What was Tenancy Tribunal case 5005748 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5005748?

Compensation: Moving and related cos…: $684.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Refund Of Rent Paid: $1,050.00 awarded to tenant

What type of tenancy dispute was case 5005748?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5005748?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11151623-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5005748 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5005748?

Compensation: Moving and related cos…: $684.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Refund Of Rent Paid: $1,050.00 awarded to tenant

What type of tenancy dispute was case 5005748?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5005748?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11151623-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5005748 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5005748 — net $3,561.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund of rent paid	$1,050.00	Refund of rent paid
Refund of bond	$1,050.00	Refund of bond
Compensation: Moving and related costs	$684.00	Moving and related costs
Exemplary damages: Demanding payment of rent before the expiry of the period for which rent has already been paid	$750.00	Demanding payment of rent before the expiry of the period for which rent has already been paid
Filing fee reimbursement	$27.00	38. Having regard to these factors I will award exemplary damages of $750.00.
Net award	$3,561.00
Total payable by Landlord to Tenant	$3,561.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The tenancy agreement is cancelled with effect from 7 September 2024.
The landlord’s application is dismissed. 4.

Reasons

Background

The tenanted premises is a cottage situated on the landlord’s property in [redacted].
Ms Shelswell advertised the cottage for rent. [The tenant/s] responded to the advert.
Ms Shelswell and [The tenant/s] entered into a written tenancy agreement. The key terms of the agreement are: a. It was a periodic tenancy, due to begin on 7 September 2024. b. The rent was $525.00 per week, payable weekly. c. The bond was $1,050.00. d. The tenant must pay two weeks’ rent in advance at the start of the tenancy.
Ms Shelswell and [The tenant/s] also agreed that [The tenant/s] could move belongings in early, and [The tenant/s] would pay $200.00 storage for this.
On or around 4 September 2024, WINZ made a payment of $2,100.00 to Ms Shelswell on [The tenant/s] behalf (two weeks’ rent in advance plus bond).
Ms Shelswell contacted [The tenant/s] asking her to make her next payment rent payment on 13 September, so that she remains two weeks in advance during the tenancy. [The tenant/s] questioned whether the landlord could require this. [The tenant/s] insisted that she could, having taken advice from “tenancy services and WINZ and Wendy” (referring to Wendy Brown from Northland Realty Ltd). [The tenant/s] and Ms Shelswell exchanged messages about this issue from 4 September to 6 September, when Ms Shelswell asked [The tenant/s] to communicate with Ms Brown about it.
[The tenant/s] sent Ms Brown a message in the evening of 6 September, seeking clarification of the ‘rent in advance’ issue.
Shortly before 9pm, Ms Brown sent [The tenant/s] a message saying that she could not move in the next day as planned because of “an unforeseen situation” that Ms Shelswell was facing.
At that stage, [The tenant/s] had emptied her house and loaded a truck in preparation for moving to [location redacted] the next day. She was understandably distressed by what Ms Brown was telling her that the tenancy could not proceed. She asked for clarification of why Ms Shelswell’s personal circumstances meant that she was unable to start the tenancy tomorrow. Ms Brown’s reply was that it was “just one of those things I’m afraid”.
[The tenant/s] asked Ms Brown whether it was legal to unilaterally change the start date of the tenancy a few hours before it is due to commence. Ms Brown’s astonishing response was “Of course it’s legal. If there is anything illegal going on it would be a 2-week bond being paid”.
On 7 September Ms Brown confirmed to [The tenant/s] that Ms Shelswell had appointed Northland Realty Ltd as her agent.
Ms Brown then sent [The tenant/s] messages requesting that she ‘top up’ the bond to make it the equivalent of four weeks’ rent. This is discussed in more detail below.
On 9 September Ms Brown sent [The tenant/s] a message stating “you are welcome to move in any time from now”.
On 10 September [The tenant/s] sent Ms Brown a message stating: I would like to terminate the tenancy at [Tenancy address suppressed] as of today because of the way things have turned out and not being able to gain access to the property and I would like a full refund of bond and rent please
[The tenant/s] application seeks: a. A declaration that the tenancy is cancelled. b. Refund of the bond. c. Refund of the rent in advance. d. Compensation for move in related costs. e. Exemplary damages for the landlord requesting payment of rent before it was due.
The landlord’s application seeks rent arrears on the grounds that [The tenant/s] message on 10 September was a notice of termination, and [The tenant/s] is liable for rent to the date that is 28 days from that notice.
The hearing took place in [Event location suppressed] on 4 November 2024. Ms Brown and [The tenant/s] attended the hearing.

Is the tenant entitled to cancel the agreement?

The Residential Tenancies Act 1986 (“RTA”) sets out the circumstances in which a tenancy may be terminated by notice or by an order from the Tenancy Tribunal.
However, a tenancy agreement is also a type of contract. The general principles of contract law apply to tenancy agreements.
The Contract & Commercial Law Act 2018 (“CCLA”) states that a party to a contract may terminate the contract if: 1 1 Section 36 & 37 CCLA a. The other party breaches a fundamental term of the contract; or b. The other party repudiates the contract by making it clear that they do not intend to perform their obligations under the contract.
It is a basic principle of contract law that one party to a contract cannot unilaterally change its terms. The terms can only be changed if both parties agree.
Ms Shelswell and [The tenant/s] entered into a binding contract.
Under the terms of that contract, Ms Shelswell was obliged to give vacant possession of the premises at [Tenancy address suppressed].
Ms Shelswell breached that term of the agreement.
Courts and Tribunals can provide “relief” to parties to a contract if something unforeseen occurs that makes it impossible to perform the contract. 2 However there is no evidence to show that the contract was impossible to perform in this instance. Although I accept that Ms Shelswell suffered a health problem on or around 6 September, there is no reason why that should prevent [The tenant/s] from moving into the cottage.
Ms Brown then began insisting that [The tenant/s] pay another $1,050.00 in bond. Although Ms Brown tried to argue that she did not make this requirement a condition of [The tenant/s] continuing with the tenancy, the tenor and content of her messages to [The tenant/s] tell a different story. To quote just a few of them: a. “I have redrafted a correct tenancy agreement and bond lodgment form. This means we will require a further 2 weeks’ rent as bond for me to lodge on your behalf”. b. “Just as the tenancy agreement can be amended so can the bond requirement. Since you are trying to avoid this, there is no way the tenancy agreement will proceed without a full bond.” c. “If you wish to be staunch on this I suggest you start looking for another rental and I will arrange for Sue to refund the bond and rent money”.
My finding is that [The tenant/s] was entitled to cancel the tenancy agreement on the grounds that: a. Ms Shelswell breached an essential term of the contract by not giving vacant possession to [The tenant/s] on the agreed date. 3 b. Ms Brown clearly communicated to [The tenant/s] that the tenancy could not proceed unless she agreed to vary the agreement to provide for a four- 2 Sections 60-69 CCLA (frustrated contacts) 3 VIP Properties Ltd v Cole [2010] NZTT Auckland 4825 week bond. This gave [The tenant/s] the option of not agreeing, and thereby cancelling the agreement. [The tenant/s] took that option.
The effect of cancellation is that: 4 a. Neither party had any further obligation to carry out any obligations under the contract after 10 September. b. The tenancy did not begin. c. The landlord is not entitled to retain any rent.
The cancellation was the consequence of the landlord breaching the contract by failing to grant vacant possession and unlawfully insisting that the tenant pay a bond of four weeks’ rent when the concluded agreement provided for two weeks’ only.
Therefore, the landlord is liable for the costs and expenses incurred by the tenant in respect of moving in to the property. These are costs that the tenant incurred on the basis of the landlord’s contractual promise to grant a tenancy beginning on 7 September. I am satisfied that the following costs are a direct consequence of the landlord’s breach, and are fair and reasonable: a. Moving costs 6 September: $400.00. b. Cost of putting goods into storage: $184.00. c. Retrieval of property from [Tenancy address suppressed]: $100.00. Landlord requiring payment of rent before the expiry of the period for which rent has already been paid
Landlords can require up to two weeks’ rent in advance. 5
Landlords cannot demand payment of rent before the expiry of the period for which rent has already been paid.
[The tenant/s] paid two weeks’ rent in advance. This paid [The tenant/s] rent to 20 September.
As noted above, Ms Shelswell then demanded that [The tenant/s] paid rent immediately upon moving in.
It seems that Ms Shelswell understood that the two weeks’ rent in advance carries through the tenancy and is not used until the last two weeks of the tenancy. This is incorrect. 4 Section 42 CCLA 5 Section 23(1)(a) RTA
It is an unlawful act for a landlord to demand payment of rent before the expiry of the period for which rent has already been paid. 6 Exemplary damages of up to $1,500.00 can apply.
The usual approach of the Tribunal to exemplary damages is to award one-third of the maximum unless there are aggravating or mitigating factors in play. In this instance the aggravating factors are that: a. Ms Shelswell ‘stuck to her guns’ after [The tenant/s] correctly challenged her right to demand rent before the two weeks in advance were used up. Ms Shelswell said that she had taken advice from “tenancy services, WINZ, and Wendy”. I cannot speak to the advice that Ms Shelswell received from WINZ. The advice that she received from Ms Brown was regrettably wrong. If Ms Shelswell had in fact sought advice from Tenancy Services, they almost certainly would not have told her that she could ask for rent before the rent in advance was used up. b. Ms Brown had an opportunity to rescue the situation when [The tenant/s] contacted her on 6 September. Unfortunately, Ms Brown doubled-down on Ms Shelswell’s incorrect view. c. The error was further compounded by Ms Brown’s insistence that she could unilaterally change the commencement date and the amount of the bond.
Having regard to these factors I will award exemplary damages of $750.00. Filing fee, name suppression
[The tenant/s] has been successful in these proceedings. I must award [The tenant/s] the filing fee for the application. 7 Name suppression is granted to the tenant. 8

Claims and awards in Tenancy Tribunal application 5005748 — net $3,561.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund of rent paid	$1,050.00	Refund of rent paid
Refund of bond	$1,050.00	Refund of bond
Compensation: Moving and related costs	$684.00	Moving and related costs
Exemplary damages: Demanding payment of rent before the expiry of the period for which rent has already been paid	$750.00	Demanding payment of rent before the expiry of the period for which rent has already been paid
Filing fee reimbursement	$27.00	38. Having regard to these factors I will award exemplary damages of $750.00.
Net award	$3,561.00
Total payable by Landlord to Tenant	$3,561.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The tenancy agreement is cancelled with effect from 7 September 2024.
The landlord’s application is dismissed. 4.

Reasons

Background

The tenanted premises is a cottage situated on the landlord’s property in [redacted].
Ms Shelswell advertised the cottage for rent. [The tenant/s] responded to the advert.
Ms Shelswell and [The tenant/s] entered into a written tenancy agreement. The key terms of the agreement are: a. It was a periodic tenancy, due to begin on 7 September 2024. b. The rent was $525.00 per week, payable weekly. c. The bond was $1,050.00. d. The tenant must pay two weeks’ rent in advance at the start of the tenancy.
Ms Shelswell and [The tenant/s] also agreed that [The tenant/s] could move belongings in early, and [The tenant/s] would pay $200.00 storage for this.
On or around 4 September 2024, WINZ made a payment of $2,100.00 to Ms Shelswell on [The tenant/s] behalf (two weeks’ rent in advance plus bond).
Ms Shelswell contacted [The tenant/s] asking her to make her next payment rent payment on 13 September, so that she remains two weeks in advance during the tenancy. [The tenant/s] questioned whether the landlord could require this. [The tenant/s] insisted that she could, having taken advice from “tenancy services and WINZ and Wendy” (referring to Wendy Brown from Northland Realty Ltd). [The tenant/s] and Ms Shelswell exchanged messages about this issue from 4 September to 6 September, when Ms Shelswell asked [The tenant/s] to communicate with Ms Brown about it.
[The tenant/s] sent Ms Brown a message in the evening of 6 September, seeking clarification of the ‘rent in advance’ issue.
Shortly before 9pm, Ms Brown sent [The tenant/s] a message saying that she could not move in the next day as planned because of “an unforeseen situation” that Ms Shelswell was facing.
At that stage, [The tenant/s] had emptied her house and loaded a truck in preparation for moving to [location redacted] the next day. She was understandably distressed by what Ms Brown was telling her that the tenancy could not proceed. She asked for clarification of why Ms Shelswell’s personal circumstances meant that she was unable to start the tenancy tomorrow. Ms Brown’s reply was that it was “just one of those things I’m afraid”.
[The tenant/s] asked Ms Brown whether it was legal to unilaterally change the start date of the tenancy a few hours before it is due to commence. Ms Brown’s astonishing response was “Of course it’s legal. If there is anything illegal going on it would be a 2-week bond being paid”.
On 7 September Ms Brown confirmed to [The tenant/s] that Ms Shelswell had appointed Northland Realty Ltd as her agent.
Ms Brown then sent [The tenant/s] messages requesting that she ‘top up’ the bond to make it the equivalent of four weeks’ rent. This is discussed in more detail below.
On 9 September Ms Brown sent [The tenant/s] a message stating “you are welcome to move in any time from now”.
On 10 September [The tenant/s] sent Ms Brown a message stating: I would like to terminate the tenancy at [Tenancy address suppressed] as of today because of the way things have turned out and not being able to gain access to the property and I would like a full refund of bond and rent please
[The tenant/s] application seeks: a. A declaration that the tenancy is cancelled. b. Refund of the bond. c. Refund of the rent in advance. d. Compensation for move in related costs. e. Exemplary damages for the landlord requesting payment of rent before it was due.
The landlord’s application seeks rent arrears on the grounds that [The tenant/s] message on 10 September was a notice of termination, and [The tenant/s] is liable for rent to the date that is 28 days from that notice.
The hearing took place in [Event location suppressed] on 4 November 2024. Ms Brown and [The tenant/s] attended the hearing.

Is the tenant entitled to cancel the agreement?

The Residential Tenancies Act 1986 (“RTA”) sets out the circumstances in which a tenancy may be terminated by notice or by an order from the Tenancy Tribunal.
However, a tenancy agreement is also a type of contract. The general principles of contract law apply to tenancy agreements.
The Contract & Commercial Law Act 2018 (“CCLA”) states that a party to a contract may terminate the contract if: 1 1 Section 36 & 37 CCLA a. The other party breaches a fundamental term of the contract; or b. The other party repudiates the contract by making it clear that they do not intend to perform their obligations under the contract.
It is a basic principle of contract law that one party to a contract cannot unilaterally change its terms. The terms can only be changed if both parties agree.
Ms Shelswell and [The tenant/s] entered into a binding contract.
Under the terms of that contract, Ms Shelswell was obliged to give vacant possession of the premises at [Tenancy address suppressed].
Ms Shelswell breached that term of the agreement.
Courts and Tribunals can provide “relief” to parties to a contract if something unforeseen occurs that makes it impossible to perform the contract. 2 However there is no evidence to show that the contract was impossible to perform in this instance. Although I accept that Ms Shelswell suffered a health problem on or around 6 September, there is no reason why that should prevent [The tenant/s] from moving into the cottage.
Ms Brown then began insisting that [The tenant/s] pay another $1,050.00 in bond. Although Ms Brown tried to argue that she did not make this requirement a condition of [The tenant/s] continuing with the tenancy, the tenor and content of her messages to [The tenant/s] tell a different story. To quote just a few of them: a. “I have redrafted a correct tenancy agreement and bond lodgment form. This means we will require a further 2 weeks’ rent as bond for me to lodge on your behalf”. b. “Just as the tenancy agreement can be amended so can the bond requirement. Since you are trying to avoid this, there is no way the tenancy agreement will proceed without a full bond.” c. “If you wish to be staunch on this I suggest you start looking for another rental and I will arrange for Sue to refund the bond and rent money”.
My finding is that [The tenant/s] was entitled to cancel the tenancy agreement on the grounds that: a. Ms Shelswell breached an essential term of the contract by not giving vacant possession to [The tenant/s] on the agreed date. 3 b. Ms Brown clearly communicated to [The tenant/s] that the tenancy could not proceed unless she agreed to vary the agreement to provide for a four- 2 Sections 60-69 CCLA (frustrated contacts) 3 VIP Properties Ltd v Cole [2010] NZTT Auckland 4825 week bond. This gave [The tenant/s] the option of not agreeing, and thereby cancelling the agreement. [The tenant/s] took that option.
The effect of cancellation is that: 4 a. Neither party had any further obligation to carry out any obligations under the contract after 10 September. b. The tenancy did not begin. c. The landlord is not entitled to retain any rent.
The cancellation was the consequence of the landlord breaching the contract by failing to grant vacant possession and unlawfully insisting that the tenant pay a bond of four weeks’ rent when the concluded agreement provided for two weeks’ only.
Therefore, the landlord is liable for the costs and expenses incurred by the tenant in respect of moving in to the property. These are costs that the tenant incurred on the basis of the landlord’s contractual promise to grant a tenancy beginning on 7 September. I am satisfied that the following costs are a direct consequence of the landlord’s breach, and are fair and reasonable: a. Moving costs 6 September: $400.00. b. Cost of putting goods into storage: $184.00. c. Retrieval of property from [Tenancy address suppressed]: $100.00. Landlord requiring payment of rent before the expiry of the period for which rent has already been paid
Landlords can require up to two weeks’ rent in advance. 5
Landlords cannot demand payment of rent before the expiry of the period for which rent has already been paid.
[The tenant/s] paid two weeks’ rent in advance. This paid [The tenant/s] rent to 20 September.
As noted above, Ms Shelswell then demanded that [The tenant/s] paid rent immediately upon moving in.
It seems that Ms Shelswell understood that the two weeks’ rent in advance carries through the tenancy and is not used until the last two weeks of the tenancy. This is incorrect. 4 Section 42 CCLA 5 Section 23(1)(a) RTA
It is an unlawful act for a landlord to demand payment of rent before the expiry of the period for which rent has already been paid. 6 Exemplary damages of up to $1,500.00 can apply.
The usual approach of the Tribunal to exemplary damages is to award one-third of the maximum unless there are aggravating or mitigating factors in play. In this instance the aggravating factors are that: a. Ms Shelswell ‘stuck to her guns’ after [The tenant/s] correctly challenged her right to demand rent before the two weeks in advance were used up. Ms Shelswell said that she had taken advice from “tenancy services, WINZ, and Wendy”. I cannot speak to the advice that Ms Shelswell received from WINZ. The advice that she received from Ms Brown was regrettably wrong. If Ms Shelswell had in fact sought advice from Tenancy Services, they almost certainly would not have told her that she could ask for rent before the rent in advance was used up. b. Ms Brown had an opportunity to rescue the situation when [The tenant/s] contacted her on 6 September. Unfortunately, Ms Brown doubled-down on Ms Shelswell’s incorrect view. c. The error was further compounded by Ms Brown’s insistence that she could unilaterally change the commencement date and the amount of the bond.
Having regard to these factors I will award exemplary damages of $750.00. Filing fee, name suppression
[The tenant/s] has been successful in these proceedings. I must award [The tenant/s] the filing fee for the application. 7 Name suppression is granted to the tenant. 8

Tenancy Tribunal case 5005748 — Exemplary damages

At a glance

Tenancy Tribunal case 5005748 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Is the tenant entitled to cancel the agreement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the tenant entitled to cancel the agreement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions