What was Tenancy Tribunal case 5027749 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 5027749?

Compensation: Rent Difference: $5,200.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant

What type of tenancy dispute was case 5027749?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5027749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11477451-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5027749 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 5027749?

Compensation: Rent Difference: $5,200.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant

What type of tenancy dispute was case 5027749?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5027749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11477451-Tribunal_Order_Redacted.pdf.

Unit/Flat 205, 70 Anzac Avenue, Auckland Central, Tenancy Tribunal Case 5027749 — Property damage

Claims and awards in Tenancy Tribunal application 5027749 — net $8,227.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: rent difference	$5,200.00	rent difference
General damages: unlawful termination	$3,000.00	General damages: unlawful termination
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$8,227.00
Total payable by Landlord to Tenant	$8,227.00

Claims and awards in Tenancy Tribunal application 5027749 — net $8,227.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: rent difference	$5,200.00	rent difference
General damages: unlawful termination	$3,000.00	General damages: unlawful termination
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$8,227.00
Total payable by Landlord to Tenant	$8,227.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details. The landlord also prefers suppression but the grounds are not established (see. S.95A RTA)
must pay immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. The landlord was represented by Mr Han. Background
The parties entered into a tenancy agreement for a 1 year fixed term from 25 October 2024 to 24 October 2025.
The agreement identifies the landlord as being agent for the owner but does not disclose who the owner is. The agreement was signed on 6 October 2024 by the tenant and on 7 October 2024 by the property manager Mr Zhang.
The rent payable under the agreement was $490.00 per week. The tenant made an initial payment of $2,940.00, being 4 weeks’ rent as bond and 2 weeks’ rent in advance.
The tenant gave notice of termination under her existing tenancy effective 25 October 2024 and made arrangements for her relocation with a moving company and utilities.
Later on 7 October 2024, the tenant was phoned by Mr Zhang to say that the tenancy could not proceed as the landlord had changed his mind. After that, Mr Han called the tenant to apologise. The tenant’s rent in advance and bond payment were refunded to her on 9 October 2024.
Mr Han showed the tenant an alternative property which was not suitable to her. The tenant then found another rental and on 9 October 2024 signed an agreement for a term from 23 October 2024 to 23 October 2025 at a rent of $590.00 per week. The tenant was able to reschedule her moving arrangements and utility connections without additional cost.
On 7 October 2024 the tenant brought this application seeking compensation and exemplary damages for the loss, inconvenience and stress caused by the landlord’s withdrawal from the tenancy.
The tenant also raises a concern that the landlord’s withdrawal was motivated by discrimination against her. Analysis Compensation
It is not disputed that the landlord breached the agreement. The tenant is entitled to compensation for any loss caused to her as a result of that breach.
I accept the tenant’s evidence that having taken this tenancy to better accommodate her mother who was moving in with her and having given notice to end her previous tenancy, the landlord’s breach put the tenant in the highly pressured situation of having to urgently find other accommodation.
Her new tenancy is for 12 months at a rent of $590.00 per week. I am satisfied that in the circumstances the tenant took reasonable steps to mitigate her loss as required by s.49 RTA.
Under the agreement between these parties, the tenant was entitled to rent the premises for 12 months at $490.00 per week. The additional cost to the tenant of $100.00 per week is a direct result of the landlord’s breach and should be compensated.
The tenant claims compensation for the amount of additional bond paid under the new tenancy. The tenant will be entitled to have that bond refunded to her at the end of the tenancy if there are no valid claims against it by her landlord. It therefore does not represent a loss (except for loss of use of the additional $400.00 bond for a year) and that compensation claim is declined.
The tenant says that as a result of the stress the landlord’s actions put her under and existing anxiety issues, she needed to seek medical advice and claims compensation for the cost of the consultation. While I accept that the circumstances were highly stressful for the tenant, my view is that the award of general damages adequate to compensate for those and associated issues.
The tenant also claims printing and stationary costs. Those are costs relating to these proceedings which are not generally awarded (see s.102 RTA). Exemplary Damages
Section 60AA provides that: “A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.”
Here, the landlord terminated the fixed tenancy without grounds to do so under the RTA. The landlord thereby committed an unlawful act for which exemplary damages of up to $6,500.00 may be awarded.
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.
Here, the landlords decision not to honour the agreement it had entered into through Mr Zhang was intentional.
The landlord says that it had what it described as a casual agency with the owner, under which it would find and vet suitable tenants to present to the owner for consideration, but on the basis that the owner would him/her/itself enter into and manage the tenancy.
Mr Han’s evidence is that in error, Mr Zhang exceeded the authority the landlord had from the owner, by putting a tenancy in place without the owner’s knowledge or approval. As a result the owner refused to honour the agreement. Mr Han says disciplinary measures were taken against Mr Zhang who is no longer in the landlord’s employ.
The purpose of exemplary damages is not to compensate the party against whom an unlawful act has been committed but to punish the party committing the unlawful act.
“[Exemplary] damages are exemplary because they are meant to teach an example to the guilty [party] and others. They are punitive because they are meant to punish. They are like a fine, though they go to the [party] who has been the victim of the conduct.” 1
Here, the landlord really had little option but to withdraw from the agreement. It could not honour the tenancy without the owner’s support. The landlord’s fundamental fault was in entering into the agreement with the tenant, without the necessary authority from the owner.
Upon becoming aware that Mr Zhang had done so, Mr Han immediately ensured the tenant was advised, apologised, arranged for return of the payments made by the tenant, offered to assist with finding another rental and offered (albeit inadequate) compensation. As noted, disciplinary steps were taken and Mr Zhang is no longer in the landlord’s employ
While that does not at all reduce the consequences of the landlord’s breach for the tenant, I do accept the landlord’s position that a serious mistake was made which the landlord has tried to do what it can to rectify. That being so, I am not persuaded that exemplary damages would be the just way to recognise the severity of the breach for the tenant. In my view that would more appropriately be achieved through an award of general damages. General Damages
General damages are damages for pain or suffering or emotional distress 2
This case has similarities to the situation before the Tribunal in [Tenant] v Ezy Rentals NZ Limited 3 where, for different reasons than given here, the landlord had also repudiated a tenancy agreement before the tenancy had begun.
The adjudicator in Ezy Rentals noted the approach outlined in Palmer v Housing New Zealand (No 2) 4 , that in assessing general damages the Tribunal must take into account: 1 Auckland City Council v Blundell [1986] 1 NZLR 732 at 704 2 Birch v Otautahi Community Housing [2020] NZDC 17667 3 [Tenant] v Ezy Rentals NZ Limited [2022] NZTT 4323927 a. the nature of the breach; b. the duration of the breach c. the effect of the breach on the other party.
After considering Birch v Otautahi Community Housing (above), the adjudicator outlined what he saw as some “bands” that might be useful to consider in assessing whether and what awards of exemplary damages might be appropriate. He considered appropriate bands might be: “a.At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $2,000.00; b. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $2,000.00 to $3,000.00; c.At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of over $3,000.00.”
Applying those considerations, an award of general damages of $4,500.00 was made.
As it was in Ezi Rentals, the landlord’s breach here, “.... was a complete failure to provide what was contracted for. The effect on the tenant was serious. The tenant suffered inconvenience, frustration, disappointment, worry, stress, anxiety, hardship, humiliation, loss of dignity and insecurity.”
A significant difference is that in Ezi Rentals, because the tenant was unable to find an alternative property quickly, the consequence of the landlord’s breach was that she and her family remained homeless for six months, sleeping in a car for half of that time. The effect of the landlord’s breach on this tenant, while hugely impactful at the time, was less profound and ongoing.
Taking those factors into account I find that a $3,000.00 award of general damages would appropriately recognise the emotional harm, stress and suffering caused to the tenant by the landlord’s fundamental breach, mitigated to a degree by her having been able to secure an alternate property reasonably quickly. Discrimination
Under s.12 RTA, “...discrimination against any person in respect of the grant, continuance, extension, variation, termination, or renewal of a tenancy agreement in contravention of the Human Rights Act 1993...” is an unlawful act. 4 Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993
Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
The tenant says that after the landlord withdrew from the agreement, on 10 October 2024 she received a notice from Trade Me, where she had first come across the listing for the premises, saying “Hi.....the property at 205/ 70 City Centre has been rented.”
Understandably, she interpreted that notification as showing that after rejecting her tenancy a few days earlier, the landlord had granted another tenancy, leading her to wonder if she had been discriminated against.
Mr Han’s evidence is that the landlord did not grant another tenancy and no longer has these premises on its books. He suggests that the Trade Me notification was likely to have been the standard message issued in response to the landlord’s cancelation of the listing.
The tenant says that when she found the rental listing, she also noticed a listing for sale of the property. She enquired with Mr Zheng who told her it would not affect her tenancy, but just that the landlord might change.
A quick check of Trade Me shows that the property was listed for sale on 24 October 2024, soon after the landlord ended the tenancy, on terms including vacant possession.
While no direct evidence has been provided, it does seem to me likely that the owner was not prepared to accept the tenancy because it was for a 12 month fixed term, when the owner wanted to sell the premises and be able to offer vacant possession, rather than for reasons particular to the tenant herself.
I do not find any discrimination on the landlord’s (or owner’s) part proved.
Because the tenant has been substantially successful with her claim, I reimburse the filing fee.

Tenancy Tribunal case 5027749 — Property damage at Unit/Flat 205, 70 Anzac Avenue, Auckland Central,

At a glance

Tenancy Tribunal case 5027749 — Property damage at Unit/Flat 205, 70 Anzac Avenue, Auckland Central,

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