What was Tenancy Tribunal case 4950537 about?

The tribunal order states: Yiming Shao must pay [The applicant/s] $8,147.50 immediately, calculated as

How much money was awarded in case 4950537?

Compensation: Bond For New Property: $400.00 awarded to tenant; Compensation: Moving Costs: $747.50 awarded to tenant; Compensation: rent in advance for ne…: $2,000.00 awarded to tenant; Filing Fee: $5,000.00 awarded to tenant

What type of tenancy dispute was case 4950537?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4950537?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10998929-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4950537 about?

The tribunal order states: Yiming Shao must pay [The applicant/s] $8,147.50 immediately, calculated as

How much money was awarded in case 4950537?

Compensation: Bond For New Property: $400.00 awarded to tenant; Compensation: Moving Costs: $747.50 awarded to tenant; Compensation: rent in advance for ne…: $2,000.00 awarded to tenant; Filing Fee: $5,000.00 awarded to tenant

What type of tenancy dispute was case 4950537?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4950537?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10998929-Tribunal_Order_Redacted.pdf.

Unit/Flat 1, 18 Inverary Avenue, Epsom, Auckland 1023 Tenancy Tribunal Case 4950537 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4950537 — net $8,147.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: moving costs	$747.50	moving costs
Compensation: bond for new property	$400.00	bond for new property
Compensation: rent in advance for new property	$2,000.00	rent in advance for new property
Exemplary damages: unlawful termination Filing fee	$5,000.00	unlawful termination Filing fee
Net award	$8,147.50
Total payable by Landlord to Tenant	$8,147.50

Claims and awards in Tenancy Tribunal application 4950537 — net $8,147.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: moving costs	$747.50	moving costs
Compensation: bond for new property	$400.00	bond for new property
Compensation: rent in advance for new property	$2,000.00	rent in advance for new property
Exemplary damages: unlawful termination Filing fee	$5,000.00	unlawful termination Filing fee
Net award	$8,147.50
Total payable by Landlord to Tenant	$8,147.50

Order

Yiming Shao must pay [The applicant/s] $8,147.50 immediately, calculated as shown in the table below.

Reasons

[The applicant/s] attended the hearing on behalf of the tenant. Yiming Shao is the owner and landlord of the tenancy address. Ms Shao did not attend the hearing personally. Sharon Bradley and Robin Phang from the Rent Shop Limited attended the hearing as agent for Yiming Shao.
The tenant has applied for compensation and exemplary damages. The tenant claims the landlord committed an unlawful act by terminating the tenancy without grounds.
As the applicant, the tenant must prove their claim to the civil law standard of proof, on the balance of probabilities. Background
The tenancy began on 14 May 2022 and was a fixed-term tenancy until 14 May 2023. Thereafter, it became a periodic tenancy.
The tenancy address is a duplex. There are two separate addresses within the same building. These are 1/18 and 2/18 Inverary Avenue, Epsom, Auckland 1023. The two addresses are separated by a wall that runs through the middle of the building. Ms Shao owns both properties and rents them both out.
On 17 July 2023, Ms Shao emailed The Rent Shop Ltd the following email: “Good morning Robin I am planning to renovate the 1/18 Inverary Ave and need the tenant to move out, please inform the tenant. Thank you Shao Yiming”
On 18 July 2023, The Rent Shop Ltd emailed the tenant giving them 90 days’ notice to terminate the tenancy pursuant to section 51(2)(f) of the Residential Tenancies Act 1986 (RTA). This section states: 51Termination by notice ... (2)A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if – .... (f) extensive alterations, refurbishments, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and - (i)it would not be reasonably practicable to the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date; or ...
The tenant was prepared to accommodate the landlord and asked if his family could remain in the property while renovations occurred. The Rent Shop Ltd made enquiries with Ms Shao about this and confirmed their instructions to the tenant that extensive refurbishments were planned and it was not possible for the tenant to remain in occupation of the premises. The Rent Shop Ltd told the tenant that Ms Shao had advised them that the roof was to be repaired and interior layout changed.
The tenant vacated the premises on 20 October 2023.
The Rent Shop Ltd stopped managing the property from this date until 5 December 2023. During this time, Ms Shao managed the property herself.
The tenant says that he returned to the property on 2 November 2023 to say goodbye to his old neighbour at 2/18 Inverary Ave, Epsom and drop them a box of chocolates. He says that the neighbour disclosed to him that no renovations had been completed and new people had moved into the property.
No extensive alterations, refurbishments, repairs or redevelopment of the premises occurred within 90 days after the termination date or any time thereafter. The only work undertaken was the hanging of two doors in a doorframe in the lounge to create an additional room.
The property was re-tenanted from at least 21 November 2023. It remained tenanted at the date of the hearing.

Did the landlord terminate the tenancy without grounds?

Under section 60AA RTA, a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
The tenant claims that Ms Shao never had any intention of completing extensive alterations, refurbishments, repairs or redevelopment of the premises. He says that the landlord gave notice to terminate under section 51(2)(f) RTA knowing they were not entitled to do so.
Ms Shao did not attend the hearing, although she was residing in Hamilton, New Zealand at the time. Ms Shao sent The Rent Shop Limited an email one day before the hearing at 5:38pm. This email was submitted to the Tribunal at the hearing. In the email, Ms Shao states that she planned to renovate the property with the possibility of either selling or occupying it herself. Ms Shao states that whilst she had not made a final decision on whether to sell or occupy the property, “the renovation was already scheduled.” Ms Shao states that in November 2023 she encountered “an urgent situation” and had to return to China. As a result, she decided to rent the property out to her family and scaled down the renovations to only involve the addition of an extra room.
Ms Shao was not present at the hearing and was unable to elaborate or be cross- examined on the points raised in her email.
I do not accept the explanation provided by Ms Shao in her email or find it to be credible. On the balance of probabilities, I am convinced that Ms Shao instructed The Rent Shop Ltd to terminate the tenancy under section 55(2)(f) RTA in circumstances where she had no intention to carry out extensive alterations, refurbishments, repairs or redevelopment of the premises. My reasons for this are as follows: a. The property was renovated shortly before this tenancy began. Photographs submitted show the interior is painted white throughout. The kitchen and bathroom appear modern with new amenities. The fact that the property was recently renovated casts doubt on any submission that further, extensive renovations were needed or planned. b. The only alteration to the property that occurred after this tenancy ended was the hanging of two doors on a doorframe in the lounge. This created an additional room. The work is minor and would have been quickly and easily undertaken. c. Ms Shao did not submit any evidence of having taken any steps to organise refurbishments or renovations. Ms Shao is clear in her email that although she was uncertain whether she was going to sell or occupy the property, “the renovation was already scheduled.” If this was the case, there would have been some supporting documentation such as communication with tradespeople or quotes. No supporting evidence was submitted. d. No detail or supporting evidence was submitted about the “urgent situation” Ms Shao had to attend to in China. e. Ms Shao told The Rent Shop Ltd that the refurbishments and renovations included the roof. The work planned was apparently so extensive that the tenant could not remain in the property. This property is one of two and is a duplex. There is only one roof across both properties. Ms Shao owns both properties and rents them both out. There was another tenant in the neighbouring property at the time. The Rent Shop Limited confirmed that the neighbouring tenant was not given notice to terminate. If the tenant in this case was not able to continue living in the property because of extensive refurbishments to the roof, then it is more likely than not, that the tenant in the other property would not have been able to continue their tenancy either. The fact that only one tenant was given notice to terminate, casts doubt on whether extensive work to the roof was planned. f. No evidence was submitted that work has been undertaken to the roof since this tenancy ended. g. I accept the tenant’s evidence that he returned to the property on 2 November 2023 and had a discussion with the neighbour who advised him that the property had new tenants and no renovations had occurred. The tenant’s daughter attended the hearing and confirmed the same. Ms Bradley from The Rent Shop Ltd queried this, stating that the tenancy agreement signed by Ms Shao after this tenancy ended had a start date of 21 November 2023. However, as Ms Bradley was at pains to emphasise during the hearing, The Rent Shop Ltd had nothing to do with this property between 20 October 2023 – 5 December 2023. The Rent Shop Ltd cannot give evidence about what occurred during this time such as when the new tenants moved in. Ms Shao could have given that evidence, but Ms Shao did not attend the hearing. The new tenants were Ms Shao’s family. It would not have been unusual for Ms Shao to have allowed family members to reside in the property for a short period of time before signing a formal tenancy agreement. On the balance of probabilities, I accept the tenant’s evidence that new tenants had moved into the property by 2 November 2023. h. Having accepted the tenant’s evidence that new tenants were living in the property by 2 November 2023, I note that this is only a period of two weeks after the tenancy ended. This indicates that that there was never any intention to carry out extensive renovations or refurbishments. i. The Rent Shop Ltd confirmed that the new tenants pay $710.00 per week in rent. The Rent Shop Ltd also confirmed that a new tenancy is to begin shortly and the rent will increase to $810.00 per week. The tenant in this case paid $670.00 per week before his tenancy ended. On the balance of probabilities, I am convinced that the real reason the landlord ended this tenancy was because they realised that they could charge more rent for the property if it had an extra room. Adding an extra room was quick and easy to achieve, the landlord simply needed to instal two new doors in the existing doorframe in the lounge. By doing this, the landlord has increased their revenue for this property by an extra $150.00 per week in a relatively short period of time. Had the tenant’s tenancy continued, it is unlikely that the landlord would have been able to increase the rent from $670.00 to $810.00 per week within the same amount of time, having regard to the law around rent increases and market rent in the RTA.
I am satisfied on the balance of probabilities that Ms Shao never intended to carry out extensive alterations, refurbishments, repairs or redevelopment of the premises. It follows that the tenant has proven their claim that Ms Shao instructed the Rent Shop Ltd to give notice to terminate the tenancy knowing that she was not entitled under the RTA to do so. Compensation
As a result of Ms Shao terminating the tenancy without grounds, the tenant had to find a new tenancy and incurred costs in doing this. He sought compensation as follows: a. $3,000.00 for the bond he was required to pay for new tenancy b. $2,000.00 rent in advance he was required to pay for the new tenancy c. $747.50 moving costs
The tenant provided an invoice from the moving company and a copy of his new tenancy agreement. Both documents confirmed the amounts sought above.
The tenant received a full reimbursement for his bond at 1/18 Inverary Ave, Epsom. This was $2,600.00. Therefore, I have limited the amount of compensation sought for payment of the bond at the new tenancy address to $400.00, which represents the difference.
The tenant’s other claims for compensation are proven and granted in full. Exemplary damages
I find that Ms Shao committed an unlawful act by instructing The Rent Shop Ltd to terminate the tenancy knowing she was not entitled to do so. Exemplary damages may be awarded for this up to a maximum of $6,500.00. See section 60AA and Schedule 1A RTA 1986.
Section 109 of the RTA relates to exemplary damages and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
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.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal1 that: Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
I find that Ms Shao acted intentionally for the same reasons detailed at paragraphs 18(a) – (i) above. I am satisfied on the balance of probabilities that Ms Shao never had any intention to carry out extensive alterations, refurbishments, repairs or redevelopment of the premises. It follows that she purposefully instructed The Rent Shop Ltd to give notice terminating the tenancy under section 51(2)(f) RTA knowing that she was not permitted to do so. On the balance of probabilities, I find that Ms Shao turned her mind to the unlawful act and deliberately set about to commit it. She did not make an error or act negligently.
Having regard to the factors set out in section 109 of the RTA, I make the following observations: a. I consider that the real reason Ms Shao terminated this tenancy was to add an extra room and secure a higher rent for the property. b. I consider that Ms Shao acted intentionally and with full knowledge that she was not permitted to end the tenancy. c. The unlawful act had a big impact on the tenant. He is 72 years old and has a dog. He gave evidence that the notice to terminate was unexpected and it was stressful to have to move after being in the property for a relatively short 1 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92 period of time. He said it was extremely difficult for him and his family to find another rental property in the area that met their budget and allowed a dog. The tenant has lived in Epsom for 30 years and did not want to leave the community. Fortunately, the tenant has secured a new tenancy, but at a higher rate, which has caused some financial strain. d. The tenant had to come up with $2,000.00 rent in advance within 90 days of receiving the termination notice. e. There is a public interest in ensuring that tenancies are not terminated on unsubstantiated grounds. f. I am not aware of any other instances in which Ms Shao has unlawfully terminated a tenancy.
Considering these factors, I find it just to make an award of $5,000.00 in exemplary damages. Filing fee
Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4950537 — Exemplary damages at Unit/Flat 1, 18 Inverary Avenue, Epsom, Auckland 1023

At a glance

Tenancy Tribunal case 4950537 — Exemplary damages at Unit/Flat 1, 18 Inverary Avenue, Epsom, Auckland 1023

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord terminate the tenancy without grounds?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord terminate the tenancy without grounds?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions