Published tribunal order
Tenancy Tribunal case 4971973 — Exemplary damages at Unit/Flat 605, 5 Howe Street, Freemans Bay, Auckland
Decided 4 Dec 2024 · Published 4 Dec 2024 · Application 4971973
- Exemplary damages
Order
- Me & Cn Investment Properties Limited Christian Newman must pay Soletanche Bachy International (Nz) Limited $2,947.00 immediately.
Reasons
- Both parties attended the hearing.
- The tenant has applied for refund of the bond. The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services.
- Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
- I note that the tenant’s application to Tenancy Services was made almost four months ago. I consider that ample time for the landlord to file a counterclaim which they have not done. For this reason, I do not consider it appropriate to offer the landlord an adjournment to do so.
- Soletanche Bachy International (Nz) Limited claims the landlord has not lodged the bond with the Bond Centre within the required time.
- 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 accepts that on receipt of the bond in October 2020, they failed to lodge the bond with the Bond Centre. The landlord claims this was an oversight and was not intentional.
- I find the landlord has committed an unlawful act and that as a matter of law the failure was intentional.
- 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.
- Because a bond is money that belongs to the tenant until or unless a landlord is successful in making a claim against it, it is appropriate that the money is protected against any circumstances that could jeopardise the security of this money. There is a high public interest in landlords having systems in place that ensure they comply with their lawful obligations. I am not aware of the landlord having breached their obligation in this way before. However I note that the breach was made over four years ago and hasn’t been rectified in that time. I consider an award of $400.00 to be appropriate in the circumstances.
- Because Soletanche Bachy International (Nz) Limited has wholly succeeded with the claim I must reimburse the filing fee.