What was Tenancy Tribunal case 4955134 about?

The tribunal order states: Grovefield Joal Limited Shubina Zhang must pay [The tenant/s] $527.00

How much money was awarded in case 4955134?

Compensation: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4955134?

The dispute type was not classified.

Where can I read the official tribunal order for case 4955134?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11186161-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4955134 about?

The tribunal order states: Grovefield Joal Limited Shubina Zhang must pay [The tenant/s] $527.00

How much money was awarded in case 4955134?

Compensation: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4955134?

The dispute type was not classified.

Where can I read the official tribunal order for case 4955134?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11186161-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4955134 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4955134 — net $527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$500.00	Compensation
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$527.00
Total payable by Landlord to Tenant	$527.00

Both parties attended the hearing, with the landlord being represented by Ms Zhang and Mr Wood.

This tenancy began on 5 May 2017 and came to an end on 7 August 2024. The rent is $540.00 per week and a bond of $1,840.00 was paid. The bond has since been refunded to the tenants. The tenants’ application

The tenants claim the landlord has breached their privacy and therefore their quiet enjoyment, by posting online photographs taken during routine property inspections when advertising for new tenants. The tenants seek compensation and exemplary damages for this breach. The photographs were on four websites. They were posted on 16 July 2024. The tenants discovered the advertisements on 28 July 2024 and emailed the landlord, who removed them the following day, on 29 July 2024.

The tenants’ evidence is that they agreed to the landlord showing prospective tenants through the house. However, they did not consent to photographs taken during routine inspections being posted online. They understood these photographs were only to be used for internal property inspection reports. The tenants provided detailed evidence at the hearing concerning the events, their communication with the landlord via emails and texts, and the effect of the online posting of these photographs on their emotional wellbeing.

The tenants described feeling upset and humiliated that their belongings and possessions were posted online for public viewing, and were concerned how people they knew would regard them, since some of the images showed the house was messy. At the time the photos were taken, they had visitors staying. They felt invaded knowing that others in their community were viewing these images. Their believed their reputation had been harmed as a result. They were deeply concerned after receiving correspondence from their child’s school, in response to the landlord’s advertisement, asking about their new address. The landlord’s response

The landlord accepts that it did not obtain the tenants’ permission to use the photographs. Ms Zhang explained the circumstances, from the time the tenants gave notice to end the tenancy, stating that the owners wanted the property to be advertised quickly. She used photographs from the inspection report but carefully selected them to ensure the tenants were not identified. The photographs were used to provide information about the size and essential features of the room. Since the landlord was not managing the premises at the start of the tenancy, it did not have the photographs taken before the tenants moved in, when the premises was empty. Ms Zhang explained that as soon as she became aware that the tenants were upset, she removed the photographs, apologised to the tenants, and offered them a gift card, which they rejected.

Mr Wood submits, on behalf of the landlord, that Principle 10 of the Privacy Act 2020 applied, justifying the use of photographs taken for the purpose of a routine inspection for another purpose, being advertising of the premises for rent. The landlord had reasonable grounds on which to do so. Those grounds are that the landlord did not take any photographs at the start of the tenancy.

Mr Wood refers to section 113 of the Privacy Act 2020, stating that to claim compensation, the tenants needed to show serious harm, and in this case, this had not been shown. The images were removed the following day, at 9am, less than 10 hours from the time the tenant emailed the landlord. From 16 to 28 July 2024, the tenants were unaware of it, so they could not have suffered any harm in that period. The tenants were affected by it for 10 hours. The landlord made attempts to meet with the tenants, who seemed more focused on compensation rather than working with the landlord to resolve the issues. Legal framework

In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish, with evidence, that their claim is “more likely than not.”

The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must take into account the following factors when deciding to award compensation: • The nature of the breach • The duration of the breach; and • The effect of the breach on the party.

Exemplary damages are different. They are designed to punish and deter, more like a fine. Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA. The Tribunal is one of the few jurisdictions that can award exemplary damages. It does not do so lightly.

Section 38(1) of the RTA states that the tenant is entitled to have “quiet enjoyment” of the premises without interruption by the landlord or anyone acting on the landlord’s behalf. This provision imposes a limited duty on the landlord not to do anything to interrupt the tenant’s use of the premises. 1 Section 38(2) of the RTA further provides that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.

The right to ‘reasonable peace, comfort, or privacy’ is often described as the right to quiet enjoyment. In this context “quiet” means peaceful, not merely free from noise, and “enjoyment” means the right to full use and benefit of the tenancy property. 2 This right is commonly used in reference to the uninterrupted use of the premises, and can include the right not to have the tenancy significantly impaired by the actions of the landlord and/or the landlord’s agents.

Where this obligation has been breached in circumstances that amount to harassment, this is an unlawful act for which exemplary damages may be awarded. 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." 3

Under Section 38(2) there is reference to the privacy of the tenant and the landlord’s responsibility to ensure that this is not interfered with. In the case of Thompson-Huntley v KJP Investments Limited 4 the Tribunal noted that the right to privacy under the RTA does not directly correspond to the right to privacy under the Privacy Act. The purpose of the section is to ensure tenants are free from unwarranted or undue intrusion or disturbance in their private lives while living at the tenancy premises.

In Tenant v Todd 5 , while noting the observations in Thompson-Huntley v KJP Investments Limited (above), stated that the Privacy Act 2020 can sometimes provide useful practical guidance in considering claims involving personal information under section 38(2) of the RTA. Analysis

The issue is whether the landlord, by posting online photographs of the premises showing the tenant’s belongings, has been in breach of its obligations under section 38(2) of the RTA. Having considered the photographic, documentary, and oral evidence, and noting the submissions of both parties, I find that there has been a breach of the tenants’ quiet enjoyment. My reasons for this finding are set out below.

In this case the landlord used photographs obtained for a specific purpose, for regular inspection reports, for another purpose, without the tenants’ consent. The 1 ‘Residential Tenancies: The Law and Practice’ 4 th edition, D. Grinlinton (2012) 2 Residential Tenancy Law in New Zealand S. Benson (2018) 3 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. 4 [2021] NZTT Waitakere 4260498 5 [2022] NZTT 4319171 landlord accepts that it did not obtain the tenants’ permission to use the property inspection photographs for the purpose of advertising.

I find this is a breach by the landlord, since it has interfered with the tenants’ right to privacy in their use of the premises. It is clear from the tenants’ photographic evidence that their personal belongings were shown in the online advertising. By posting photographs that clearly showed the tenant’s personal effects, there has been undue intrusion into the private life of the tenants.

This is consistent with the finding by the Tribunal in Tenant v Todd (above), that a photograph of the tenant’s premises that includes their possessions is personal information about that person. It is not necessary that the information identifies the individual for the information to be personal information. The Tribunal further noted that the unauthorised publication, by posting the photographs online, was an interference with the tenant’s reasonable privacy, in breach of Information Privacy Principle 11 of the Privacy Act 2020. The Tribunal also considered there had been an interference with the tenant’s reasonable privacy in terms of section 38(2) of the RTA. The Tribunal’s reasoning is set out below:

I now consider whether there is an interference with the tenant’s reasonable privacy “in the sense” of s 38(2). I understand the photographs were published when the tenancy was ongoing, so that the publication can relate to the tenant’s “use of the premises”. Given the lack of actual or presumed authorisation of the disclosure from the tenant, I consider that the landlord’s publishing of photographs depicting the premises and the tenants’ property during the tenancy was an interference “with the reasonable peace, comfort, or privacy of the tenant in the use of the premises” in breach of s 38(2).

I do not accept the submission that the landlord can rely on the Privacy Act 2020 and Principle 10 to justify the posting of these photographs. The landlord has not demonstrated, with sufficient evidence, that there were any reasonable grounds for it to do so. The landlord’s claim that they did not have access to photographs taken prior to the tenants moving in (since they were not managing the premises at the start of the tenancy) is not a reasonable ground for posting these photographs. If such photographs had been taken, they could have been obtained from the owner or the previous property management company. If such photographs were not available, the landlord could have explored other options in consultation with the tenants.

In any event, the key provisions in this case are those under the RTA. Focusing on the requirements under the RTA, it is clear from the tenants’ evidence that they found the online posting of the photographs distressing. They have described the effect for them, including how embarrassed and upset they felt. The photographs remained online for nearly 14 days. I do not accept the submission that the effect of the harm is only to be measured from the time the tenants discovered it. The effect of the 14 day timeframe that the photographs were posted was deeply felt by the tenants. To the landlord’s credit, the photographs were removed promptly once they were alerted.

In Maguire v Brazier Property Management Ltd 6 the Tribunal found that the tenant’s quiet enjoyment had been breached by the landlord taking excessive photographs, including photographs of the tenant’s personal effects, during a property inspection. In Trevor Hurley Real Estate v Campen 7 , the Tribunal held that taking photographs of the tenant’s personal effects, without the tenant’s permission, had resulted in a breach of the tenant’s quiet enjoyment.

In the present case, while the landlord had the tenants’ permission to take photographs for a routine inspection, this permission did not extend to the online posting of these photographs. The photographs that were posted online clearly showed the tenants’ personal effects.

For these reasons, I find there has been a breach of the tenants’ quiet enjoyment under the RTA.

However, I do not find that the disclosure of the photographs online amounts to harassment, since the landlord’s purpose was not malicious, and its conduct does not show a pattern of behaviour targeted at the tenants to trouble, worry, or cause distress. The landlord has expressed regret for its actions, and has tried to offer some compensation to the tenants. Compensation and exemplary damages

The tenants’ claim for compensation is in the nature of general damages. Awards of compensation in the Tribunal are generally modest. I do not accept the landlord’s submission that the tenants need to establish serious harm under section 113 of the Privacy Act 2020 to be compensated, since that is not the test under the RTA.

Having found that there has been a breach of the tenants’ quiet enjoyment under the RTA, they are entitled to be compensated. Taking into account the nature of the breach, the duration of the breach, and its effect on the tenants, I consider the amount of $500.00 to be reasonable compensation.

However, I do not find that an award of exemplary damages is warranted. This is because exemplary damages can only be awarded in situations where the breach amounts to harassment. This has not been shown in this case. Furthermore, I find that while the landlord was in breach of a legal obligation, they lacked the requisite intent. 6 TT Christchurch 07/3760/CH, 11 December 2007 7 [2014] NZTT Timaru 204 Filing fee and name suppression

The landlord is to pay the tenants’ filing fee, since the tenants have been successful with their application.

The tenants have applied for name suppression, which is granted, in view of the tenants being successful. Accordingly, the Tribunal orders suppression of the tenants’ names and identifying details.

Reasons

Claims and awards in Tenancy Tribunal application 4955134 — net $527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$500.00	Compensation
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$527.00
Total payable by Landlord to Tenant	$527.00

Both parties attended the hearing, with the landlord being represented by Ms Zhang and Mr Wood.

For these reasons, I find there has been a breach of the tenants’ quiet enjoyment under the RTA.

The landlord is to pay the tenants’ filing fee, since the tenants have been successful with their application.

The tenants have applied for name suppression, which is granted, in view of the tenants being successful. Accordingly, the Tribunal orders suppression of the tenants’ names and identifying details.

Tenancy Tribunal case 4955134 — Tenancy dispute

At a glance

Tenancy Tribunal case 4955134 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions