Published tribunal order
Tenancy Tribunal case 4928653 — Exemplary damages at 168 Taihoa North Road, Matamata, RD 3, Matamata 3473
Decided 17 Dec 2024 · Published 17 Dec 2024 · Application 4928653
- Exemplary damages
Order
- Dobbe Contracting Limited Andrew Dobbe must pay [The tenant/s] $1,827.00 immediately.
Reasons
- Both parties attended the hearing which was held at Tauranga District Court.
- The tenant was represented by Mr Graham who is an advocate. The landlord was represented by Mr Smith who is his legal counsel.
- The tenant has made a claim for return of the bond less rent arrears which he accepts he owes.
- He has also made a claim for exemplary damages, compensation and reimbursement of the filing fee.
- I shall take each of the claims in turn. Breach of quiet enjoyment
- 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 (RTA).
- 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.
- It was accepted evidence that on the morning of 16 May 2024, the landlord placed a tree over the driveway to the rented premises which prevented the tenant and any other people at the house from leaving the premises.
- I am satisfied that this was an unlawful act because it was intended to distress the tenant and was the culmination of a difficult relationship with the tenant.
- 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.
- I shall address each of these factors. Intention
- The landlord clearly intended to place the tree across the driveway. At today’s hearing he advised that he did so because he did not want the tenant to leave the premises before the police arrived to give him a trespass order. He considered that a trespass order was necessary because the tenant ought to have vacated the tenancy on 15 May 2024 and he had not done so.
- The placing of the tree over the driveway was clearly ill conceived. It did not achieve the landlord’s stated objective in wanting the tenants to leave – rather it prevented them from leaving. The effect on the tenant
- The tenant stated that the placing of the tree across the driveway left him feeling threatened. It also prevented people at his house at the time from leaving and going to work, causing pay deductions. Public interest
- There is considerable public interest in landlords abiding by their obligations and acting in accordance with the provisions of the Residential Tenancies Act 1986. The physical detention of a tenant is a significant breach. Award
- In coming to an award of $1800.00 in exemplary damages I have taken into account the above factors as well as the fact that an award of exemplary damages is intended to be punitive in nature and to act as a deterrent. Bond to be no more than 4 weeks’ rent
- Section 18(1) RTA provides that a landlord shall not require payment of a bond that is more than 4 weeks’ rent.
- It was accepted evidence that a term of the settlement reached between the landlord and tenant regarding their employment relationship was that the tenant would pay $2,000 in bond. This is more than 4 weeks’ rent.
- A breach of s18 is an unlawful act which may attract an award of up to $1,500.00.
- While I accept that there was a technical breach of s18(1), I am dismissing this part of the tenant’s claim for reasons that include: (a) The settlement was reached in accordance with the Employment Relations Act 2000; and (b) The settlement was negotiated between the parties who both had representation of some kind; and (c) I accept the landlord’s evidence that a total amount to be exchanged between the parties was negotiated and the amount attributable to the bond was just a way of distributing payments to reach the agreed total; and (d) Given that it was an agreed settlement with representation I can see no negative effect on the tenant. Compensation
- The tenant claims compensation for lost wages incurred by his partner and the cleaner because they were unable to get to work on time because of the tree being placed across the driveway.
- I am dismissing this claim for compensation because the tenant himself did not incur lost wages and because I have allowed for the lost wages in the award of exemplary damages. Bond refund
- The tenant claims the refund of the bond he paid.
- The landlord states that he does not want the bond paid out because he has claims that he wishes to make against the tenant.
- Section 22B(2) RTA provides that 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 landlord has not filed an application to the Tribunal and so I must order the payment of the bond to the tenant. Filing fee reimbursement
- The tenant has substantially succeeded with the claim and so I am ordering the landlord to reimburse the filing fee to the tenant. C ter Haar 17 December 2024