What was Tenancy Tribunal case 5076648 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 5076648?

Property Damage: $5,000.00 awarded to landlord

What type of tenancy dispute was case 5076648?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5076648?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11398079-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5076648 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 5076648?

Property Damage: $5,000.00 awarded to landlord

What type of tenancy dispute was case 5076648?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5076648?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11398079-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5076648 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5076648. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Sandra Lorincz is successful 3. The application by Stacy Kennedy for refund of rent, compensation, and exemplary damages	$5,000.00		Sandra Lorincz is successful 3. The application by Stacy Kennedy for refund of rent, compensation, and exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
The application by the landlord against Stacy Kennedy and Sandra Lorincz is successful
The application by Stacy Kennedy for refund of rent, compensation, and exemplary damages of $5,000.00 is dismissed.

Reasons

S Kennedy and the landlords attended the hearing.
On 24/10/2024 S Kennedy filed an application claiming a refund of two weeks rent, compensation and exemplary damages of $5,000.00 for unlawful entry.
Although S Lorincz was not included as a party to the application, by signed letter dated 4/11/2024 she was happy to have S Kennedy represent her regarding “all things relevant” to the tenancy.
On 19/11/2024 the landlord filed a cross application against both tenants, which in effect was a response to S Kennedy’s claims.
The tenancy agreement was for a fixed term from 28/9/2024 to 28/9/2025 at a rental of $575.00 per week.
The tenants paid $2,300.00 being two weeks in advance and a bond on 6/9/2024.
The landlord lodged the bond of $1,150.00 with the Bond Centre on 10/9/2024.
On 11/9/2024 S Kennedy verbally advised the landlord that the tenants did not want the tenancy due to personal reasons and did not intend to move in.
Following correspondence between the parties about the requirements for ending a fixed term tenancy the landlord advertised the premises on Trade Me at a cost of $239.00, which the tenants “reluctantly” agreed to pay.
The premises were re-let as at 26/10/2024.
On 6/10/2024 the landlord arranged a refund of the full bond of $1,150.00 to the tenants.

Are the tenants entitled to a refund of rent?

As they did not move into the premises and gave three weeks prior notice the tenant seeks a refund of the two weeks rent paid in advance.
The tenant relied on the end date of the tenancy supplied by the landlord in the bond refund form.
In addition, the tenant was unhappy the landlord would not give him a key to the premises so he could store his possessions.
On the other hand, the landlord suggested that instead of refunding the bond they could have used it for the further two weeks rent owed by the tenants until the premises were re-let but they had sympathy for the tenants’ circumstances.
The landlord submitted that the end date provided in the bond form was a mistake and had been used to allow the bond to be refunded to the tenant as soon as possible.
In addition, the landlord suggested, and the tenant confirmed that the agreed advertising fee was never paid by the tenant.
Further, the landlord disputed that the tenant had ever asked for the keys to the premises.
Under section 135(1) where one party to a tenancy agreement pays to the other party under a mistake of law or fact relating to the agreement that party can apply to the Tribunal to recover the amount paid.
Subsection 135(2) provides that the Tribunal may decline to order repayment if satisfied that the person who received the money did so in good faith and has altered their position in reliance on the validity of the payment and in all the circumstances it would be unfair to order the repayment.
I find the tenant is not entitled to a refund of rent of $1,150.00 and there was no overpayment of rent made by the tenant.
The evidence supports that the tenancy was not assigned for four weeks, during which time the tenant was liable for the rent.
The fact that the landlord only took two weeks rent was to the advantage of the tenant, as was the case with the advertising fee.
For the avoidance of doubt, had the landlord claimed for the extra two weeks and the advertising fee I would have made an order pursuant to sections 40(1)(a) and 44A for the tenant to pay 1,389.00.

The tenant submitted that the landlord entered the premises without notice or consent over several days to show around prospective tenants.
In response, the landlord agreed that they viewed the premises on 29/9/2024 with a prospective tenant after giving the tenant written notice on 27/9/2024.
At the time of the viewing the landlord confirmed that the tenant had not taken possession of the premises and no response had been received to their notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has not committed an unlawful act.
Although technically the landlord did not have the consent of the tenant to show prospective tenants the premises, I am satisfied that they gave the tenant the required notice, had not received any response and the tenant was not occupying the premises.
It is an unlawful act for tenants to fail, without reasonable excuse to allow the landlord to enter premises in certain circumstances, which includes showing premises to prospective tenants.
Moreover, I consider the landlord was attempting to mitigate the loss of the tenant by pro-actively taking steps to re-let the premises as soon as possible.
Section 49 provides that where any party to a tenancy agreement breaches any of the provisions of the agreement or Act the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage on breach of contract.
In this case the tenant had breached the contract by failing to take possession of the premises subject to a fixed term tenancy they had agreed to.
The landlord took steps to re-let the premises as soon as possible, incurring a loss of rent and advertising fee totalling $1,389.00.
No filing fee is awarded to the tenant because they were unsuccessful or the landlord because they made no actual claim only a response.
Suppression has been granted to the landlord pursuant to section 95A because had they filed a substantive claim they would have succeeded, and I consider it appropriate in these circumstances to allow suppression.

Claims and awards in Tenancy Tribunal application 5076648. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Sandra Lorincz is successful 3. The application by Stacy Kennedy for refund of rent, compensation, and exemplary damages	$5,000.00		Sandra Lorincz is successful 3. The application by Stacy Kennedy for refund of rent, compensation, and exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
The application by the landlord against Stacy Kennedy and Sandra Lorincz is successful
The application by Stacy Kennedy for refund of rent, compensation, and exemplary damages of $5,000.00 is dismissed.

Reasons

S Kennedy and the landlords attended the hearing.
On 24/10/2024 S Kennedy filed an application claiming a refund of two weeks rent, compensation and exemplary damages of $5,000.00 for unlawful entry.
Although S Lorincz was not included as a party to the application, by signed letter dated 4/11/2024 she was happy to have S Kennedy represent her regarding “all things relevant” to the tenancy.
On 19/11/2024 the landlord filed a cross application against both tenants, which in effect was a response to S Kennedy’s claims.
The tenancy agreement was for a fixed term from 28/9/2024 to 28/9/2025 at a rental of $575.00 per week.
The tenants paid $2,300.00 being two weeks in advance and a bond on 6/9/2024.
The landlord lodged the bond of $1,150.00 with the Bond Centre on 10/9/2024.
On 11/9/2024 S Kennedy verbally advised the landlord that the tenants did not want the tenancy due to personal reasons and did not intend to move in.
Following correspondence between the parties about the requirements for ending a fixed term tenancy the landlord advertised the premises on Trade Me at a cost of $239.00, which the tenants “reluctantly” agreed to pay.
The premises were re-let as at 26/10/2024.
On 6/10/2024 the landlord arranged a refund of the full bond of $1,150.00 to the tenants.

Are the tenants entitled to a refund of rent?

As they did not move into the premises and gave three weeks prior notice the tenant seeks a refund of the two weeks rent paid in advance.
The tenant relied on the end date of the tenancy supplied by the landlord in the bond refund form.
In addition, the tenant was unhappy the landlord would not give him a key to the premises so he could store his possessions.
On the other hand, the landlord suggested that instead of refunding the bond they could have used it for the further two weeks rent owed by the tenants until the premises were re-let but they had sympathy for the tenants’ circumstances.
The landlord submitted that the end date provided in the bond form was a mistake and had been used to allow the bond to be refunded to the tenant as soon as possible.
In addition, the landlord suggested, and the tenant confirmed that the agreed advertising fee was never paid by the tenant.
Further, the landlord disputed that the tenant had ever asked for the keys to the premises.
Under section 135(1) where one party to a tenancy agreement pays to the other party under a mistake of law or fact relating to the agreement that party can apply to the Tribunal to recover the amount paid.
Subsection 135(2) provides that the Tribunal may decline to order repayment if satisfied that the person who received the money did so in good faith and has altered their position in reliance on the validity of the payment and in all the circumstances it would be unfair to order the repayment.
I find the tenant is not entitled to a refund of rent of $1,150.00 and there was no overpayment of rent made by the tenant.
The evidence supports that the tenancy was not assigned for four weeks, during which time the tenant was liable for the rent.
The fact that the landlord only took two weeks rent was to the advantage of the tenant, as was the case with the advertising fee.
For the avoidance of doubt, had the landlord claimed for the extra two weeks and the advertising fee I would have made an order pursuant to sections 40(1)(a) and 44A for the tenant to pay 1,389.00.

The tenant submitted that the landlord entered the premises without notice or consent over several days to show around prospective tenants.
In response, the landlord agreed that they viewed the premises on 29/9/2024 with a prospective tenant after giving the tenant written notice on 27/9/2024.
At the time of the viewing the landlord confirmed that the tenant had not taken possession of the premises and no response had been received to their notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has not committed an unlawful act.
Although technically the landlord did not have the consent of the tenant to show prospective tenants the premises, I am satisfied that they gave the tenant the required notice, had not received any response and the tenant was not occupying the premises.
It is an unlawful act for tenants to fail, without reasonable excuse to allow the landlord to enter premises in certain circumstances, which includes showing premises to prospective tenants.
Moreover, I consider the landlord was attempting to mitigate the loss of the tenant by pro-actively taking steps to re-let the premises as soon as possible.
Section 49 provides that where any party to a tenancy agreement breaches any of the provisions of the agreement or Act the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage on breach of contract.
In this case the tenant had breached the contract by failing to take possession of the premises subject to a fixed term tenancy they had agreed to.
The landlord took steps to re-let the premises as soon as possible, incurring a loss of rent and advertising fee totalling $1,389.00.
No filing fee is awarded to the tenant because they were unsuccessful or the landlord because they made no actual claim only a response.
Suppression has been granted to the landlord pursuant to section 95A because had they filed a substantive claim they would have succeeded, and I consider it appropriate in these circumstances to allow suppression.

Tenancy Tribunal case 5076648 — Exemplary damages

At a glance

Tenancy Tribunal case 5076648 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Are the tenants entitled to a refund of rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Are the tenants entitled to a refund of rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

At a glance

Claims & awards

Order

Reasons

Are the tenants entitled to a refund of rent?

Did the landlord enter the premises without consent or notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Are the tenants entitled to a refund of rent?

Did the landlord enter the premises without consent or notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions