What was Tenancy Tribunal case 5086868 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 5086868?

Compensation: Breach Of Section 60AA: $500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5086868?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5086868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11726103-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5086868 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 5086868?

Compensation: Breach Of Section 60AA: $500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5086868?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5086868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11726103-Tribunal_Order_Redacted.pdf.

93 Waitaki Street, Henderson, Auckland 0612 Tenancy Tribunal Case 5086868 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5086868 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: breach of section 60AA	$500.00	breach of section 60AA
Exemplary damages: breach of section 60AA	$1,500.00	breach of section 60AA
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Bond	$3,520.00
Total payable by Landlord to Tenant	$2,027.00

Claims and awards in Tenancy Tribunal application 5086868 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: breach of section 60AA	$500.00	breach of section 60AA
Exemplary damages: breach of section 60AA	$1,500.00	breach of section 60AA
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Bond	$3,520.00
Total payable by Landlord to Tenant	$2,027.00

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 $3,520.00 ([Bond number suppressed]) to [The tenant/s] immediately.
Crockers Property Management Limited As Agent For Majid Kadhem Shilab must pay [The tenant/s] $2,027.00 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing on 21 March 2025.
The tenant claims the landlord has breached sections 38 and 60AA of the Residential Tenancies Act 1986 (RTA). The tenant seeks compensation, exemplary damages, refund of the bond and reimbursement of the filing fee.
The landlord claims the tenant has breached their obligations under section 40(1)(c) RTA. The landlord seeks compensation, refund of the bond and reimbursement of the filing fee.
At the hearing, the landlord sought to orally amend their application to include compensation for cleaning following the end of the tenancy. This was not included as a claim in the landlord’s written application and the Registry only received information about this additional claim one day before the hearing. The tenant had not received a copy of the additional information filed by the landlord. In these circumstances, I declined to allow the landlord to advance a claim for compensation for cleaning at the hearing. It remains open to the landlord to file a fresh application for this if they wish.
Each party must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. This 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 Katipo 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 of 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence at the hearing). I must weigh this evidence to decide what is more likely.
A lot of evidence was given at the hearing. Whilst I may not refer to all of it, the parties can be assured that I have considered it in reaching a decision.
I deal with the tenant’s claims first and the landlord’s second. TENANT’S CLAIMS Breach of quiet enjoyment (section 38 RTA) The law
Section 38 RTA states: (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
Section 38(3) RTA further states that contravention of section 38(2) in circumstances that amount to harassment of the tenant is declared to be an unlawful act.
In the context of section 38(1) and (2), “quiet” means peaceful, or “without interference”, not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession.” 1 Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home.
The principle of quiet enjoyment means that the tenant is able to live in the premises how they wish to live, and unless what they are doing is unlawful in some way, it is not for the landlord to interfere with that right. Evidence and submissions of the parties
The tenant claims the landlord breached their quiet enjoyment on 9 November 2024.
Some time in May 2024, the landlord advised the tenant that they were going to sell the property. The property was listed with a real estate agent and the tenant allowed open home viewings of the property in the weekends. The property did not sell and the landlord changed listing agents sometime in October 2024. The new listing agents were Rizwana Ali and Sapna Saini. 1 Kenny v Preen [1963] 1 QB 499.
The tenant claims there was an incident with Mr Ali on 9 November 2024, which breached their quiet enjoyment. On this date, an open home was completed. The tenant gave evidence that they were present during the open home because they were suffering from sciatica. After the open home was complete, the tenant claims Mr Ali was rude towards them, as he was upset about the fact the tenant was present during the open home. The tenant claims Mr Ali shouted at them in front of their young daughter and was aggressive. The tenant submitted a video of the incident, which shows Mr Ali yelling in Hindi at the tenant. I could not understand what Mr Ali was saying, but the tenant claims he made a rude remark towards them.
After this altercation, it was agreed between the parties that all open homes would be completed by Ms Saini and Mr Ali would not be present. It was also agreed that there would only be one open home in the weekend, not two. There were no other confrontations between Mr Ali and the tenant.
The landlord was not present when the altercation occurred between Mr Ali and the tenant. The landlord organised for Mr Ali to be present at the hearing to give evidence about the incident. Unfortunately, by the time it came for Mr Ali to give his evidence, he had left the courthouse to attend an appointment. The Tribunal tried to call Mr Ali with no success. The landlord advised that they had received communication from Mr Ali advising that he no longer wanted to participate in the proceedings. Analysis
In the video submitted by the tenant, Mr Ali is yelling at the tenant. Whilst I cannot understand what Mr Ali is saying, his tone of voice indicates that he is most likely frustrated or angry. I bear in mind that the video does not show the entire incident however, it is concerning that Mr Ali behaved in such a way in front of the tenant’s young child. Notwithstanding this, I do not find that the tenant’s quiet enjoyment was breached. Mr Ali was initially in the property with the tenant’s permission. Further, this was an isolated incident and there were no other altercations. Whilst the tenant’s feelings might have been hurt by what occurred, the one-off incident did not reach the threshold where the tenant’s quiet enjoyment was breached.
This claim is dismissed. Termination without grounds (section 60AA RTA) The law
Section 60AA RTA states: A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.
Where a landlord breaches section 60AA RTA, compensation may be awarded, as well as exemplary damages up to a maximum of $6,500.00. 2
The notice provisions in section 51 RTA were amended on 30 January 2025. In this case, the landlord gave the tenant a notice terminating the tenancy in late 2024. The Tribunal applies the law at the time the notice was given. This means that the older version of section 51 RTA applies to determine whether the landlord has breached section 60AA RTA. Evidence and submissions of the parties – first notice given on 25 November 2024
On 25 November 2024, the landlord sent the tenant a formal notice ending the tenancy. The end date recorded in the notice is 23 February 2025. The notice does not specify the relevant section of the RTA under which the tenancy was terminated however, at the hearing the landlord confirmed that the notice was issued pursuant to section 51(2)(a) RTA. This section states: A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if – (a) The premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition. ...
The tenant claims that the landlord was not entitled to end the tenancy under section 51(2)(a) RTA, because the property was already on the market at the time the notice was given. The tenant submits that a literal reading of section 51(2)(a) RTA requires a landlord to place the property on the market within 90 days after the notice is given. The tenant submits that section 51(2)(a) cannot be used to terminate a tenancy where the property is already on the market and continues to remain on the market during the notice period, as occurred here. 2 Residential Tenancies Act 1986, section 60AA and Schedule 1A. Therefore, the tenant submits that the landlord terminated the tenancy without grounds.
The landlord submits that section 51(2)(a) RTA permits a landlord to end a tenancy while a property is currently on the market, as long as it remains on the after the termination date.
In this case, the tenant was aggrieved by the notice to end the tenancy because they had purchased tickets to fly to India for the period 21 January 2025 – 22 February 2025. The tenant was excited about this trip because it was the first time their daughter was going to meet family in India. The tenant gave evidence that the tickets cost them $4,595.50. The tenant claims they had to cancel their trip due to the end date of the tenancy being 23 February 2025 and that they only received a partial refund of approximately $2,000.00. The tenant seeks compensation for this amount. Analysis
Section 51 RTA strikes a balance between the ability of private landlords to manage their tenancies and the interests of tenants in having stable housing. It does this by clearly defining the reasons that landlords can end tenancies and specifying the relevant notice period that must be given to tenants. Section 60AA RTA further promotes the purpose of stable housing for tenants by requiring any reason given by a landlord to end a tenancy under section 51 to be genuine. If it is not, a landlord commits an unlawful act under section 60AA.
Understood in this light, the main purpose of section 51(2)(a) RTA is to ensure that a landlord only ends a tenancy if they have a genuine intention to sell the property after the termination date. In this case, the landlord clearly had a genuine intention to sell the property. They placed the property on the market during the tenancy and it remained on the market after the tenancy ended and up to the date of the hearing. This is not a case where the landlord has ended the tenancy by falsely claiming they wanted to sell the property, only to re- tenant it a couple of weeks after the termination date.
I find a purposive approach to the interpretation of section 51(2)(a) RTA to be more consistent with the overall spirit of the RTA, as opposed to a literal approach advocated for by the tenant. A purposive approach allows for a wider interpretation of section 51(2)(a) RTA. Adopting a purposive approach, I find that the landlord was permitted to end the tenancy under section 51(2)(a) RTA in circumstances where the property was already on the market at the time the notice was given, provided that it remained on the market for a reasonable length of time after the end of the tenancy. That is what happened here.
The landlord did not breach section 60AA RTA with the first termination notice given to the tenant on 25 November 2024.
This claim is dismissed. Evidence and submissions of the parties – second notice given on 27 November 2024
On 27 November 2024, the landlord’s property manager, Jane Jo, sent the tenant the following text message: The owner just sent me text that he wants to proceed 63 days notice today.
Jane Jo is employed by Crockers Property Management whom the landlord had contracted to manage the tenancy on his behalf. As the property manager, Ms Jo was the landlord’s agent at the relevant time and therefore, anything said or done by her binds the landlord, according to the general laws of agency.
The tenant submits that the text message sent on 27 November 2024 is a notice to terminate the tenancy. The tenant gave evidence that after receiving this text message, they believed the termination date was no longer 23 February 2025, but sometime in January 2025. The tenant rang Tenancy Services and was advised the notice was not enforceable, because the landlord had already sent them a 90-day termination notice. After receiving this advice, the tenant decided to structure their affairs in accordance with the end date recorded in the 90-day notice.
Ms Jo made submissions on behalf of the landlord that the text message was not a formal notice terminating the tenancy. Ms Jo gave evidence that she immediately followed her text message up with an email to the tenant advising that the 90 day notice was the basis upon which the tenancy was ending. The Tribunal gave Ms Jo an opportunity to find this email, which she was unable to do. Analysis
I find that the text message was a notice to terminate the tenancy. It is in writing and the intention to terminate the tenancy upon the expiry of 63 days is clearly recorded. It is also relevant to note the context in which the text message was sent to the tenant and previous text messages between Ms Jo and the tenant. Text messages were submitted showing a disagreement or misunderstanding between Ms Jo and the tenant about the tenant no longer permitting open homes after receiving the 90 day notice. The relevant communications state: Tenant Just because of this thing happening I have to cancel my trip to india and we are looking for house. Because we had plan to take my baby first time to india so my family can see her but all of a sudden this happened and I have no choice and cancel my tickets. Thanks Ms Jo It would be much easier if things were not turned out like this. To be honest the owner was generous enough to apply rent reduction and organise things and pay from his pocket when it was responsibility by tenants. Such as cleaning bills. And he get tired of all these drama going on. Most likely he will decide to send 63 days notice to end this endless argument or [threa]tening that you won’t allow the open homes for any reason. Be prepare for it and find property that available in Jan ... [emphasis added]
Read in this light, there is no reasonable basis upon which Ms Jo can claim that the text message was anything other than a notice to terminate the tenancy by giving 63 days’ notice. Ms Jo warned the tenant that the landlord was likely to end the tenancy by giving 63 days’ notice. Ms Jo told the tenant to be prepared for this and to look for another property available in January 2025. Shortly thereafter, Ms Jo texted the tenant advising that the landlord had told her to proceed with the 63 days’ notice. The text message sent by Ms Jo was clearly a notice terminating the tenancy.
I find that the notice was sent to the tenant in circumstances where, on the balance of probabilities, Ms Jo knew the landlord was not entitled to terminate the tenancy. A prior notice terminating the tenancy was sent to the tenant only two days earlier. The reason given in the first notice was that the landlord wanted to sell the property and the timeframe given was 90 days. The landlord gave evidence that they were considering ending the tenancy by giving 63 days’ notice instead, because their family was in emergency accommodation after their house caught on fire. No evidence to support this was submitted. If it had been submitted, the Tribunal would expect the evidence to show that the fire occurred between 25 and 27 November 2024. In the circumstances of this case, it was entirely inappropriate for the landlord to send the tenant a second notice terminating the tenancy for an different reason and shorter notice period only two days after issuing the tenant with the first notice.
I find that the landlord breached section 60AA with the second termination notice.
The tenant seeks compensation for the stress they endured in receiving the second termination notice. I consider $500.00 to be reasonable. This amount fairly reflects the fact that it would have been alarming and stressful for the tenant to receive a second termination notice purporting to end the tenancy 27 days earlier than recorded in the first termination notice. The tenant was understandably confused and anxious about what the actual termination date was. I have also considered the fact that the tenant’s fears were allayed relatively quickly after seeking advice from Tenancy Services. Further, the landlord did not seek to enforce the second termination notice and the tenant vacated the premises in accordance with the date specified in the first termination notice.
It is not appropriate for the Tribunal to order compensation for the fact that the tenant cancelled their trip to India and did not receive a full refund. This is because the landlord was entitled to send the tenant the first termination notice, even though it had a negative effect on the tenant’s travel plans. Exemplary damages The law
I have found that the landlord breached section 60AA by sending the tenant a text message purporting to end the tenancy by giving 63 days’ notice. This is an unlawful act, for which exemplary damages may be awarded up to a maximum of $6,000.00.
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.
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 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.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal3 that: Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages. Analysis
I find that the landlord acted intentionally in sending the tenant a second notice purporting to terminate the tenancy by giving 63 days’ notice. The text message was deliberately sent by Ms Jo to the tenant. It was not sent by accident.
The tenant suffered stress, panic and confusion as a result of the second termination notice. Only two days prior, they believed the termination date was 23 February 2025. Within a very short space of time, they were then told that they only had 63 days before the tenancy ended.
There is a high public interest in ensuring that landlords do not terminate or purport to terminate tenancies without grounds. The provision of stable housing is important for tenants and landlords should be deterred from ending tenancies by not following the proper procedure. 3 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92
For the above reasons, I find that it is just to make an award for exemplary damages in this case.
When setting the amount of exemplary damages, I bear in mind the maximum the Tribunal can order is $6,000.00. This maximum is relatively high and reflects the seriousness with which Parliament intended the Tribunal to treat breaches of section 60AA RTA. I also bear in mind the fact that the tenant’s stress and anxiety was relieved shortly after they received the notice and sought advice from Tenancy Services. Further, no previous instances were referred to me by the tenant where the landlord has purported to terminate a tenancy without grounds.
Considering all of these factors, I find $1,500.00 to be a reasonable amount the landlord should pay the tenant by way of exemplary damages. LANDLORD’S CLAIMS
Most of the landlord’s evidence centred around the difficulty they claim to have experienced in selling the property while the tenant was living there. For example, the landlord claims that whilst the tenant permitted open homes, they were present most of the time, which detracted potential buyers. Further, the landlord claims that the tenant did not present the property in the best way to attract potential buyers and fed pigeons which flocked to the roof of the property. The landlord claims all of this delayed the sale of the property, as prospective purchasers were put off.
The Tribunal is not a forum of general complaint. It deals with breaches of the Residential Tenancies Act 1986 (RTA). The claim by the landlord that the tenant frustrated the sale of the property by being present at open homes, not presenting it immaculately and feeding pigeons does not constitute a breach of the RTA. The Tribunal does not have jurisdiction to make a finding on these issues. When this was highlighted to the landlord at the hearing, they submitted that the tenant did not keep the premises reasonably clean and tidy. A tenant has an obligation to keep the premises reasonably clean and tidy under section 40(1)(c) RTA and I consider this claim below. Reasonably clean and tidy (section 40(1)(c)) The law
“Reasonably” clean means clean to the standard an average, reasonable bystander would consider reasonable. 4 It does not mean commercially clean, 5 spotless 6 or to a hotel or motel standard. 7 The better the premises and the higher the rent payable, the higher the standard expected. 8 Evidence and submissions of the parties
The landlord claims the tenant did not keep the premises reasonably clean and tidy. The tenant claims that they did.
The landlord did not submit any photographs of the property taken during a routine inspection.
The landlord gave evidence that on 21 October 2024, they visited the property with the tenant’s consent to consider whether the inside of the premises needed renovating. The landlord gave evidence that the inside of the property was in good condition, but there were lots of pigeons on the roof.
The landlord called Ms Saini as a witness to give evidence about the general state of the property during open homes. Ms Saini gave evidence that the property was not up to the mark. She claims that the toilet was unflushed and the floor in the lounge was sticky. Overall, Ms Saini claims the property was not presented well during open homes. Analysis
The landlord has not proven on the balance of probabilities that the tenant did not keep the premises reasonably clean and tidy. The fact that the inside of the premises was not up to the standard one would expect for conducting an open home, does not mean the premises were not reasonably clean and tidy.
The lack of photographs, together with the landlord’s concession that when they visited the property on 21 October 2024, the inside of the premises was in good condition means the landlord has not proven their claim on the balance of probabilities. 4 Housing New Zealand v Holloway NZTT Auckland TT215/93, 8 February 1993 at [8]. 5 Mills v Kiwi Property Care Ltd NZTT Auckland TT215/93, 8 February 1993 at [8]. 6 Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 7 Richards v Scully NZTT Christchurch TT858/97, 8 May 1997 at [3]; Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 8 Westwood v Western [1994] DCR 759 at [770].
This claim is dismissed.

BOND

The tenant has applied for a refund of the bond. The landlord has a claim against the bond, which I have dismissed. Therefore, I order that the bond be refunded to the tenant. FILING FEE & SUPPRESSION
The tenant has been substantially successful in their claim and therefore, I order the landlord to reimburse the filing fee and grant the tenant’s request for name suppression.
The landlord did not apply for name suppression.

Tenancy Tribunal case 5086868 — Exemplary damages at 93 Waitaki Street, Henderson, Auckland 0612

At a glance

Tenancy Tribunal case 5086868 — Exemplary damages at 93 Waitaki Street, Henderson, Auckland 0612

At a glance

Award balance

Claims & awards

Order

Reasons

BOND

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BOND

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions