Published tribunal order
Tenancy Tribunal case 5028203 — Exemplary damages at Unit/Flat 197, 197 Crinan Street, Appleby, Invercargill 9812
Decided 6 Dec 2024 · Published 6 Dec 2024 · Application 5028203
- Exemplary damages
Order
- Esteem Realty-Esteem Property Management Limited As Agent For Owner must pay [The tenant/s] $1,497.00 immediately.
Reasons
- The tenant attended this remote hearing on 6 December 2024.
- The landlord did not attend by Teams video link. Telephone calls were made to the landlord on the number provided at the allocated hearing time. There was no response to the calls. The tenant provided another number for the landlord. Calls to that number went to voicemail. The Tribunal may deal with matters in the absence of a party where satisfied that notice of the hearing has been given. I am satisfied that notice has been given.
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time. The tenant paid a bond of $720.00 on 19 February 2024. The Boarding House tenancy ended on 20 July 2024. The tenant has asked for release of her bond. The landlord has not released the bond.
- 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.
- I find they have committed an unlawful act.
- 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.
- A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
- The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
- However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
- The landlord is ordered to pay exemplary damages of $750.00. I take into account the time that has passed since the bond was paid to the landlord and the time that has passed since the tenancy ended in setting the amount. Both factors are aggravating factors.
- As [The tenant/s] has wholly succeeded with the claim I must order the landlord to reimburse the filing fee.