667-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4909118 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4909118?

Property Damage: $2,600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4909118?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4909118?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10666667-Tribunal_Order_Redacted.pdf.

55 Mills Street, Waharoa, Waharoa 3401 Tenancy Tribunal Case 4909118 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4909118 — net $2,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: terminating the tenancy without grounds	$2,600.00	terminating the tenancy without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,620.44
Total payable by Landlord to Tenant	$2,620.44

Claims and awards in Tenancy Tribunal application 4909118 — net $2,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: terminating the tenancy without grounds	$2,600.00	terminating the tenancy without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,620.44
Total payable by Landlord to Tenant	$2,620.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names.
Jack Biddle must pay [The tenant/s] $2,620.44 immediately.

Reasons

The tenants attended the hearing but the landlord did not.
The Tribunal is able to continue to hear and determine a claim where a respondent party does not appear and they have been served with the claim and the notice of hearing. I am satisfied the file records the landlord was sent notice of the hearing both by post and email.
The tenants claim exemplary damages for the landlord: a) terminating the tenancy without valid notice b) entering the tenancy without consent; c) disposing of their goods.

Did the landlord terminate the tenancy without valid notice?

The tenants are husband and wife. [Redacted].
The male tenant’s mother also lives at the tenancy premises. [Redacted]. The tenants’ tenancy agreement does not include the tenant’s mother; the tenants understand she has a separate tenancy agreement with Mr Biddle.
The Residential Tenancies Act 1986 (RTA), applies to every tenancy in New Zealand for residential purposes except as specifically provided (section 4, RTA).
Section 5, RTA sets out a number of cases where the provisions of the RTA do not apply. Section 5(1)(n) excludes situations where the premises are continually used as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family. “Member of the landlord’s or owner’s family” is defined in section 2 as including any person who is or has been related to the landlord or owner by blood, by or through marriage, civil union or de facto relationship.
Therefore, as the male tenant is the landlord’s brother-in-law, the exclusion under section 5(1)(n) applies to this tenancy.
However, parties to a tenancy that would otherwise be excluded from the RTA can agree that the provisions of the RTA apply to the tenancy (section 8, RTA). The tenancy agreement records:
Therefore I am satisfied the parties have agreed that the RTA applies to this tenancy.
The tenancy agreement records that the tenancy “commences on 8 August 2022 at 12:00 noon and ends at 12:00 noon on 8 August 2022”. I take the recorded end date of the fixed term to be an error, as otherwise the fixed term ends at the same time it begins. The tenants confirmed the start date of the tenancy but do not remember what length of fixed term was discussed when the tenancy commenced.
The tenancy agreement that if after the end of the term of the tenancy the tenant remains in possession, the tenancy is deemed to be a month-to-month tenancy 1 . 1 See Clause 9 of the Tenancy Agreement
However the provisions of the RTA do not allow for month-to-month tenancies; tenancies are either for a fixed term or are periodic tenancies which continue until either party gives notice of a nature allowed under the RTA to end the tenancy, or the Tribunal terminates the tenancy as the result of an application by the landlord or the tenancy.
The RTA sets out that on the expiry of a fixed term tenancy of more than 90 days the tenancy continues as a periodic tenancy with the same terms contained in the expired tenancy (section 60A).
The length of the fixed term is uncertain under the agreement, but it does give clarity that the tenancy is intended to continue after the fixed term expires, albeit that the agreement states it is deemed to be a month-to-month tenancy. From the evidence in front of me the only reasonable conclusion I can reach is that the tenancy was a periodic tenancy at the time the landlord gave notice to the tenants. The notice to terminate:
On Thursday 30 May 2024 the landlord’s daughter, Parati, and son, Haami, arrived at the premises at around 11am. The female tenant was home but the male tenant was at work. The female tenant says Parati and Haami entered the premises without giving any notice or having consent to do so. They told her that she and her husband had to move out of the tenancy by 4pm that day. The male tenant arrived at about 3.45pm and was told the same by Parati.
The tenants said they felt they had no rights and no choice other than to vacate that day as Parati and Haami were adamant they were to move out that day and take all of their belongings with them. The tenants were told Parati and Haami had flown to New Zealand from Australia earlier that day, and were there on behalf of their parents to “kick them out” of the premises. The landlord and his wife also live in Australia.
The tenants gathered some of their possessions and vacated the premises by
00pm on 30 May. The rest of their possessions were left at the tenancy premises.
The tenants’ evidence is persuasive that they had no notice Parati and Haami were arriving or that the landlord was terminating the tenancy. They said they were not given any reason why they had to leave, but that a disagreement had occurred during a telephone conversation between the female tenant and the male tenant’s sister (the landlord’s wife) several weeks earlier.
The tenants went to the Police but the Police would not get involved as Parati and Haami were there on behalf of the landlord.
The tenants have since learned about their rights as tenants and filed their claim.
Section 50, RTA sets out that a landlord can terminate a periodic tenancy by giving notice in accordance with certain circumstances as set out under the RTA. The circumstances where a landlord is able to terminate a tenancy by giving the notice include 2 : • 63 days’ notice in circumstances where the owner of the premises or a family member is intending to live in the premises to live, or the premises is needed for an employee • 90 days’ notice in circumstances where the premises are to be sold, or the landlord has an unconditional sale of the premises which requires vacant possession, or extensive alterations are going to take place and it would not be reasonably practicable for the tenant to remain in occupation.
Notice to terminate a tenancy, whether given by the landlord or the tenant, must be in writing, identify the premises, specify the date the tenant is to vacate and where the notice is given by the landlord, set out the reasons for termination (section 51(3) RTA).
The RTA does not enable a landlord to terminate a tenancy without a reason, or for reason/s other than those set out in the RTA.
Here the landlord has not given the tenants a notice in writing to terminate the tenancy and has not provided a reason for the termination, let alone a reason allowed under the RTA. The tenants were told to move out in a time frame that is not in keeping with the provisions of the RTA. I find the landlord did not validly terminate the tenancy.
In making this finding I am satisfied that Parati and Haami were acting as agents of the landlord. ‘Landlord’ is defined in the RTA as including the agent of a landlord (section 2(1)). I am persuaded by the tenants’ evidence that Parati and Haami were acting as Mr Biddle’s agents as they told the tenants they were acting on his behalf, and as Parati represented the landlord at the mediation held on 7 June 2024 regarding the tenants’ belongings that were left at the premises.

Should exemplary damages be awarded?

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 exemplary damages be paid by the wrongdoing landlord or tenant. The RTA sets out that breaches of certain provisions are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal can 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. 2 See section 51, RTA
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.
Under section 60AA a landlord must not give a notice to terminate the tenancy knowing they are not entitled to do so. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
I find the landlord has committed an unlawful act by breaching s 60AA. 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 (section 109(3) RTA).
The central issue under s 60AA is whether the landlord gave notice to terminate knowing he was not entitled to do so. I consider that the required knowledge is established. It is well accepted that the legal definition of “knowledge” means knowing that something is so or being “virtually certain” about something. It also covers a person who should have known of the circumstance or result and includes acting with deliberate ignorance or reckless disregard for the prohibition, often described as wilful blindness or indifference.
I find the landlord acted intentionally in giving the notice. There are several factors which persuade me that the landlord knew or ought to have known he was not entitled to terminate the tenancy at short notice and without reason: a. The landlord sent his daughter and son to New Zealand to end the tenancy with immediate effect and to ensure the tenants’ belongings are removed from the premises b. The landlord has chosen to contract back into the RTA by including in the tenancy agreement that the tenancy is construed in accordance with the laws of New Zealand (clause 20). The only Act that can apply under New Zealand law to residential tenancies is the RTA. c. The tenancy agreement, which is not a standard form Tenancy Services residential tenancy agreement, includes a section headed “Address for Notice” and sets out how notices can be served on the tenants and the landlord. That shows Mr Biddle had turned his mind to the need to serve notices, such as a termination notice, on the tenants. d. An intentional act is a deliberate act, not a careless oversight. The District Court in TMT New Zealand Limited t/a Strata Property Management v Sweeney and Sundahl 3 stated: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.” The landlord is deemed to know the law and on that basis failing to provide proper notice and reason to terminate is fundamental and properly seen as intentional. Terminating a tenancy is not an action open to a landlord unless it complies with the written notice requirements and falls within the circumstances that enables a landlord to terminate under section 50.
The effect on the tenants was that they moved out of the premises with well less than 24 hours’ notice and with only some of their belongings. They had to find somewhere to live at short notice. I am persuaded this has been very stressful on the tenants. It is in tenants’ interests that landlords terminate tenancies only by giving proper written notice in circumstances where there is valid reason for termination as allowed under the RTA.
There is considerable public interest in landlords being punished by paying exemplary damages for failing to comply with important obligations such as this under the RTA.
Given the circumstances I find it appropriate and just to award exemplary damages. The tenants have applied for the maximum award of $6,500. However the District Court has ruled that the highest awards should be reserved for the worst cases 4 . There is no indication that the landlord has committed a previous breach of this nature. I consider an award of $2,600, which is 40% of the maximum award, is justified to mark disapproval of the landlord’s conduct.

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 sections 48(1) and (2) RTA.
The tenants’ view is that Parati and Haami entered inside the premises without consent or giving notice. The tenants confirmed there is a sleepout at the property which the landlord advised at the start of the tenancy was not part of the tenancy premises and would be used from time to time by himself or other 3 [2021] NZDC 16182 4 McDonald v Dodds DC Hamilton CIV 2009-019-1542, 26 February 2010 members of his family to stay in. The sleep out has no bathroom or cooking facilities and the tenants said it was agreed that the landlord or any member of his family could enter the premises to use the kitchen and bathroom facilities during their stay.
The entry into the premises is complicated by the family arrangement. [Redacted]. Parati and Haami stayed in the sleepout, and as had been previously agreed, could enter the premises to use the bathroom and the kitchen. However I find they acted unlawfully in entering the premises for the purpose of acting as the landlord’s agents and giving the tenants’ notice to terminate the tenancy. That is, they were not intending to enter to visit family or use the bathroom or kitchen facilities.
Intention is proven as they intended to enter the premises and give the notice. The tenants were shocked and overwhelmed at receiving the notice. A landlord, even if they are a family member, cannot enter at their will to hand a notice to tenants to terminate a tenancy as has happened here. The RTA sets up procedures and requirements for parties to adhere for good reason.
Accordingly I find the landlord’s agents have breached s 48 and entered the premises without the consent of the tenants or without giving them notice of entry. 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 RTA.
However, I find the unlawful entry was an integral part of the unlawful termination. I do not consider it appropriate make a further exemplary damage order for what is essentially the same breach as the unlawful termination. The District Court in Manage My Rental Limited v Baxter 5 has held in such situations that only one order should be made. Are the tenants entitled to exemplary damages as the landlord has disposed of their goods?
When the tenants moved out of the property on 30 May they took what goods they could with them and left the remainder of their goods in the bedroom they had occupied.
On 7 June they received a text message from Parati: “You have exactly until 5pm today to collect the remainder of your things from 5 Mills St from then on a trespass notice will be issued to you...” 5 [2015] NZDC 12011
The message also stated that the trespass notice will be in place for 2 years and that if they did not remove all of their possessions by 5pm their goods would be taken to the local charity shop.
Later on 7 June the male tenant and Parati attended a mediation by phone (using a service through [redacted]) where it was agreed that the tenants belongings could remain at the tenancy premises until they found somewhere to shift to. The tenants have since collected some work items of the male tenants and discovered their belongings had been shifted to the garage. They raised their concerns that the mediated agreement has been breached as the goods are in the garage and are damaged, or will be damaged, as the garage is not watertight.
At the hearing the tenants believed their goods are in the garage currently and have not been disposed of. When an agreement is reached the parties are bound by the terms they agree to.
As the application is made on the basis that the landlord has disposed of the goods and that does not appear to be the case, I have not determined this part of the application.
The ability for a landlord to dispose of tenants’ goods left at the premises is set out in sections 62 to 62F of the RTA. Both parties are encouraged to contact Tenancy Services to understand what rights a landlord has to dispose of tenant’s goods once a tenancy has ended. Tenancy Services has a free helpline which is available to landlords and tenants: 0800 TENANCY.
Application Fee: As the tenants have been mainly successful in their application they are entitled to reimbursement of the filing fee.
Suppression: Name suppression is available to the substantially successful party, which in this case is the tenant. The tenant has requested name suppression therefore a suppression order is made (s95A, RTA).

Tenancy Tribunal case 4909118 — Exemplary damages at 55 Mills Street, Waharoa, Waharoa 3401

At a glance

Tenancy Tribunal case 4909118 — Exemplary damages at 55 Mills Street, Waharoa, Waharoa 3401

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord terminate the tenancy without valid notice?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord terminate the tenancy without valid notice?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord terminate the tenancy without valid notice?

Should exemplary damages be awarded?

Did the landlord enter the tenancy without consent or notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord terminate the tenancy without valid notice?

Should exemplary damages be awarded?

Did the landlord enter the tenancy without consent or notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions