Published tribunal order
Tenancy Tribunal case 4967533 — Tenancy dispute at 224 Green Lane West, Epsom, Auckland 1051, abella inn
Decided 26 May 2025 · Published 26 May 2025 · Application 4967533
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
- Abella Limited must pay [The tenant/s] $927.00 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing. This was a continuation after a prior adjournment for the benefit of the landlord.
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time and sought the return of the bond paid.
- The landlord counter claimed for compensation.
- 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.”
- When considering claims, the Tribunal must consider s 85 Residential Tenancies Act 1986 (“RTA”) which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
Does this Tribunal have jurisdiction to consider these applications?
- This address has been the subject of prior Tribunal applications and determinations, from both the landlord and tenants. It trades, in part, as a Motel/provider of short-term accommodation. In this matter, the question of jurisdiction was raised at the previous hearing. That adjourning order noted: [6]. The landlord, late in the hearing, raised a question of jurisdiction. This was curious given its own application and no prior challenge. The landlord and tenant subsequently accepted this Tribunal is the appropriate jurisdiction.
- Given the stance at that time, the issue of jurisdiction appeared settled and this continuation set down. The landlord raised the issue again near the end of this hearing, citing a prior determination of the Tribunal on another matter.
- Each application is determined on its specific facts and evidence. The above reference to a prior order did not address other applicable orders made under this jurisdiction, some being after a landlord application.
- Section 10 RTA requires where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
- The tenant agreement was not available from either party.
- In Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the Residential Tenancies Act 1986 is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act, and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.
- The landlord provided no evidence or submission that establishes this tenancy should be excluded as due to it being a short-term accommodation arrangement per s 5 RTA(k), or via any other exclusion. The landlord has failed to meet the requirement of s 10 RTA.
Was the bond lodged by the landlord?
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord filed to lodge the bond. I find they have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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.
- By a fine margin I have determined the intent required for exemplary damages has not been found here. The inconsistent stances with prior applications, and those determinations, leave open the possibility the landlord was acting under a belief of a short-term arrangement, and commensurate exclusion here. I encourage the landlord to improve the record keeping. Future such repeats may incur exemplary damages.
Did the tenant cause damage to the premises?
- The tenant accepted that there was a paint spill from her car while moving. That resulted in paint spilling on both the premises driveway and on the public roadway.
- The landlord initially sought compensation for both driveway repair and potential cost liability for public road repairs. No basis exists to find any landlord liability for public road damage. Regardless, no such claim has been forthcoming since. The tenancy ended over one year ago.
- The tenant undertook remedial repairs to the driveway by painting over with a more appropriate colour for the driveway. The claimed compensation for the cost of repainting the driveway was based on the purchase of paint. Again, one year later the driveway remains as it was at the time. A recent photo confirmed this.
- There was considerable discussion regarding the driveway and its overall condition. It did not look in reasonable condition with other markings, cracking and colour discolouration visually apparent at the time of the tenancy, and now.
- That said, the repainting attempts by the tenant failed to mask the legacy staining. While the landlord has yet to undertake repairs, the condition of the driveway has been lessened by the tenant careless damage and I make a compensation order of $100.00 for the accelerated depreciation. That will be part payment towards the eventual repair or replacement cost. Filing fee
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. The application also sought the return of the bond and it was only a late counterclaim by the landlord that made such a claim redundant. Suppression
- Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
- The tenant requested suppression in its application. As it has been substantially successful, suppression is ordered. I make no order regarding the landlord’s name or the address. I consider public interest in the multiple tenancies at this address, as well as the landlord’s failure to lodge the bond, outweigh any consideration of the landlord’s interests in any such order.