What was the outcome of Tenancy Tribunal case 4930536?

The tribunal order states: Ken Davies must pay Grace Forsyth-Jones $960.00 immediately, calculated as

How much money was awarded in case 4930536?

Compensation: $500.00 awarded to tenant; Property Damage: $460.00 awarded to tenant

What type of tenancy dispute was case 4930536?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4930536?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11239865-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4930536?

The tribunal order states: Ken Davies must pay Grace Forsyth-Jones $960.00 immediately, calculated as

How much money was awarded in case 4930536?

Compensation: $500.00 awarded to tenant; Property Damage: $460.00 awarded to tenant

What type of tenancy dispute was case 4930536?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4930536?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11239865-Tenancy_Tribunal_Order.pdf.

25 Maxwelton Drive, Mairangi Bay, Auckland 0630 Tenancy Tribunal Case 4930536 — Property damage

Claims and awards in Tenancy Tribunal application 4930536 — net $960.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for failure to provide a written tenancy agreement	$500.00	Compensation for failure to provide a written tenancy agreement
Damages for loss of amenity	$460.00	Damages for loss of amenity
Net award	$960.00
Total payable by Landlord to Tenant	$960.00

Order

Ken Davies must pay Grace Forsyth-Jones $960.00 immediately, calculated as shown in the table below:
The tenant’s applications for the landlord: failing to provide keys to the premises; entering the premises without content or notice; and issuing of a retaliatory notice are dismissed.

Reasons

Both parties attended the hearing.
Grace Forsyth-Jones claims the landlord: failed to provide a written tenancy agreement prior to the tenancy commencing; did not provide her with keys for the premises; entered the premises without permission or on short notice; failed to maintain the premises; and issued a retaliatory notice. Burden of proof:
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. Did the landlord fail to provide the tenant with a written tenancy agreement before the tenancy commenced?
Section 13 of the Residential Tenancies Act 1983 (RTA) provides that a landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. Section 13A of the RTA provides that the landlord must ensure that the tenancy agreement contains certain information including that that on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) of the RTA.
The tenant says she was not provided with a written tenancy agreement before the tenancy commenced. The tenant says it was not until after 02 June 2024, when she issued a notice to the landlord saying he had breached his obligations to her by failing to provide a written tenancy agreement, that she received a written agreement.
The landlord does not dispute that he failed to provide the tenant with a written tenancy agreement. The landlord says he was unaware of this obligation. He says that he only became aware that he was obliged to provide a written tenancy agreement when the tenant requested it on 02 June 2024 and that he provided it shortly after.
Landlords are expected to know their obligations under the RTA. In T.M.T New Zealand Limited Trading as Strata Property Management v Kirk Liam Sweeney and Anne-mette Holmgard Sundahl [2021] NZDC 16182, the landlord had failed to provide an insurance and healthy homes compliance statement. The Court held that: The obligation to provide these documents are fundamental obligations on landlords of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. 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 consequence for the unlawful acts involved by claiming ignorance of the law.
Section 13(4) and Schedule 1A of the RTA provides that breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. The tenant is not seeking exemplary damages. She is seeking compensation for stress.
The tenant said the additional terms in the written agreement provided to her after 02 June 2024 did not reflect what had been agreed. The tenant said this caused her stress.
I find that the failure to provide the written tenancy agreement was stressful for the tenant. A dispute over the terms of the tenancy agreement is significantly less likely to occur if the landlord had complied with section 13 of the RTA.
I find that the landlord breached section 13 and award $500 in general damages for this breach.

Did the landlord provide the tenant with keys to the premises?

The tenancy started on 15 September 2023. The tenant says that the landlord did not provide her with keys to the premises. The tenant says that she asked the landlord for keys on several occasions. The landlord says that the tenant was provided with keys at the start of the tenancy.
On 2 June 2024, the tenant issued a notice stating that the landlord had not provided her with keys or a written tenancy agreement and asking for this to be remedied within 14 days. That same day, the landlord sent the tenant a text message saying he had a new set of keys cut and had left them for her.
I am not satisfied that the landlord failed to provide the tenant with keys to the premises.
This claim is dismissed.

The tenant claims the landlord entered the premises without consent or notice.
The tenant says the landlord would knock on her door unannounced or having only provided short notice.
Section 48 of the RTA relates to the landlord’s right of entry, with subsection one confirming that the landlord “shall not enter the premises” other than that with the consent of the tenant given at the time, or if the Act would otherwise allow it, such as following notice. However, the landlord does not need to obtain consent, or give notice to enter the land comprising the tenancy. This includes walking to the front door.
This claim is dismissed.

Did the landlord fail to maintain the premises?

One of the requirements of section 45 of the RTA is that a landlord must provide and maintain the premises in a reasonable state of repair.
The tenant claims that the landlord has breached his obligations under section 45 of the RTA by failing to fix the sliding door. On 01 June 2024, the tenant sent the landlord a text message saying that the sliding door was “very stiff to open”. The following day, the landlord sent a message to the tenant saying that he had tried to fix the door but needed to contact a joinery specialist.
On 2 July, the tenant sent a text message to the landlord asking when the landlord was going to be fixed. The landlord replied saying that as the door had to be replaced and other work needed to be performed, he would be issuing a 90 day notice to carry out the repairs.
The tenant said she was left with a door that would not open for several months. The landlord said he was not aware that the tenant could not open the door. The landlord accepted the door was stiff but said it could still fully shut and open. He said the tenant did not say that she could not shut the door.
In the tenant’s application to the tribunal of 19 August 2024, she states that the door would not slide to a closed position.
On the basis of probabilities (see paragraphs 3-5 above), I find that the landlord was aware the tenant was having difficulty with the sliding door. However, I also find that the earliest the landlord could be expected to be aware that the door had not closed to a sliding position was when the tenant lodged the application to the Tribunal on 19 August 2024.
I find that there was a failure to maintain the premises.
Section 45(1A) provides that failure to maintain the premises is an unlawful act for which exemplary damages of up to $7200.00 can be awarded. The tenant has not sought exemplary damages. She is seeking compensation.
The rent per week for the premises was $400.00. The tenant first complaint about the issue on 01 June 2024 and the tenancy ended on 15 September 2024. This means the landlord was aware that the tenancy was having difficulty with the door for a period of just over 11 weeks and that the tenant could not close the door for a period of 4 weeks. The breach was such that the use and amenity of what the parties had bargained for was affected. I consider an award of damages for loss of amenity is appropriate. I award $460 as general damages. This is calculated as 5% of the rent for the period of 11 weeks from 01 June 2024 to 18 August and 15% of the rent for the period from 19 August to 15 September 2024.

Is the claim that the notice issued by the landlord retaliatory out of time?

The tenant says the termination notice was retaliatory and seeks compensation. The notice 90 day notice to terminate the tenancy was sent to the tenant on 02 July 2024. As the notice was issued after 5pm the landlord said it would not be deemed issued until the following day, 03 July 2024. It was due to expire on 2 October 2024.
Section 54(1) of the RTA provides that a termination notice may be declared retaliatory and of no effect where within 28 working days after receipt of a notice terminating the tenancy, the tenant applies for an order declaring such on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by the RTA or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
The 28-day period for filing is mandatory. In Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081, the District Court held: In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not be ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of day or two caused by circumstances beyond a tenant’s control, such as documents being lost in the post or computer or internet outage or inaccessibility.
The tenant applied to the Tribunal to have the termination notice declared retaliatory on 18 August 2024. This was 15 days after the time limit of 28 days had expired. This is not a run over of a few days for good reason. As the application is made well outside the time limit, I do not have jurisdiction.
The claim for retaliatory notice is dismissed.

Should the tenant be awarded reimbursement of the filing fee?

While the tenant has had some success with her claim, she has not been wholly or substantially successful. For this reason, I have not made an award for reimbursement of the filing fee.

Claims and awards in Tenancy Tribunal application 4930536 — net $960.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for failure to provide a written tenancy agreement	$500.00	Compensation for failure to provide a written tenancy agreement
Damages for loss of amenity	$460.00	Damages for loss of amenity
Net award	$960.00
Total payable by Landlord to Tenant	$960.00

Order

Ken Davies must pay Grace Forsyth-Jones $960.00 immediately, calculated as shown in the table below:
The tenant’s applications for the landlord: failing to provide keys to the premises; entering the premises without content or notice; and issuing of a retaliatory notice are dismissed.

Reasons

Both parties attended the hearing.
Grace Forsyth-Jones claims the landlord: failed to provide a written tenancy agreement prior to the tenancy commencing; did not provide her with keys for the premises; entered the premises without permission or on short notice; failed to maintain the premises; and issued a retaliatory notice. Burden of proof:
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. Did the landlord fail to provide the tenant with a written tenancy agreement before the tenancy commenced?
Section 13 of the Residential Tenancies Act 1983 (RTA) provides that a landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. Section 13A of the RTA provides that the landlord must ensure that the tenancy agreement contains certain information including that that on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) of the RTA.
The tenant says she was not provided with a written tenancy agreement before the tenancy commenced. The tenant says it was not until after 02 June 2024, when she issued a notice to the landlord saying he had breached his obligations to her by failing to provide a written tenancy agreement, that she received a written agreement.
The landlord does not dispute that he failed to provide the tenant with a written tenancy agreement. The landlord says he was unaware of this obligation. He says that he only became aware that he was obliged to provide a written tenancy agreement when the tenant requested it on 02 June 2024 and that he provided it shortly after.
Landlords are expected to know their obligations under the RTA. In T.M.T New Zealand Limited Trading as Strata Property Management v Kirk Liam Sweeney and Anne-mette Holmgard Sundahl [2021] NZDC 16182, the landlord had failed to provide an insurance and healthy homes compliance statement. The Court held that: The obligation to provide these documents are fundamental obligations on landlords of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. 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 consequence for the unlawful acts involved by claiming ignorance of the law.
Section 13(4) and Schedule 1A of the RTA provides that breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. The tenant is not seeking exemplary damages. She is seeking compensation for stress.
The tenant said the additional terms in the written agreement provided to her after 02 June 2024 did not reflect what had been agreed. The tenant said this caused her stress.
I find that the failure to provide the written tenancy agreement was stressful for the tenant. A dispute over the terms of the tenancy agreement is significantly less likely to occur if the landlord had complied with section 13 of the RTA.
I find that the landlord breached section 13 and award $500 in general damages for this breach.

Did the landlord provide the tenant with keys to the premises?

The tenancy started on 15 September 2023. The tenant says that the landlord did not provide her with keys to the premises. The tenant says that she asked the landlord for keys on several occasions. The landlord says that the tenant was provided with keys at the start of the tenancy.
On 2 June 2024, the tenant issued a notice stating that the landlord had not provided her with keys or a written tenancy agreement and asking for this to be remedied within 14 days. That same day, the landlord sent the tenant a text message saying he had a new set of keys cut and had left them for her.
I am not satisfied that the landlord failed to provide the tenant with keys to the premises.
This claim is dismissed.

The tenant claims the landlord entered the premises without consent or notice.
The tenant says the landlord would knock on her door unannounced or having only provided short notice.
Section 48 of the RTA relates to the landlord’s right of entry, with subsection one confirming that the landlord “shall not enter the premises” other than that with the consent of the tenant given at the time, or if the Act would otherwise allow it, such as following notice. However, the landlord does not need to obtain consent, or give notice to enter the land comprising the tenancy. This includes walking to the front door.
This claim is dismissed.

Did the landlord fail to maintain the premises?

One of the requirements of section 45 of the RTA is that a landlord must provide and maintain the premises in a reasonable state of repair.
The tenant claims that the landlord has breached his obligations under section 45 of the RTA by failing to fix the sliding door. On 01 June 2024, the tenant sent the landlord a text message saying that the sliding door was “very stiff to open”. The following day, the landlord sent a message to the tenant saying that he had tried to fix the door but needed to contact a joinery specialist.
On 2 July, the tenant sent a text message to the landlord asking when the landlord was going to be fixed. The landlord replied saying that as the door had to be replaced and other work needed to be performed, he would be issuing a 90 day notice to carry out the repairs.
The tenant said she was left with a door that would not open for several months. The landlord said he was not aware that the tenant could not open the door. The landlord accepted the door was stiff but said it could still fully shut and open. He said the tenant did not say that she could not shut the door.
In the tenant’s application to the tribunal of 19 August 2024, she states that the door would not slide to a closed position.
On the basis of probabilities (see paragraphs 3-5 above), I find that the landlord was aware the tenant was having difficulty with the sliding door. However, I also find that the earliest the landlord could be expected to be aware that the door had not closed to a sliding position was when the tenant lodged the application to the Tribunal on 19 August 2024.
I find that there was a failure to maintain the premises.
Section 45(1A) provides that failure to maintain the premises is an unlawful act for which exemplary damages of up to $7200.00 can be awarded. The tenant has not sought exemplary damages. She is seeking compensation.
The rent per week for the premises was $400.00. The tenant first complaint about the issue on 01 June 2024 and the tenancy ended on 15 September 2024. This means the landlord was aware that the tenancy was having difficulty with the door for a period of just over 11 weeks and that the tenant could not close the door for a period of 4 weeks. The breach was such that the use and amenity of what the parties had bargained for was affected. I consider an award of damages for loss of amenity is appropriate. I award $460 as general damages. This is calculated as 5% of the rent for the period of 11 weeks from 01 June 2024 to 18 August and 15% of the rent for the period from 19 August to 15 September 2024.

Is the claim that the notice issued by the landlord retaliatory out of time?

The tenant says the termination notice was retaliatory and seeks compensation. The notice 90 day notice to terminate the tenancy was sent to the tenant on 02 July 2024. As the notice was issued after 5pm the landlord said it would not be deemed issued until the following day, 03 July 2024. It was due to expire on 2 October 2024.
Section 54(1) of the RTA provides that a termination notice may be declared retaliatory and of no effect where within 28 working days after receipt of a notice terminating the tenancy, the tenant applies for an order declaring such on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by the RTA or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
The 28-day period for filing is mandatory. In Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081, the District Court held: In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not be ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of day or two caused by circumstances beyond a tenant’s control, such as documents being lost in the post or computer or internet outage or inaccessibility.
The tenant applied to the Tribunal to have the termination notice declared retaliatory on 18 August 2024. This was 15 days after the time limit of 28 days had expired. This is not a run over of a few days for good reason. As the application is made well outside the time limit, I do not have jurisdiction.
The claim for retaliatory notice is dismissed.

Should the tenant be awarded reimbursement of the filing fee?

While the tenant has had some success with her claim, she has not been wholly or substantially successful. For this reason, I have not made an award for reimbursement of the filing fee.

Tenancy Tribunal case 4930536 — Property damage at 25 Maxwelton Drive, Mairangi Bay, Auckland 0630

At a glance

Tenancy Tribunal case 4930536 — Property damage at 25 Maxwelton Drive, Mairangi Bay, Auckland 0630

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord provide the tenant with keys to the premises?

Did the landlord fail to maintain the premises?

Is the claim that the notice issued by the landlord retaliatory out of time?

Should the tenant be awarded reimbursement of the filing fee?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord provide the tenant with keys to the premises?

Did the landlord fail to maintain the premises?

Is the claim that the notice issued by the landlord retaliatory out of time?

Should the tenant be awarded reimbursement of the filing fee?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord provide the tenant with keys to the premises?

Did the landlord enter the premisses without consent or notice?

Did the landlord fail to maintain the premises?

Is the claim that the notice issued by the landlord retaliatory out of time?

Should the tenant be awarded reimbursement of the filing fee?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord provide the tenant with keys to the premises?

Did the landlord enter the premisses without consent or notice?

Did the landlord fail to maintain the premises?

Is the claim that the notice issued by the landlord retaliatory out of time?

Should the tenant be awarded reimbursement of the filing fee?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions