What was Tenancy Tribunal case 5057634 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 5057634?

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

What type of tenancy dispute was case 5057634?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5057634?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11262878-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5057634 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 5057634?

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

What type of tenancy dispute was case 5057634?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5057634?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11262878-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5057634 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5057634 — net $327.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to Lodge Bond	$300.00	Failure to Lodge Bond
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$327.00
Total payable by Landlord to Tenant	$327.00

Claims and awards in Tenancy Tribunal application 5057634 — net $327.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to Lodge Bond	$300.00	Failure to Lodge Bond
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$327.00
Total payable by Landlord to Tenant	$327.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $327.00 immediately, calculated as shown in table below: DescriptionTenant Exemplary damages: Failure to Lodge Bond$300.00 Filing fee reimbursement $27.00 Total award $327.00 Total payable by Landlord to Tenant $327.00
The tenant’s other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenant claims that the landlord has breached repair and maintenance obligations and failed to lodge the bond. The tenant has also applied for a work order for a replacement pellet fire and an order that a notice to terminate the tenancy is retaliatory and should be set aside.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. They must prove that the other party has breached its obligations and the loss (or consequence) they have suffered because of that breach. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.” (emphasis added)
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
The parties should also be aware that, while this is lay Tribunal, it is an adjudicative body. The Tribunal looks to the application, the evidence and submissions of the parties and makes a binding decision. The Tribunal is not a forum for general complaint and is not a mediation service. Repair & Maintenance
The tenant claims that the landlord did not repair or replace a wood pellet fire at the premises. The tenant wants the problem fixed.
Under section 45(1)(a) - (ca) Residential Tenancies Act 1986 (RTA), the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.
The tenant had made an earlier application regarding a replacement wood pellet fire. That application was resolved at mediation and an agreement reached by the parties. Usually, discussions in mediation are privileged and cannot be disclosed to the Tribunal, unless a party is relying on them as evidence that an issue has been settled. In this case, the discussions and mediator’s report confirm that the pellet fire issue has been resolved. The settlement included the installation of a new 8.1kW heat pump.
The tenant says that it should not have accepted the settlement because it was wrong in law, and the landlord was required to install a new pellet fire. There is legal requirement for the landlord to install a new pellet fire. The issue has been resolved and cannot be re-opened because the tenant has changed its mind about settlement. Further, the tenant did not provide any evidence that the new heat pump is deficient or does not comply with the Healthy Homes Heating standard. All claims relating to the pellet fire are dismissed.
The tenant also raised more general maintenance complaints, but not provide corroborative evidence to establish a breach of the landlord’s obligations. The landlord provided evidence of the repairs and maintenance it has done during the tenancy. Any other claims relating to repair and maintenance are also dismissed. Failure to Lodge the Bond
The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA.
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 RTA.
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).
The tenant says it paid a bond of $740.00 which was not lodged with the Bond Centre. The landlord says that it did not take a bond or rent in advance, but it did accept a security payment of $740.00 for the tenants to have a dog at the premises. When this tenancy started there was no provision in the RTA for separate “pet bonds”.
Regardless of the label applied by the landlord, the $740.00 payment was a form of security or bond and should have been lodged at the Bond Centre. The landlord’s failure to lodge the bond, may have arisen from their lack of understanding of the nature of the payment, but it was an intentional decision. I find that a modest award of exemplary damages is appropriate. The landlord must pay $300. Notice to Terminate
On 1 November 2024, the landlord gave the tenant a notice ending the tenancy on 31 January 2025. The tenant claims the notice is retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
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. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
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?
From 11 February 2021, landlords could not give a 90-day termination notice without a valid reason under s 51(1) or (2) Residential Tenancies Act 1986. 1
In this case the landlord gave notice under s51(2)(f) RTA; that it intends to carryout substantial repairs, and it would not be reasonably practical for the tenants to remain while the work is being done.
The relevant time for determining the landlord’s intention is when the notice is given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
It is an unlawful act for a landlord to give a termination notice to a tenant knowing they are not entitled to give the notice (s 60AA RTA). Exemplary damages may be awarded, up to a maximum of $6,500.00 (s 60AA and Schedule 1A RTA).
The tenant acknowledges that work needs to be done in the bathroom. The tenant claims that work has been required since the start of the tenancy. The 1 This provision has been amended with effect from 30 January 2025 – re-introducing a 90-day notice period for landlords wishing to end a periodic tenancy without a specific reason. landlord said that it has only recently become aware of the extent of the work that might be required, and that a full scoping has not been done because of lack of access. It seems to be common ground that the shower needs to be replaced and structural repairs carried out in the bathroom. The landlord is now aware that some of the kitchen cabinetry (which backs on to the bathroom) is also slumping. 2
The landlord acknowledged that it has intended to carryout earthquake repairs for some time. It is concerned about additional structural damage from the bathroom and it seemed prudent to give notice in November so that work could begin when tradespeople returned to work in the New Year.
The tenant wants to stay in the property while the work is done. However, there would be no bathroom and possibly limited or no kitchen facilities for an indeterminate amount of time. 3 For the reasons set out in Ruakere v McDonald Real Estate Ltd, I am satisfied that the proposed work is “extensive”, and it would not be reasonably practicable for the tenant to remain in the premises. I find that the notice to terminate is valid.
The notice was valid under s51, and the application was made within 28 working days of the notice being given. I must now consider whether the tenant has 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.
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.
The tenant claimed that the notice to terminate was given in response to its first application in relation to the pellet fire. That application was resolved at mediation in early October 2024. The notice to terminate was issued on 1 November 2024. The landlord says that it has intended to carryout earthquake repairs for some time. During discussions about the pellet fire, it became aware that structural damage from the bathroom is worse than it anticipated and is now 2 The landlord says that the full extent of the repairs cannot be determined because the tenant has refused to allow access and has issued a trespass notice. The tenant disputes that it refused access (but has issued a trespass notice) and says the landlord has not given the correct notice. Neither of those claims were the subject of a proper application before me. However, I reminded the parties of their rights and obligations regarding access as set out in s48 RTA. 3 In Ruakere v McDonald Real Estate Ltd [2021] 4318147 - The Tribunal considered whether works to be undertaken were extensive such that the tenancy needed to be terminated. The Tribunal was not supportive of tenant needing to move out for some three weeks and then move back in again following. Termination notice deemed valid. See paras 16 to 19. affecting the kitchen. The landlord claimed that it was seemed prudent to give notice in November so that work could begin when tradespeople returned to work in the New Year.
The tenant claimed that it was unlawful for the landlord to issue a notice to terminate within 12 months of a mediated settlement. There is no such prohibition or rule. However, 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.
The landlord’s explanation for the cause and timing of the notice to terminate is plausible and reasonable. I am not persuaded that the landlord was even partly motivated to end the tenancy because of the exercise of the tenant’s rights. Rather, it appears to have been motivated by a desire to maintain the premises to an acceptable standard.
The notice to terminate the tenancy was not retaliatory and is not set aside. This aspect of the tenant’s claim is dismissed.
As the tenant was partially successful, I have awarded reimbursement of the Tribunal application fee.
The tenant also applied for suppression of its name and identifying details. However, the tenant was not substantially successful and is not entitled to suppression as of right. During the hearing the tenant disclosed details of its personal circumstances and mental health which lead me to the view that the party’s personal interests in this case outweigh the public interest in the open reporting of judicial proceedings. As such, I find that it is appropriate to grant suppression in this case. See s95A RTA.

Tenancy Tribunal case 5057634 — Exemplary damages

At a glance

Tenancy Tribunal case 5057634 — Exemplary damages

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