What was Tenancy Tribunal case 4960933 about?

The tribunal order states: Phos Property Partners must pay Christopher Ben Field $2,027.00 immediately,

How much money was awarded in case 4960933?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4960933?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4960933?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10876218-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4960933 about?

The tribunal order states: Phos Property Partners must pay Christopher Ben Field $2,027.00 immediately,

How much money was awarded in case 4960933?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4960933?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4960933?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10876218-Tenancy_Tribunal_Order.pdf.

Unit/Flat 30, 1 Adelaide Road, Mount Cook, Wellington Tenancy Tribunal Case 4960933 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4960933 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Retaliatory notice	$2,000.00	Retaliatory notice
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Total payable by Landlord to Tenant	$2,027.00

Claims and awards in Tenancy Tribunal application 4960933 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Retaliatory notice	$2,000.00	Retaliatory notice
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Total payable by Landlord to Tenant	$2,027.00

Order

Phos Property Partners must pay Christopher Ben Field $2,027.00 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. Daniel Green and Michael Yeung represented the landlord.
On 1 August 2024 the landlord gave the tenant a notice ending the tenancy on 29 August 2024. The tenant claims the notice is retaliatory.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

Was there a legitimate reason for the notice?

On 1 August 2024 landlord had arranged for a contractor to attend the building and inspect rooms bathroom ventilation. This was carried out on a door by door basis. Adequate notice had not been served as the work had initially been planned for 4 July 2024 but that was delayed until 8 July. The inspections did not complete that day, hence the final visit on 1 August 2024. The landlord knocked on the door and requested access. There was some discussion between him and the tenant. Mr Yeung wrote (in part): “I agree that Chris and I had a discussion regarding his night shift work and that he would like to have 24-hour notice before allowing us into his room and that he prefers to have any sort of maintenance to be carried out after 3pm.” And further on: “We approach[ed] Chris’ room, we knocked on his door and heard no response. I then spoke to him through the door asking if we could perform the inspection, it should take a couple seconds. He responded and said that we have disturbed his sleep and that I have failed to provide him with 24-hour notice regarding the inspection. For this, I apologised through the door. He then responded and requested that we give him 5 minutes. We left to continue the inspection throughout upstairs. I then receive a call around 2 minutes after approaching Chris’ room (the exact moment was 11:03am). He is now requesting that we now give him 15 minutes because he needs more time. We allowed it and continued our inspection despite the harassment I have received regarding the failed 24-hour notice via the phone call.”
It was apparently agreed that entry would be granted in some 30 minutes time. The landlord and contractor continued to attend other rooms and returned. There was no response from the tenant inside and the landlords attempted entry using a master code. The code did not work. Mr Leung went to the management office to retrieve the master key to that room. The key to that room was missing.
Mr Leung returned to the room and access had been granted to the contractor and Mr Green. The contractor attended to the task at hand while some discussion between the landlords and the tenant took place. Mr Leung stated: “During the inspection, Chris was not happy of course that he did not receive any notice about the inspection and that we have just disturbed his sleep. He then proceeded to say “something is wrong with you” assuming that I may be mentally challenged somehow. He says that he will be taking me to court for that because it is not the first time, I have failed to give notice and, he will be bringing up the “threatening email I’ve sent to him.” This is the email I have sent to everyone in the building because there has been many locks that is broken. Chris has attached it to his application. I apologised again that I did not give him any notice and that I knew I should have given him 24-hour notice. Then I asked him how he managed to change the PIN on his door. He immediately responded with “these locks are cheap, look” then wiggles the lock on his door. I asked Chris again “yes I see but how did you manage to change the PIN to the lock.” He proceeded to describe to me how the lock is weak and that it is not his fault. Still no answer as to how he managed to change the PIN for the room. (Changing the PIN is only achievable if tenants have the master code which is not available to the tenants because of security safety. Depending on how Chris managed to have this master PIN removed this has put our security systems at risk and the safety of other tenants at risk which we cannot accept. He may also consider telling other tenants to do this).”
The thrust of that discussion is disputed between the parties.
Once the task was finished the landlords and contractor left.
The two landlords present that day, and at this hearing, advised that they shared lunch afterwards and discussed the situation. Mr Leung later sought advice from Tenancy Services. A series of such calls were recorded and made available to the Tribunal. Calls to the lock supplier were also made and recorded.
Later that same day Mr Green instructed Mr Leung to issue the tenant a 28 day notice to terminate. Such a notice requires no reason (see section 66U(1)(d) RTA). Mr Leung recounted the reason given to him was due to the tenant changing the door lock in breach of s 46 RTA. A follow up letter was sent to the tenant some three weeks later “requesting that you provide us with the information on how you were able to change the lock as this is sensitive knowledge for the Duckworth Lewis. Mr Green confirmed his sole motivation in issuing that instruction for termination on 1 August 2024 was the belief that the tenant had managed to change the door codes inappropriately. Mr Yeung wrote in his submission: “The main question is, how did Chris manage to change the PIN to the lock? The only way for the PIN to be changed is when the master PIN is used or ultimately, he had gone ahead to purchase an exact lock without notifying the property manager or landlord. The reason we had initially evicted Chris with ‘no reason’ is for the safety of the rest of the tenants in the building as he would be able to go around changing the PINs for the other rooms or even entering the rooms without their consent.”
It was curious, given the landlords safety concerns regarding other tenants based on the concluded compromise of door security from 1 August 2024, why immediate termination was not served 1 .
There is an inconsistency between the claimed security threat because of the purported actions of the tenant, and the subsequent serving of a 28-day notice that left the tenant resident during this notice period.
I acknowledge the submission of the landlord that the extended notice was in recognition of this long tenancy but the observation regarding the inconsistency stands.

Was the notice to terminate retaliatory?

Section 54 of the Residential Tenancies Act 1986 (“RTA”) provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: Section 66U RTA states: The landlord of a boarding house may terminate a boarding house tenancy— (a) immediately, if the tenant has— (i) caused, or threatened to cause, serious damage to the premises; or (ii) endangered, or threatened to endanger, people or property; or (iii) caused, or threatened to cause, serious disruption to other tenants. [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00 (see s 54(2), (3) and Schedule 1A RTA).
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness, giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.
The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.
Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
I must consider the history of tenant complaints regarding inappropriate or insufficient notice of entry provided by the landlord. The tenant had previously advised that he worked nights and his mornings should not be disturbed. The attempted entry of 1 August 2024 followed previous episodes of insufficient notice. While the landlord is entitled to access, if requested and granted, the tenant’s prior insistence on his need for quiet and privacy during the mornings, as well as appropriate notice, should have been better considered.
The accusation of Mr Yeung that the tenant had accessed the door code and used it to enter the management office and retrieve the door key for his room is not evidentially supported. As already stated, if that belief was so certain a more immediate termination and redress of the compromised security situation would have been appropriate and expected.
Given that inconsistency, I must also consider whether the tenant’s assertion of his rights regarding access by the landlord was, at least in part, motivation for the landlord to issue the notice to terminate.
There are four issues to consider: a. Does the termination notice comply with s 66U RTA? The answer is yes. b. If so, was the application made within 28 working days of the notice being served? The answer is yes. c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord? There is a clear history of prior inadequate notice of entry by the landlord. There was also a prior request to the landlord to accommodate the night shift work of the tenant when making access requests. The tenant raised immediately with the landlords his frustration (“Chris was not happy of course that he did not receive any notice about the inspection and that we have just disturbed his sleep). The issue raised by the tenant again on 1 August 2024 was valid. The claim of lock tampering and risk to others in the building as sole justification for the notice to termination (belated notified to the tenant some three weeks later) is not proven. The answer to this question is yes. d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious? The answer is no.
Given the answer to those four questions I conclude the notice to terminate was retaliatory and therefore an unlawful act.
The tenant decided to end the tenancy and has left. He has no desire to return.
As I have determined that the landlord committed an unlawful act I must decide if it is appropriate to award exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
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) RTA.
The impact on the tenant is obvious – a long, nine-year tenancy has ended. The tenant has to find somewhere else to live. He has been accused of a serious compromise of building security. The impact has not been insignificant.
Mr Yeung is new to the role. This lack of experience and knowledge is apparent in his recorded conversations with Tenancy Services. Mr Green advised he has limited experience with boarding house tenancies. Both are encouraged to upskill. Management failures here notwithstanding, the building appears to be under active management and proactive maintenance. This is a significant boarding house of some 40 rooms. There is considerable public interest in ensuring boarding house tenants are afforded the protections as intended in Part 2A RTA.
I do consider the tenant responses to the landlord’s questions at the time might have been more informative. In the absence of this, the landlord quickly concluded a view regarding security compromises that is not supported evidentially.
I order $2000.00 for exemplary damages in this instance, balancing the impact on the tenant and the landlord’s understanding at that time. A first unlawful act such as here typically might attract an award of near 1/3 of the maximum award. I adopted that approach and reduced it slightly to reflect some obfuscation by the tenant, albeit that may have been as much out of frustration with the actions of the landlord before, on and after 1 August 2024 regarding access. Filing fee
Because Christopher Ben Field has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4960933 — Exemplary damages at Unit/Flat 30, 1 Adelaide Road, Mount Cook, Wellington

At a glance

Tenancy Tribunal case 4960933 — Exemplary damages at Unit/Flat 30, 1 Adelaide Road, Mount Cook, Wellington

At a glance

Award balance

Claims & awards

Order

Reasons

Was there a legitimate reason for the notice?

Was the notice to terminate retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was there a legitimate reason for the notice?

Was the notice to terminate retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions