What was Tenancy Tribunal case 5055589 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 5055589?

Compensation: $4,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5055589?

The dispute type was not classified.

Where can I read the official tribunal order for case 5055589?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11253921-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5055589 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 5055589?

Compensation: $4,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5055589?

The dispute type was not classified.

Where can I read the official tribunal order for case 5055589?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11253921-Tribunal_Order_Redacted.pdf.

456A Heads Road, Castlecliff, Whanganui 4501 Tenancy Tribunal Case 5055589 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5055589 — net $2,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation breach of quiet enjoyment	$4,000.00	Compensation breach of quiet enjoyment
Bond refund	$1,100.00	Bond refund
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,000.00
Total payable by Landlord to Tenant	$2,000.00

Claims and awards in Tenancy Tribunal application 5055589 — net $2,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation breach of quiet enjoyment	$4,000.00	Compensation breach of quiet enjoyment
Bond refund	$1,100.00	Bond refund
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,000.00
Total payable by Landlord to Tenant	$2,000.00

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 Bond Centre is to pay the bond of $1,100.00 (6478077-004) to the tenant immediately.
The landlord is to pay the tenant $5,127.00 immediately as detailed in the table below.

Reasons

Both parties attended the hearing.
The tenant’s application was for compensation and exemplary damages for: a. The landlord’s failure to maintain the property. See section 45(1)(b) Residential Tenancies Act 1986 (“RTA”). b. The landlord unlawfully entering the property. See section 48 RTA. c. The landlord’s breach of the tenant’s right to quiet enjoyment. See section 38 RTA. d. Refund of the bond. See section 22B RTA. Standard of proof and evidence
In considering the tenant’s claims, the standard of proof is “on the balance of probabilities”. In other words, the tenant must establish with evidence that her claim is more likely than not. I have considered each of the claims bearing in mind the standard of proof required.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding each claim, I have considered all the evidence presented, including oral testimony. I have weighed this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
Contemporaneous documents such as emails, texts, videos and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
While I have not referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, I have referred in this Order only to the most relevant or important evidence. Any evidence that was not directly relevant to proving the tenant’s claims has been omitted.
It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the necessary evidence. It is not the Tribunal’s responsibility to extract evidence.
Section 85(2) of the Residential Tenancies Act 1986 (RTA) requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined the tenant’s application with this requirement in mind. Failure to maintain
The tenant claimed that the landlord had failed to repair issues with the air- conditioning unit and the rangehood in a timely manner.
The landlord gave evidence that the works were completed within a week and that as the house and the chattels were brand new and under warranty, he required the builder to attend these matters.
The tenant did not provide evidence which could prove that the period of time in which the repairs were completed was longer than seven days.
On the evidence before the Tribunal, the tenant has not proven on the balance of probabilities that the repairs were not carried out in a reasonable timeframe given their non-urgent nature.
The tenant’s claim is dismissed. Unlawful entry
At the hearing the tenant admitted that she had no eye-witness evidence of the tenant entering the house during the tenancy without having given the appropriate notice. She explained that her complaint was about the landlord appearing on the premises and coming to the door unannounced and without notice.
It is therefore more appropriate that these incidents be considered in relation to the landlord’s breach of the tenant’s quiet enjoyment and interference with her reasonable peace, comfort, or privacy.
On the evidence before the Tribunal, the tenant’s claim for the landlord’s unlawful entry is dismissed. Unlawful entry and breach of quiet enjoyment
The tenant explained that this was the most significant breach by the landlord of her rights under the RTA and that it caused her and her three daughters’ significant distress and anxiety.
The tenant gave evidence: a. During the early months of the tenancy, the landlord’s workmen were regularly at the property at all hours and often without notice. The noise they generated and their presence just outside the property breached her and her daughters’ right to reasonable peace and privacy. b. The work involved the building of a deck, the removal and then reconstruction of a fence and the construction of a retaining wall just outside the property’s back door. c. She gave evidence that workmen carried out substantial work on the retaining wall on three separate occasions: late February 2023, 5 to 7 March 2023 and the weekend of 29 March 2023. d. The first workers in late February were on the property for five or six days and did not involve any heavy machinery but were loud enough to significantly disturb the tenant. e. The second works in early March took three days with a very large pile driver, plus a further four days of tidying up. During this period the tenant’s vehicle access was impeded by the heavy machinery. f. She complained by text on 14 April 2023 to the landlord about the ongoing works and the presence of a workman peering into windows. g. The fence above the retaining wall - which had had to be removed for the work to be completed - was replaced over two days around 27 April 2023. h. All this work took place at the property’s back door, in very close proximity to their home. She had no idea when workmen would be coming. Sometimes they started as early as 7 am, often they were there at weekends. Workmen were not on site every day, but were there approximately 60% of the time over a period of 13 weeks. i. The tenant worked from home as a translator for a European company which required her to work from 10 pm to 6 am so that she needed to sleep during the day. The landlord was aware of this. The noise of the works and the presence of workmen and their loud music seriously disturbed her ability to sleep and to do her job, from which she eventually felt compelled to resign. j. She was forced to stay in motels or with family so that she could have some peace and quiet. She estimated that there were three weeks where she could not sleep at home during the day due to the noise made by the landlord’s workmen. k. She complained to the landlord repeatedly by telephone, text and in person about the constant ongoing works and disturbance. l. The landlord credited her with two weeks’ rent in compensation for this disturbance and issues at the start of her tenancy. m. Other tradesmen would turn up at the property to do work, such as installing a television receiver, having been told by the landlord that the tenant would not mind them just turning up. n. The landlord would come to the door for no obvious reason, on one occasion when the tenant was asleep and the door was answered by her young children. The tenant’s children provided written statements of the disturbing impact the landlord’s visit had on them. She advised that he stopped coming to the property unannounced by Christmas 2023 but that he had turned up six to eight times during 2023.
The landlord gave evidence: a. While he originally claimed during the hearing that work was only completed on the retaining wall on one occasion during the weekend in March, he gradually accepted the tenant’s evidence during the hearing that there was work done over the other two periods. He disputed the tenant’s evidence of the length of time that the works took on each occasion. b. He claimed that he had always given notice to the tenant that his workmen would be coming to the property, but accepted that the notice in relation to the third occasion was only given on the day by text as he did not know that the hired machinery would be available until that morning. c. He denied that either he or his workmen ever turned up at the property unannounced. He claimed to have texts to the tenant giving notice but did not file any in evidence. d. He denied the tenant’s daughter’s evidence and claimed that they would have been at school. He denied ever speaking to the tenant’s daughters. Discussion and decision
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 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. See section 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.
The Tribunal accepts the tenant’s version of events in relation to the works as the landlord, having initially denied that there were three separate occasions involved, gradually gave evidence supporting the tenant’s version. The landlord’s version was less than frank and was only revised in the face of the tenant’s evidence.
The Tribunal accepts the tenant’s evidence and that of her children that the landlord came to the property on several occasions without any apparent reason. There are many hours of the day and days in the year when children are not in school.
The evidence is not sufficient for the Tribunal to conclude that the landlord’s behaviour amounted to harassment in that it was intended to trouble, worry or distress the tenant. That may have been the effect but it does not appear to have been the landlord’s intention. In the absence of this intention, the tenant’s claim for exemplary damages must therefore be dismissed. However, the Tribunal is satisfied by the tenant’s evidence that the landlord’s repeated appearances at the tenant’s door without a reasonable excuse or purpose constitute breaches of the tenant’s right to quiet enjoyment.
The Tribunal is satisfied on the evidence before it that the tenant’s right to reasonable peace, comfort and privacy was also seriously disturbed by the landlord’s workmen over a period of ten weeks. The disruption caused by the works and workmen was extensive, intrusive and seriously debilitating to the tenant and her family. The landlord has partially acknowledged this in giving her two weeks’ rent credit. However, the amount conceded is by no means sufficient to compensate the tenant and her family for the very significant impact of his workmen’s intrusions. Quiet enjoyment means the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents.
The Tribunal can order a landlord to pay such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any provision of the RTA. See section 77(2)(n) RTA.
The tenants’ claim for compensation is for general damages for the inconvenience, stress and loss of amenity of living in the property over this period and for the landlord’s appearances at her door without reasonable excuse.
In the Tribunal’s decision 4323927, Adjudicator Kee set out the Tribunal’s reasoned approach succinctly: “The Tribunal’s power to award compensation was increased from $50,000.00 to $100,000.00 by section 50 of the Residential Tenancies Amendment Act 2020, which means the Tribunal’s orders for general damages can range as high as $100,000.00 if such harm is proven. The Tribunal’s general damages awards have historically been low. In Birch v Otautahi Community Housing [2020] NZDC 17667 R E Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative”. In the case before His Honour, the tenant had returned to her unit and found someone had entered without her permission. It transpired contractors had done asbestos repair work in the tenant’s unit and the landlord had mistakenly failed to give the tenant notice of the entry. His Honour found the Tribunal’s award of $200.00 of emotional harm damages for the unlawful entry was “close to being derisory”. He substituted an award of in the sum of $2,000.00 finding “it was a significant intrusion on [the tenant’s] rights”. By reference to Otautahi, I consider the bands that might usefully inform the Tribunal’s decision in this case are: 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.”
In this case, the nature of the breach was cumulatively serious. The tenant has suffered significant inconvenience, frustration, stress, anxiety and hardship over a significant period of time. An award at the start of band C is appropriate and the sum of $4,000.00 is awarded to the tenant, being a sum in addition to the rent already rebated by the landlord. The bond
The tenant gave evidence that: a. She has not accepted liability for any amount claimed by the landlord from the bond and the landlord confirmed receiving a text to that effect. b. She has made enquiries of the Bond Centre which advises that $1,100.00 has been paid out to the landlord under section 22A RTA under which the landlord made a claim to the Bond Centre and the Bond Centre notified the tenant of that claim. As the tenant did not object within ten working days of being notified, the Bond Centre paid the amount claimed to the landlord. c. The Bond Centre confirmed that despite having an email address on the Bond Lodgement form, the Bond Centre accepted the unsupported landlord’s advice of the tenant’s postal address. d. The address was a temporary address of her parents which had been vacated over a year previously and the landlord knew this. e. She never received advice from the Bond Centre of the landlord’s claim.
The landlord gave evidence that: a. He provided the address given by the tenant in the tenant’s pre-tenancy application form dated 26 January 2023. b. He did not know that her family did not live there.
It is unacceptable for a landlord to provide an address in these circumstances to the Bond Centre without being satisfied that it was an address still current and where the tenant can reliably and reasonably be expected to receive a communication. The landlord had telephone and email contact details so that he could easily have obtained confirmation of an address from the tenant.
The purpose of the Bond Centre notifying the tenant of the landlord’s claim is to see if the tenant objects to it. The landlord clearly knew that the tenant objected to the claim and it was incumbent on the landlord to take reasonable steps to provide the tenant’s current address to the Bond Centre or file an application to the Tribunal to recover the costs being claimed.
Given the landlord’s knowledge that the tenant objected to the amounts claimed by the landlord from the bond, it is reasonable for the Tribunal to conclude that the landlord failed to contact the tenant to get an address and instead provided an out of date address with the intention of the tenant not being notified, so that the landlord received payment without opposition.
The bond money is the tenant’s money. The landlord can only access it with the tenant’s consent or by obtaining an order of the Tribunal. The landlord holds the bond money obtained from the Bond Centre to the credit of the tenant.
There is no cross-application filed by the landlord for compensation. Section 22B RTA requires the Tribunal to order payment of the bond to the tenant. The Tribunal therefore orders the Bond Centre to pay the balance of the bond to the tenant and for the landlord to pay the $1,100.00 he obtained from the Bond Centre to the tenant. It is the tenant’s money and there is no evidence nor application before the Tribunal justifying an award of any amount to the landlord.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 5055589 — Tenancy dispute at 456A Heads Road, Castlecliff, Whanganui 4501

At a glance

Tenancy Tribunal case 5055589 — Tenancy dispute at 456A Heads Road, Castlecliff, Whanganui 4501

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions