What was Tenancy Tribunal case 4926975 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 4926975?

Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Credit At End Of Tenancy (16/11…: $299.00 awarded to tenant

What type of tenancy dispute was case 4926975?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4926975?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10856188-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4926975 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 4926975?

Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Credit At End Of Tenancy (16/11…: $299.00 awarded to tenant

What type of tenancy dispute was case 4926975?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4926975?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10856188-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4926975 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4926975 — net $1,417.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent credit at end of tenancy (16/11/23	$299.00	Rent credit at end of tenancy (16/11/23
Filing fee reimbursement	$20.44	Filing fee reimbursement
Exemplary damages – failure to lodge bond	$500.00	Exemplary damages – failure to lodge bond
Refund of bond	$598.00	Refund of bond
Net award	$1,417.44
Total payable by Landlord to Tenant	$1,417.44

Claims and awards in Tenancy Tribunal application 4926975 — net $1,417.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent credit at end of tenancy (16/11/23	$299.00	Rent credit at end of tenancy (16/11/23
Filing fee reimbursement	$20.44	Filing fee reimbursement
Exemplary damages – failure to lodge bond	$500.00	Exemplary damages – failure to lodge bond
Refund of bond	$598.00	Refund of bond
Net award	$1,417.44
Total payable by Landlord to Tenant	$1,417.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of [The tenant/s] and [The landlord’s employee] name and identifying details.
The application against [The landlord’s employee] is dismissed.
999 Limited (T/A Hawera Studios & Apartments) must pay [The tenant/s] $1,417.44 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing. I granted the tenant the right to representation following evidence concerning her ability to represent herself (s 93, Residential Tenancies Act 1986 (RTA)). A support person also attended for the tenant. In fact, the tenant was able to speak for herself during the course of the hearing on many occasions. Mr Yousef attended for the landlord.
The Tribunal must hear an application that has been filed by the tenant for the return of $897 following the end of the tenancy and claims for exemplary damages for a failure to lodge the bond and the landlord requiring a security deposit.

Who is the Landlord?

The tenant made the application in the name of “999 Limited (T/A Hawera Studios & Apartments) [The landlord’s employee]”.
999 Limited is listed on the letter referred to below and the tenant was to deposit the bond/rent into the account of this company. I find that 999 Limited is the landlord.
The tenant made no submissions as to why she regards [The landlord’s employee] to be the landlord. I cannot be satisfied that there are sufficient reasons or evidence to find that he is also the tenant’s landlord. I therefore dismiss the application against him.

Is the tenancy excluded from the Residential Tenancies Act?

At the start of the hearing the landlord raised an issue that the Residential Tenancies Act 1986 (RTA) may not apply.
Section 5 RTA sets out several tenancies or occupancy agreements expressly excluded from the RTA. The landlord referred to emergency accommodation and therefore I referred in the hearing to section 5(1)(y) RTA which refers to emergency or transitional accommodation. This provides: “if the premises are used to provide emergency or transitional accommodation and— (i) the provision of the accommodation is funded wholly or partly by— (A) emergency housing assistance paid to or for the credit of a person under the Special Needs Grants Programme; or (B) any other payment made by a government department for the provision of emergency or transitional accommodation to people in need of housing; or (ii) the provider of the accommodation is a person, or class of person, prescribed by regulations for the purposes of this paragraph.”
The burden of proof here falls on the party contending that the agreement is excluded, to prove that the provisions of the RTA do not apply. The standard of proof required is on the balance of probabilities. The party must satisfy the Tribunal that it is more likely than not the agreement is excluded.
Adjudicator King in Applicant v Bliss [2024] NZTT 467341 succinctly set out that Emergency Housing is short term (7 day) emergency accommodation. It is funded by WINZ though the one-off Special Needs Grant to qualifying applicants. Emergency housing can only be provided by suppliers registered with WINZ, who are approved and have contracted to meet the specified standards. Providers of emergency housing are accountable not through application of the RTA but under their provider contracts. Adjudicator King also set out that Transitional Housing is different than emergency housing. It provides short term accommodation for those in need of housing. It is partly paid for by the tenants, with top up payments able to be funded by the Ministry of Housing and Urban Development. Again, Transitional Housing is only able to be provided by approved suppliers contracted to MHUD. The suppliers are accountable under their supplier contracts, not through application of the RTA.
The landlord says it is an approved emergency accommodation provider but presented no probative evidence of this. The landlord has not proved that it is an approved provider of emergency or transitional accommodation.
Further, even if that were the case, I also find that the evidence presented does not support a finding that the premises in the case of this tenant was used as emergency or transitional accommodation or that the accommodation was funded through special needs grants or through government payments for provision of emergency or transitional housing to those in need.
This is because the landlord says that it operates three accommodation blocks, one for emergency housing, one described as being for short term stays and one for long stays. The tenant was housed in the short term stay block. Previously the tenant was living with her mother in the complex but her move into a separate unit was driven by the desire for more independence.
The letter setting out the terms of her stay, which the landlord says was created for WINZ, set out the terms of the agreement and provided no termination date. It referred to the tenant “boarding” and set a start date and the weekly rent alongside the account to pay to and the security required.
The letter did not specify that the tenant was in emergency accommodation or refer to transitional accommodation. In fact, it set out that the tenant was separate from the emergency accommodation but must abide by the same rules. I also heard from the tenant how rent was paid not via a special needs grant but via her usual benefit with an accommodation allowance supplement. She also obtained a Bond Grant at the start of the tenancy (considered further below).
After consideration of these points the landlord did not pursue his position that this was a tenancy excluded by the RTA.
I find I have jurisdiction to hear this claim. Failure to lodge the Bond with the Bond Centre
The tenant seeks exemplary damages for failure to lodge her bond with the Bond Centre.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA. However, section 66D RTA provides that a bond for a boarding house does not need to be lodged with the Bond Centre if it is for 1 weeks rent or less.
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 RTA.
The parties agree that the tenant paid $897 at the start of the tenancy in accordance with the landlord’s letter that set out the terms of the tenancy. That letter set out that the tenant has to pay 2 weeks rent as a security and 1 week rent in advance. The landlord says the security was obtained to cover things like damage.
The RTA defines a bond as “any sum of money payable or paid under a tenancy agreement as security for the observance and performance of the tenant’s obligations under the agreement and this Act; but does not include any sum payable or paid by way of rent” (s 2, RTA).
I find that the $598 of the sum paid, although referred to in the letter as “security” is a bond. I find that the remaining $299 is rent paid in advance.
There is no dispute that the landlord has never lodged the bond with the Bond Centre.
At the hearing I spent time discussing with the parties if this was a boarding house tenancy. However, ultimately the nature of the claims bought mean that it is unnecessary for me to determine whether this was in fact a boarding house tenancy. This is because section 66D RTA provides that a bond for a boarding house does not need to be lodged with the Bond Centre if it is for 1 weeks rent or less and a bond for a tenancy that is not an excluded tenancy and is not a boarding house needs to be lodged in any event. The fact that the bond here is 2 weeks rent means that it should have been lodged within 23 days of receipt in either case.
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) RTA.
The landlord says that it was led to believe from MSD that it did not have to lodge this sum although there was no probative evidence of this or the basis for this (although it may have been in the context of emergency housing – which I have determined that this is not). The landlord says that it may have thought that it did not need to lodge it because there is a mix of types of tenancies at the property and this may have been handled incorrectly.
Landlords are required to understand their responsibilities to tenants. I am satisfied the landlord should have reasonably known that the bond had to be submitted to the Bond Centre within 23 days after receipt of it.
The obligations placed on a landlord to put the bond into the Bond Centre on trust for the tenant is an obligation the Tribunal takes seriously. The bond is owned by the tenant, until the parties agree that all or part of the bond can be paid to the landlords to cover proven debts.
I find it would be just to require the landlord to pay a sum of $500.00 in exemplary damages because: a. The landlord intentionally did not ensure that the bond was lodged with the Bond Centre within 23 working days and still had not lodged the bond with the Bond Centre as at the date of the hearing; b. The tenant is entitled to rely on the Bond Centre protecting her bond money that should have been placed in it on trust for the tenant’s benefit, unless it is proven the tenants owe the landlord a debt that both parties agree can be paid by the Bond Centre to the landlord or on order from the Tribunal. c. The tenant’s money was not protected by the Bond Centre (a third independent party) and it should have been. The landlord retained the bond. The tenant made enquiries of the Bond Centre to find out about the bond at the end of the tenancy and then discovered it had never been lodged. The tenant had to bring this application to the Tribunal. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach of its obligations to lodge the bond with the Bond Centre; and d. It is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests. Refund of $897 – Rent and bond
The landlord holds the tenant’s bond and agrees there is no reason to withhold payment to the tenant other than a concern it has about whether the money ought to be paid to MSD as MSD had indicated it should be paid to them.
The landlord has not bought an application to retain the bond. 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 (s 22B RTA). There is no such application.
This is enough to order a refund of the bond but in any event, I note that when a bond is paid under the RTA it is tenant money. The landlord does not have the right to unilaterally decide where the refund of the money is paid or make independent enquiries with a third party about payment.
I note that in its email to the landlord about refunds MSD did not in fact address the issue directly by referring to the specific tenant due privacy concerns. They only gave the landlord some very general guidance to consider. No reliance can be placed on this.
The tenant did not pay a security deposit to the landlord under the Emergency Housing regime. She paid a bond. The tenant’s bond and week’s rent in advance was obtained via MSD but in the form of a Bond Grant. This is evidenced by documentation provided to the Tribunal. Such grants are repayable to MSD by a tenant in instalments. This is also shown on the Bond Grant documentation filed. The landlord cannot know, and has no reason to know, how much the tenant remains indebted to MSD or if the grant has been repaid. That would be an issue between MSD and the tenant.
The bond of $598 is therefore to be refunded to the tenant.
The landlord agrees that at the end of the tenancy $299 had been overpaid in rent. No rent summary was available by the Tribunal but there was no dispute that the tenancy ended on 16 November 2023 and the tenant is $299 in credit for rent. That is also to be refunded to the tenant. I find there is no basis for the landlord to retain this. Security
The tenant also claims exemplary damages for the landlord requiring security other than permitted bond (s18A, RTA).
A landlord may not require a tenant to provide any form of security for the tenancy other than a bond or a guarantee. See section 18A(1) Residential Tenancies Act 1986.
I have found that the only security required was in fact a bond. It also did not exceed the permitted amount (4 weeks rent).
This part of the application is therefore dismissed. Filing fee
The tenant has been substantially successful and so I award reimbursement of the filing fee. Suppression
The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. The tenant has been substantially successful. Therefore, I award name suppression to the tenant party (s95A, RTA).
The landlord also sought suppression.
I award name suppression for [The landlord’s employee] the application has not been successful against him.
999 Limited has not been substantially successful. A residual discretion also exists to order name suppression but I cannot see any basis on which I could make that order. 999 Limited is therefore not awarded name suppression.

Tenancy Tribunal case 4926975 — Exemplary damages

At a glance

Tenancy Tribunal case 4926975 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Who is the Landlord?

Is the tenancy excluded from the Residential Tenancies Act?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Who is the Landlord?

Is the tenancy excluded from the Residential Tenancies Act?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions