What was Tenancy Tribunal case 4997670 about?

The tribunal order states: The tenant’s name and identifying details must not be published.

How much money was awarded in case 4997670?

Property Damage: $375.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4997670?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4997670?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11270370-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4997670 about?

The tribunal order states: The tenant’s name and identifying details must not be published.

How much money was awarded in case 4997670?

Property Damage: $375.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4997670?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4997670?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11270370-Tribunal_Order_Redacted.pdf.

Apartment 221, 23 Edwin Street, Mount Eden, Auckland Tenancy Tribunal Case 4997670 — Exemplary damages

Order

Claims and awards in Tenancy Tribunal application 4997670 — net $402.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages – failure to lodge bond within time	$375.00	Exemplary damages – failure to lodge bond within time
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$402.00
Total payable by Landlord to Tenant	$402.00

The tenant’s name and identifying details must not be published.

Forte Property Management Limited must pay [the tenant] $464.50 immediately, calculated as shown in the table below.

The bond breach claim is allowed. All other claims are dismissed. DescriptionTenant Exemplary damages – failure to lodge bond within time$375.00 Filing fee reimbursement$27.00 Total award$402.00

Reasons

The hearing was conducted on Microsoft Teams. The tenant attended the hearing by video link. Barbara Macpherson attended the hearing for the landlord by telephone.

The tenant claims the landlord breached its bond duties, failed to appoint an agent when the property manager was overseas, and failed to provide him with a copy of the tenancy agreement prior to the tenancy beginning.

Did the landlord fail to lodge the bond within 23 working days?

The tenancy began on 7 July 2023 and ended on 13 August 2024.

The tenant paid the bond on 3 July 2023. The landlord should therefore have lodged the bond by 2 August 2023. 1

However, the landlord did not lodge the bond until about 27 October 2023 and only after the tenant emailed the landlord on 1 September 2023 querying whether the landlord had lodged his bond funds because he had received no confirmation of it from the Bond Centre.

Ms Macpherson accepts the bond was not lodged when it should have been. She said that the failure was due to a mistake and was not intentional.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. 2

I find the landlord committed an unlawful act by failing to lodge the bond.

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. 3

I am satisfied on the balance of probabilities that the landlord’s intentionality is proven. The landlord has been operating for several decades. It was well aware of its obligations. At some point in time, the landlord’s principal officer must have turned her mind to the obligation to lodge the bond but nonetheless omitted to lodge the bond. I accept that later the obligation slipped the officer’s mind, but that does not erase the earlier intention. The Tribunal cannot lightly absolve landlords of breaching their bond obligations. Professional landlords are well aware of the consequences that must follow if they omit to perform this basic duty. “I forgot” may go to mitigation but in the absence of compelling circumstances the strong inference of intention is not likely to be rebutted and is not in this case.

The landlord’s intent was at the lower end of the scale towards intentional omission followed by forgetful oversight rather than being cynical avoidance. The effect of the unlawful act on the tenant was modest. The tenant may not even have brought the claim if he had not been spurred on by other issues he had with the tenancy. It is in the tenant’s interests to award exemplary 1 A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received: s 19(1) of the Residential Tenancies Act 1986 (RTA). 2 RTA, s 19(2). 3 RTA, s 109(3). damages. It is in the public interest to award exemplary damages to deter this landlord and other landlords from similar defaults. If the Tribunal did not penalise landlords for non-compliance, there would be less disincentive for landlords to comply.

It is just to award exemplary damages.

I accept Ms Macpherson’s submission that this landlord has never been before the Tribunal for a bond claim. It is a “first offence” against many years of good practice.

It is appropriate to order 25 percent of the maximum in the circumstances. Failing to instruct an agent and to provide a copy of the tenancy agreement

The tenant’s claim for exemplary damages for the landlord allegedly failing to instruct an agent while out of New Zealand and to provide a copy of the tenancy agreement prior to the tenancy beginning are statute-barred.

Under s 109(2) of the Residential Tenancies Act 1986, exemplary damages cannot be applied for “12 months after the date of commission of the unlawful act” except for bond and record keeping breaches. The remaining claims are moot.

These claims are dismissed. Filing fee

The landlord must reimburse the landlord for the filing fee.

Claims and awards in Tenancy Tribunal application 4997670 — net $402.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages – failure to lodge bond within time	$375.00	Exemplary damages – failure to lodge bond within time
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$402.00
Total payable by Landlord to Tenant	$402.00

Order

The tenant’s name and identifying details must not be published.
Forte Property Management Limited must pay [the tenant] $464.50 immediately, calculated as shown in the table below.
The bond breach claim is allowed. All other claims are dismissed. DescriptionTenant Exemplary damages – failure to lodge bond within time$375.00 Filing fee reimbursement$27.00 Total award$402.00

Reasons

The hearing was conducted on Microsoft Teams. The tenant attended the hearing by video link. Barbara Macpherson attended the hearing for the landlord by telephone.
The tenant claims the landlord breached its bond duties, failed to appoint an agent when the property manager was overseas, and failed to provide him with a copy of the tenancy agreement prior to the tenancy beginning.

Did the landlord fail to lodge the bond within 23 working days?

The tenancy began on 7 July 2023 and ended on 13 August 2024.
The tenant paid the bond on 3 July 2023. The landlord should therefore have lodged the bond by 2 August 2023. 1
However, the landlord did not lodge the bond until about 27 October 2023 and only after the tenant emailed the landlord on 1 September 2023 querying whether the landlord had lodged his bond funds because he had received no confirmation of it from the Bond Centre.
Ms Macpherson accepts the bond was not lodged when it should have been. She said that the failure was due to a mistake and was not intentional.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. 2
I find the landlord committed an unlawful act by failing to lodge the bond.
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. 3
I am satisfied on the balance of probabilities that the landlord’s intentionality is proven. The landlord has been operating for several decades. It was well aware of its obligations. At some point in time, the landlord’s principal officer must have turned her mind to the obligation to lodge the bond but nonetheless omitted to lodge the bond. I accept that later the obligation slipped the officer’s mind, but that does not erase the earlier intention. The Tribunal cannot lightly absolve landlords of breaching their bond obligations. Professional landlords are well aware of the consequences that must follow if they omit to perform this basic duty. “I forgot” may go to mitigation but in the absence of compelling circumstances the strong inference of intention is not likely to be rebutted and is not in this case.
The landlord’s intent was at the lower end of the scale towards intentional omission followed by forgetful oversight rather than being cynical avoidance. The effect of the unlawful act on the tenant was modest. The tenant may not even have brought the claim if he had not been spurred on by other issues he had with the tenancy. It is in the tenant’s interests to award exemplary 1 A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received: s 19(1) of the Residential Tenancies Act 1986 (RTA). 2 RTA, s 19(2). 3 RTA, s 109(3). damages. It is in the public interest to award exemplary damages to deter this landlord and other landlords from similar defaults. If the Tribunal did not penalise landlords for non-compliance, there would be less disincentive for landlords to comply.
It is just to award exemplary damages.
I accept Ms Macpherson’s submission that this landlord has never been before the Tribunal for a bond claim. It is a “first offence” against many years of good practice.
It is appropriate to order 25 percent of the maximum in the circumstances. Failing to instruct an agent and to provide a copy of the tenancy agreement
The tenant’s claim for exemplary damages for the landlord allegedly failing to instruct an agent while out of New Zealand and to provide a copy of the tenancy agreement prior to the tenancy beginning are statute-barred.
Under s 109(2) of the Residential Tenancies Act 1986, exemplary damages cannot be applied for “12 months after the date of commission of the unlawful act” except for bond and record keeping breaches. The remaining claims are moot.
These claims are dismissed. Filing fee
The landlord must reimburse the landlord for the filing fee.

Tenancy Tribunal case 4997670 — Exemplary damages at Apartment 221, 23 Edwin Street, Mount Eden, Auckland

At a glance

Tenancy Tribunal case 4997670 — Exemplary damages at Apartment 221, 23 Edwin Street, Mount Eden, Auckland

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to lodge the bond within 23 working days?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to lodge the bond within 23 working days?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions