What was the outcome of Tenancy Tribunal case 5029771?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 5029771?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5029771?

The primary dispute was Mould & damp. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5029771?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11423944-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5029771?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 5029771?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5029771?

The primary dispute was Mould & damp. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5029771?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11423944-Tenancy_Tribunal_Order.pdf.

Unit/Flat Apartment 9, 9 Parliament Street, Auckland Tenancy Tribunal Case 5029771 — Mould & damp

Order

The landlord’s application is dismissed.
The tenant’s cross-application is dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation for chattels (curtains) that were absent at the end of the tenancy.
The tenant has cross-applied for exemplary damages for the landlord requiring more than 2 weeks rent in advance, compensation for over-payment of rent and compensation for legal costs.
The tenant also sought an order suppressing her name.

RELEVANT LEGAL PRINCIPLES

Burden and standard of proof

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Exemplary damages
In the tenant’s claim, the Tribunal must consider a claim for exemplary damages. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary damages and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.
Section 109 of the RTA relates to exemplary damages and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the RTA. THE LANDLORD’S CLAIM(S)
At the hearing, the landlord confirmed he was only seeking compensation for the curtains which were not in place at the end of the tenancy. The claim in relation to the coffee machine was not pursued. Accordingly, I dismiss the claim for compensation in relation to the coffee machine. Compensation for missing chattel: curtains
The landlord seeks compensation of $4,000 for custom silk curtains which were not in place the end of the tenancy. The original application, filed on 9 October 2024, sought $5,000 in compensation however at the hearing the landlord amended the claim to $4,000 given they had negotiated with the new owner of the premises (who had raised the missing curtains after taking possession) and paid the new owner $4,000 on 27 August 2024. A copy of a bank transaction for that amount to “Fresia” on 27 August 2024 was handed up at the hearing.
The landlord produced photos of the curtains which he stated were taken shortly before the tenancy began, although the landlord was unable to give a specific date. The landlord said himself and his ex-wife had carried out renovations on the premises about six years ago, and the curtains had been purchased new then. The landlord did not have a copy of a receipt for the purchase of the curtains.
As to their current value, the landlord says they agreed with the new owner to pay $4,000 after it was discovered the curtains had not been left in the premises. The landlord says, when they agreed to pay the owner $4,000 the most important priority was that the settlement went through. The landlord did not produce any evidence of the likely cost of replacing the curtains with curtains of a similar type.
The tenant confirmed she removed the curtains from the railing some time in 2021. She says she did so after they became mouldy and after speaking to the landlord. The tenant says the landlord confirmed she could take the curtains down. The tenant says she stored the curtains in a box in the apartment’s storage area in the basement. The tenant says when she went to move out in June 2024 the box was there, but the curtains were not. She says she does not know who removed the curtains from the apartment storage area.
The landlord disputes the tenant’s evidence that they discussed the curtains being taken down. The landlord stated he could not recall such a discussion but is adamant he would not have agreed to the curtains being stored in the basement due to their high value and the fact the storage area has a dirt floor. The tenant confirmed she did not discuss where the curtains were to be stored with the landlord.
At the end of the tenancy the tenant must leave in or at the premises all chattels provided by the landlord for the use of the tenant. See section 40(1)(e)(v) of the RTA.
The tenant accepts that she removed the curtains and stored them in the basement. The tenant also accepts that the curtains were not left in or at the premises at the end of the tenancy.
However, the tenant disputes that the curtains were valued at $5,000 (as the application originally stated) or even $4,000 (as was the amended claim at the hearing).
I find the landlord has proven the tenant failed to leave all chattels provided, however the landlord has not discharged the burden of proof in respect of the value of the curtains. Evidence of the payment of $4,000 to the new owner of the premises is not evidence of their current value. Indeed, the landlord confirmed that the concern at that point was about ensuring the sale of the property went through without delay.
The landlord failed to produce any evidence of the estimated cost of replacing the curtains, nor did the landlord’s claim take into account any depreciation in value which items such as curtains accrue over time.
Having failed to prove, to the requisite standard, the value of the chattel which the tenant failed to leave in the premises, the landlord’s claim for compensation is dismissed. THE TENANT’S CLAIMS Exemplary damages for unlawful act: requiring more than two weeks rent in advance
Natalia Kobayashi claims the landlord required more than two weeks rent in advance or rent before the already paid rent expires.
A landlord must not require a tenant to pay more than two weeks in advance or rent before the already paid rent expires. See section 23(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 23(4) and Schedule 1A Residential Tenancies Act 1986.
The landlord required the tenant to pay $1,800 on 26 May 2020, being a week of rent for the week 26 May – 1 June 2020 ($600), and two weeks rent in advance ($1,200). The landlord stated he believed this was compliant with the RTA.
The landlord requested the next payment of rent be paid on 2 June 2020. The tenant initially queried this, stating she believed the next rent should be pay on 16 June 2020, but ultimately complied with the landlord’s request and paid $1,800 on 26 May 2020 and the next rent of $600 on 2 June 2020.
I find the landlord 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. Section 109(3) Residential Tenancies Act 1986.
The landlord stated he believed he was entitled to hold two weeks rent in advance throughout the tenancy. The landlord stated he was never told it was unlawful and that he always acted in good faith. The landlord says if he did it wrong, he is sorry.
Considering the reasons set out at s 109(3) of the RTA, I am not satisfied that the landlord committed the unlawful act intentionally and do not consider it would be just to award exemplary damages. I accept the landlord’s evidence that he genuinely (but incorrectly) believed he was entitled to hold two weeks rent in advance, as well as charge one week’s rent in advance. I also take into consideration my findings on the tenant’s second claim below, that is that the total amount paid in rent by the tenant over the course of the entire tenancy did not exceed the amount owed in rent. Relevant to this claim for exemplary damages, I note that the landlord did not make any gain by his unlawful act.
The tenant’s claim for exemplary damages is dismissed. Compensation for overpayment of rent ($1,200)
Natalia Kobayashi claims the landlord overcharged her in rent. The tenant says she should be compensated $1,200, being two-weeks’ rent which she was overcharged.
The parties agreed the tenancy commenced on 26 May 2020 and ended on 24 June 2024. That equates to 213 weeks. The rent was $600 per week throughout the four-year tenancy.
The tenant’s summary document filed with her application records that for the entirety of the tenancy the tenant paid a total of $127,800.00 in rent. The tenant confirmed the payment of $1,800 made on 26 May 2020 was included in her calculation of the total rent paid over the entirety of the tenancy.
On the tenant’s own evidence, it would seem there was no over-payment in rent, as 213 x $600 = $127,800.00.
The tenant was unable to produce any evidence to demonstrate she had been over-charged in rent. Neither party produced a rental summary in the usual form, although both parties provided copies of their bank account transactions which recorded all payments for the entirety of the tenancy.
The landlord stated there were occasions throughout the tenancy when the tenant either was late in paying rent or fell slightly behind. The landlord was unable to say when he applied the two-weeks’ rent in advance he received on 26 May 2020 but said on his calculations there had been no overpayment in rent.
The tenant disputed that she had ever fallen behind in rent payments.
The burden of proof lies with the tenant. The tenant failed to produce evidence that an overpayment in rent had been made, and on her own evidence, it appears the correct amount of total rent was paid.
The tenant’s claim for compensation for over-payment of rent is dismissed. Suppression
The tenant sought suppression of her name, however, the tenant was not wholly or substantially successful.
I have considered whether I should grant name suppression for the tenant having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue I need to consider is whether suppressing the tenant’s name and identifying details outweigh the interest of the open justice reporting principle.
The application for name suppression is declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the tenant and the public interest, the public interest outweighs the tenant’s interests.
Accordingly, no order is made for suppression. Costs
At the hearing, the tenant also sought costs. No evidence was produced of the costs the tenant incurred, however the tenant confirmed it related to legal advice she sought in the course of these proceedings.
Section 102 of the RTA states that, except in a case to which any of subsections (2), (4), or (5) apply, the Tribunal shall have no power to award costs to or against any party to proceedings before it.
As none of the subsections of s102 referred to are applicable in this case, the Tribunal has no power to award costs.
The tenant’s claim for costs is therefore dismissed.

Tenancy Tribunal case 5029771 — Mould & damp at Unit/Flat Apartment 9, 9 Parliament Street, Auckland

At a glance

Tenancy Tribunal case 5029771 — Mould & damp at Unit/Flat Apartment 9, 9 Parliament Street, Auckland

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL PRINCIPLES

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

RELEVANT LEGAL PRINCIPLES

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions