What was Tenancy Tribunal case 5006604 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 5006604?

Property Damage: $1,300.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5006604?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5006604?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11115094-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5006604 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 5006604?

Property Damage: $1,300.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5006604?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5006604?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11115094-Tribunal_Order_Redacted.pdf.

986 State Highway 2, Minden, RD 2, Tauranga 3172 Tenancy Tribunal Case 5006604 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5006604 — net $1,827.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Retaliatory notice	$1,300.00	Retaliatory notice
Exemplary damages: Unlawful entry	$500.00	Unlawful entry
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,827.00
Total payable by Landlord to Tenant	$1,827.00

Claims and awards in Tenancy Tribunal application 5006604 — net $1,827.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Retaliatory notice	$1,300.00	Retaliatory notice
Exemplary damages: Unlawful entry	$500.00	Unlawful entry
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,827.00
Total payable by Landlord to Tenant	$1,827.00

Order

The Tribunal orders suppression of the tenant’s name and identifying details.
The termination notice dated 17 September 2024, terminating the tenancy of [the tenant] at 986 State Highway 2, Tauranga, on 19 November 2024, is invalid and of no effect.
Darren Sheng Du must pay [the tenant] $1,827.00 immediately, as follows:

Reasons

Both parties attended the hearing. The landlord was assisted by an interpreter.
The tenant has applied for orders setting aside a termination notice as retaliatory, and exemplary damages for retaliatory notice, unlawful entry, and harassment.
The landlord has counterclaimed for possession and electricity outgoings. He also requested legal costs. However, there are limited circumstances where they can be awarded, and none of those grounds apply. Background
The tenancy started on 27 April 2024. The premises consist of a 3-bedroom home. There is a 2-bedroom unit attached to the side of the house. The two premises share power, with a check meter for the unit. There is a separate power check meter in an adjacent shed.
The landlord continued to live in the 2-bedroom unit after the tenancy started, along with another tenant. The tenant says she was unaware that the landlord would be living at the premises. The landlord says he told her that he was living there.
The landlord went to Canada on 17 May and returned on 11 September.
On 13 September, the tenant asked the landlord for a meeting the following day to talk about the tenancy. At the meeting, the tenant asked the landlord to either move out of the unit or reduce her rent. Neither option was acceptable to him.
On 16 September, the tenant sent the landlord a 14-day notice claiming the tenancy agreement did not state the landlord would be living at the premises and that this breached her right to quiet enjoyment. The notice asked him to vacate the property.
On 17 September, the landlord served a 63-day notice on the tenant, requiring her to vacate the premises by 19 November 2024. The reason given was that the owner required the premises within 90 days after the termination date as a principle place of residence (for at least 90 days) for the owner or a member of the owner’s family.
The tenant applied to the Tribunal the same day for an order setting the notice aside.
On or about 13 October, the landlord entered the tenant’s home to turn the Wi-Fi on. She was not home at the time, and he did not give notice of entry. When the tenant returned home, an argument ensued between the parties, which also involved the tenant’s brother. The landlord says he was chased and threatened. The tenant accepts there was yelling, but says the landlord was not threatened. Tenant’s claim Retaliatory notice
Section 54 of the Residential Tenancies Act 1986 provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [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 (s 54(2), (3) and Schedule 1A RTA). 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 s 109(3) RTA).
Intention is proved where the party turns their mind to the unlawful act and deliberately sets out to commit the act. It is unnecessary to prove that the party intended to act unlawfully, it is enough that they intended to commit the act which is in fact unlawful. Ignorance of the law is no defence, as landlords are deemed to know the law.
There are four issues to consider: a. Does the termination notice comply with s 51 RTA? b. If so, was the application made within 28 working days of the notice being served? 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? d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?
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.
Technical compliance? The notice complies with the technical requirements of s 51 RTA, and the tenant has filed the claim within the required time limit.
Was the notice retaliatory? In his written statement, the landlord says: the advertisement for the house referred to the separate unit, he told the tenant he would be living there when she came to view the house, and the tenancy agreement did not prevent him from living in the unit. He says she breached the agreement by asking him to move out, she sought to impose unacceptable conditions, and the 14-day notice she gave him was itself “retaliatory”.
In his oral evidence, the landlord says his relatives became concerned for his safety, and the intention is for his wife and two sons to return from Canada. He provided evidence that his sons are flying back to NZ on 20 December 2024.
The fact that the landlord gave the termination notice the day after the tenant’s 14-day notice provides strong evidence that it was at least partly motivated by the tenant making a complaint about the tenancy.
Findings must be based on the facts at the time the notice was given. Although the landlord has expressed concern about his safety, the events that occurred subsequently are not relevant to the landlord’s motivation at the time notice was given.
The fact that the landlord’s sons are flying to NZ at Christmas time does not necessary support the reasons given in the notice. The landlord did not make an inquiry about the flights until mid-October, and the booking confirmation is dated 11 November. Both those dates are well after the termination notice was given, so there is insufficient evidence that they are causally linked.
On balance, I find that the notice was mostly given because the landlord found the situation with the tenant troublesome, and this was the way he chose to deal with it. Therefore, the notice was retaliatory.
Was the tenant’s complaint frivolous or vexatious? The landlord is correct in saying that the tenant was aware of the 2-bedroom unit, and that she could not insist that the landlord move out. However, I accept her evidence that she did not realise the landlord would be living at the unit. She gave very clear and plausible evidence that, had she known, she would not have taken the tenancy.
Although the tenant would have known she was sharing the property with another tenant, this is qualitatively different from living in close proximity to her landlord. Therefore, I accept that she felt her right to quiet enjoyment was adversely affected. Although the tenant could not ask the landlord to vacate the separate unit, I find that her underlying concern was not frivolous or vexatious. Therefore, the landlord was not justified in giving a retaliatory notice.
Exemplary damages: The maximum penalty available reflects the seriousness of the breach. Usually, for a first incident, the Tribunal considers a starting point of around 30-40% of the maximum. I have reduced this to 20% of the maximum in all the circumstances. I have taken into account the fact that the remedy sought in the notice was one the tenant could not request. I also think the landlord acted out of ignorance of the law rather than malice. The amount awarded is $1,300.00. Entry without consent
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance (s 48(1) and (2) RTA). Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00 (s 48 (4)(a) and Schedule 1A RTA).
The landlord did not give notice or have the tenant’s consent. He says he entered because the other tenant needed to ‘face time’ his wife in Australia to discuss his mother-in-law’s medical condition and treatment, and that this was an emergency.
The tenant was staying with her mother because a power outage at the house. She says she turned all the power switches off before she left. She says her mother’s home was only about 15 minutes away and she would have returned home to turn the power on if asked.
I do not accept the landlord’s claim that there was an emergency. The Wi-Fi had apparently been down for two days, and the short delay in phoning the tenant would have made little difference. There is no evidence of any immediate risk to persons or property.
Quite apart from there being no emergency, the most likely explanation for the entry is that the landlord assumed he was entitled to enter based on his lack of knowledge of the law.
The parties gave differing accounts about the altercation that occurred after the tenant returned home to find the landlord had entered. The landlord say he was chased and threatened. The tenant says there was yelling but there were no threats. As both parties contacted the Police, it is likely that the incident was largely as described by the tenant. While she says this was a natural human reaction to what occurred, getting into a shouting match is not a reasonable way of dealing with issues.
In this instance, I have awarded $500.00, one-third of the maximum, as there are no obvious mitigating factors. I have not taken into account the subsequent argument, as this occurred after the event. Harassment
[The tenant/s]
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises (s 38(2) RTA). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (s 38(3) and Schedule 1A RTA).
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
While I accept that the landlord’s unexpected presence on the property affected the tenant’s right to reasonable peace, comfort, or privacy, this falls well short of harassment, and the claim is not proved.
The tenant says that, since the altercation in October, the landlord has been much more respectful in keeping his distance. That being the case, I have not considered any adjustment to the rent. Landlord’s claim Possession
Because of my finding that termination notice is retaliatory and of no effect, the landlord is not entitled to a possession order. Electricity
Power is in the landlord’s name. The power is shared between the house, the unit, and an adjacent shed. There are check meters on the unit and the shed.
Tenants are liable for outgoings solely attributable to their occupation of the premises (s 39 RTA). Where power is shared, the landlord is responsible for any fixed charges (as they are not solely attributable to the tenant’s occupancy) and the tenant is liable for any variable charges that can be measured (e.g., by a check meter).
The landlord has provided a spreadsheet calculating the tenant’s power use, along with six electricity accounts for period April to October. The spreadsheet calculates the tenant’s usage as $1,808.75. However, the calculation is incorrect as it does not properly account for the fixed charge. Also, the total power usage claimed is for seven months, whereas the landlord has only calculated the unit and shed usage for six months. This has the effect of overstating the tenant’s usage in the main house.
The landlord will need to recalculate the tenant’s power usage based on the following considerations: a. The fixed charge (GST inclusive) is to be deducted. b. The internet charge (GST inclusive), which is included in the rent, is to be deducted. c. The tenant’s usage is to be calculated based on the total usage for the relevant period, less the usage recorded in the unit and shed check meters. d. The landlord should provide the tenant with any evidence of the check meter readings at the start of the tenancy, and the check meter readings at the end of the relevant calculation period. The calculating periods should coincide as close as possible to the dates in the power accounts. e. As the landlord did not take readings while he was away in Canada, it is reasonable to aggregate the power usage for the unit and shed for several months. f. The calculation of the total usage and the tenant’s share must be for the same period of time. The landlord cannot calculate total usage based on a 7-month period, but only deduct the unit and shed usage for a 6-month period.
If there is any further dispute about the calculation of power, one or other party can make a further application to the Tribunal. Filing fee and name suppression
Because the tenant has been largely successful with her claim, I have reimbursed the filing fee.
The tenant requested name suppression. Again, because she has been largely successful, I have ordered that her name be suppressed. J P Smith 22 November 2024

Tenancy Tribunal case 5006604 — Exemplary damages at 986 State Highway 2, Minden, RD 2, Tauranga 3172

At a glance

Tenancy Tribunal case 5006604 — Exemplary damages at 986 State Highway 2, Minden, RD 2, Tauranga 3172

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions