What was Tenancy Tribunal case 5100148 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 5100148?

Compensation: Unlawful residential p…: $2,170.00 awarded to tenant; Property Damage: $200.00 awarded to tenant

What type of tenancy dispute was case 5100148?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5100148?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12152245-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5100148 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 5100148?

Compensation: Unlawful residential p…: $2,170.00 awarded to tenant; Property Damage: $200.00 awarded to tenant

What type of tenancy dispute was case 5100148?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5100148?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12152245-Tribunal_Order_Redacted.pdf.

6 Amber Glen, Albany, Auckland 0632 Tenancy Tribunal Case 5100148 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5100148 — net $2,370.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge bond	$200.00	Failure to lodge bond
Compensation: Unlawful residential premises	$2,170.00	Unlawful residential premises
Net award	$2,370.00
Total payable by Landlord to Tenant	$2,370.00

Claims and awards in Tenancy Tribunal application 5100148 — net $2,370.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge bond	$200.00	Failure to lodge bond
Compensation: Unlawful residential premises	$2,170.00	Unlawful residential premises
Net award	$2,370.00
Total payable by Landlord to Tenant	$2,370.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Yifan Li and Tao Ma must pay [The tenant/s] $2,370.00 immediately, calculated as shown in table below:

Reasons

The in-person hearing was held on 16 July 2025. The tenant attended the hearing and was assisted by a Mandarin interpreter. The landlord did not attend but was represented by counsel, Mr Ryan Wang.
Following my declaration issued 13 May 2025 that the premises were not a boarding-house and the tenant’s claims were to be considered on the basis there were three fixed-term residential tenancies (or those rolling into periodic tenancies) in place, the hearing on 16 July 2025 was to determine the tenant’s substantive claims. The tenant’s claims
The tenant seeks total compensation of $30,000 for all claims. 1
The tenant’s claims are: a. Exemplary damages for the landlord’s unlawful act in failing to lodge the bond within 23 working days after payment was made pursuant to ss 19(2), 109 and Schedule 1A of the Residential Tenancies Act 1986 (RTA). b. Compensation for water charges paid by the tenant in excess of water consumed in breach of s 39(3) of the RTA. c. Compensation for breach of quiet enjoyment relating to a “sewing machine factory” set up by other tenants in the “front unit” at the premises in breach of s 38(2) of the RTA. d. Compensation in the form of rebate of rent paid during the tenancies on the basis the premises are, or were at the material time, unlawful residential premises, pursuant to s 78A(4)(a) of the RTA.
The landlord does not dispute that the bond was not lodged with the Bond Centre within 23 working days, but says the unlawful act was not committed intentionally and therefore exemplary damages should not be awarded.
The landlord disputes the three additional claims. Background facts
The premises is a stand-alone house in Albany, Auckland. The landlord says when he purchased the house in 2018 it was partitioned into the current layout.
Publicly available records state the designated land use for the address 6 Amber Glen, Albany 0632 is “Single units, excluding bach.” 2
The landlord had rented the property to other tenants prior to the tenant’s tenancy which commenced on 28 December 2021.
The tenant arrived in New Zealand in November 2019. This was the tenant’s first rental property in New Zealand.
The layout of the premises (all contained within the stand-alone house) was as follows: a. The front unit was comprised of an entrance way, kitchen, lounge and dining room on the lower level and four bedrooms and two bathrooms on 1 Tenant’s application, page 4. 2 Auckland Council, https://www.aucklandcouncil.govt.nz/property-rates-valuations/Pages/rates- details-results.aspx?an=12341202335. the upper level. The front unit also had use of the garage, which included laundry facilities. b. The back unit was comprised of two bedrooms, a sitting room, shower room, toilet and kitchenette which were all on the lower level. c. A doorway in the entranceway of the front unit, through which there was internal access from the front unit into the back unit, was permanently fixed shut during the tenant’s tenancies. d. The front unit could be accessed by the premises’ front door and via an external door from the garden. The back unit could only be accessed via an external door from the backyard.
From 28 December 2021 to 2 October 2023, the tenant occupied the front unit. Under the first of two fixed-term tenancy agreements for the front unit, the tenant paid rent of $750 per week. From 17 June 2023, under the second fixed- term tenancy agreement, the tenant paid rent of $870 per week.
From 2 October 2023 until the tenant moved out on 24 November 2024, the tenant occupied the back unit. Under a third fixed-term tenancy agreement, the tenant paid rent of $550 per week for the back unit.
The tenant occupied the units with his wife and daughter. When the tenant occupied the front unit, the back unit was occupied by two other tenants. When the tenant occupied the back unit, the front unit was occupied by between 6 and 8 other tenants. Burden and standard of proof
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 fraction 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. Failure to lodge the bond
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received pursuant to s 19(1) of the 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 of the RTA.
The landlord accepts he did not lodge the bond with the Bond Centre. The landlord says he held the bond in a separate personal bank account. The landlord says the failure was not intentional and therefore exemplary damages should not be awarded. He says he believed the tenancy was a boarding house tenancy, and therefore, pursuant to s 19(1A) of the RTA, the landlord was not required to lodge the bond. The landlord also says the tenant suffered no loss as the bond was refunded at the end of the tenancy (less some agreed deductions).
It is not in dispute that the landlord committed an unlawful act, and accordingly I find the landlord did so. The issue for me to determine is whether the landlord committed the 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. See section 109(3) Residential Tenancies Act 1986.
I find the landlord knew, or should have known, of his obligations under s19(1) of the RTA. The landlord’s assertion that he believed he did not need to lodge the bond because he treated it as a boarding house tenancy is inconsistent with the amount taken as bond. The landlord received payment of $3,000 from the tenant, being the equivalent of four weeks’ rent. That is the maximum bond a landlord can require for a residential tenancy under s 18(1) of the RTA. Under a boarding house tenancy, a landlord can only require (and is not required to lodge) a bond of one week’s rent or less pursuant to s66D(1) of the RTA.
Furthermore, ignorance of the law is no excuse. The landlord had rented the premises to other tenants previously and therefore had ample opportunity to familiarise himself with his obligations under the RTA.
The tenant acknowledged the bond (less agreed reductions) was returned to him shortly after the tenancy, but says he felt uncomfortable and unsafe upon learning that the landlord had held the bond personally, rather than by a third party. That strikes at the public interest of having bonds held by a third party – to assure parties that the funds are held independently and securely.
For those reasons, I am satisfied it is just to award exemplary damages in a nominal amount of $200. The award recognises the effect the unlawful act had on the tenant, and the public interest in ensuring landlord’s comply with their obligations to lodge the bond within the time specified in s19.
The order is made accordingly. Compensation for water charges
During the hearing, the tenant particularised his claim in relation to water charges as “any fees above the monthly $180 that the landlord would ask the tenant to share.” The tenant says he was overcharged by “about $750.”
The tenant did not produce evidence of the amount he paid for water consumption charges. The tenant says he paid his share to the other tenants in the separate unit, who would then pay the landlord. The tenant says he does not have a record of the payments he made because he paid via the application WeeChat and the record of payment has been deleted.
I refer to the requirement (stated above from [15]) that the party bringing the claim (the tenant), establish their claims “on the balance of probabilities”. While the description given by the tenant (and by the landlord) as to how the tenants were charged for water consumption raises questions as to whether it was charged to the tenant strictly on a consumption basis, I was not presented with evidence to show how much the tenant paid for water during the tenancy. Without such evidence, I am unable to assess (if it was charged on a method other than by consumption only) how much the tenant was over-charged. The tenant’s estimate that he was overcharged by “about $750” is not sufficient.
The tenant’s claim for refund of water charges is dismissed because the applicant has failed to provide the necessary evidence. Compensation for breach of quiet enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
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.
The tenant did not allege harassment and did not seek exemplary damages. Rather, the tenant’s claim was framed as seeking compensation for the noise caused by the landlord permitting the tenants occupying the front unit to use the garage as a “sewing machine factory.”
The Tribunal has the jurisdiction to order general damages (see Birch v Otautahi Community Housing Trust 3 ).
The tenant says the tenants in the front unit set up a “sewing machine factory” at the same time the tenant moved into the back unit, that is, in or about October 2023.
The tenant says they had 4 – 5 sewing machines in the garage, and also ironing and cutting equipment. The tenant says the front unit tenants worked in the garage at various times of the day, during the summer he says they would sometimes work at night from 7pm to around 11pm or 12am-midnight.
The tenant says the noise of the machines disturbed his and his family’s enjoyment of the premises as the garage shared a wall with the back unit (with the unit’s kitchenette 4 ).
The tenant produced a 17-second video taken by him at 3:43pm on 5 November 2024. The video briefly shows activity in the garage of the property. One person is visible inside the garage. The garage has tables, lights and some sort of machinery operating although the loudest noise appears to be voices speaking. From the tenant’s video, it is not possible to see what machinery is operating in the garage. The tenant’s evidence was that there were 4 – 5 sewing machines and ironing and cutting equipment of a commercial nature but that is not shown in the video. The tenant stated the tenants in the front unit worked from the garage, producing sewn items to order.
The landlord also produced a video which showed readings taken on a hand- held decibel reader, however the landlord stated it was taken on an unknown date in March or April 2025. The file name of the video file starts “20250226...” suggesting it may have been recorded on 26 February 2025. Either way, the video was taken after the tenancy had ended in November 2024 and therefore does not assist with showing the amount of noise created by the sewing activity during the tenancy.
Ultimately, it is for the tenant to prove their claim. There was insufficient evidence to demonstrate the alleged commercial sewing equipment was set up in the garage, or to demonstrate how much noise was created by the sewing equipment. There was insufficient evidence of how many sewing machines were operating, and/or whether other machines were also operating. Given this, I am unable to assess whether it is likely the machines were used by the front unit tenants for domestic purposes, or on a larger commercial scale as alleged by the tenant. The tenant did not produce evidence to demonstrate the impact the noise had on his enjoyment of the premises. No videos were taken from 3 [2020] NZDC 17667. 4 As shown in the 29 June 2015 layout contained in the Plumbing report for Certificate of Acceptance application, YL.032. inside his unit to demonstrate the alleged noise created by the sewing machines and the impact it had on his family’s enjoyment of the unit.
The claim for compensation for breach of quiet enjoyment is therefore dismissed. Rebate of rent paid on the basis premises were unlawful residential premises
The Tribunal may declare premises to be unlawful residential premises: see section 77(2)(ac) of the RTA. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) of the RTA. See section 78A(2) of the RTA.
Where the Tribunal declares the residential premises to be unlawful, the Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.
The Tribunal has on many prior occasions considered whether or not premises are unlawful for the purposes of s 78A of the RTA, and three broad (though non-exhaustive) categories have been identified: a. Unconsented premises. In other words, premises where there has been no building consent or resource consent for the premises at all. b. Premises where an abatement notice or dangerous and insanitary building notice has been issued by Council. c. Cases where garages, basement conversions or parts of premises that are part of a larger household unit have been converted for residential use and then rented out as a separate household unit, without Council consent as to the change of use.
In this case, the tenant claimed the premises were unlawful for two reasons: the kitchen or kitchenette was not lawful, and/or, the partition between the two units was not lawful. As to the first reason, I am not satisfied there is evidence the kitchen or kitchenette was not lawful. The plumbing report dated 29 June 2015, which was submitted to the Council in support of a Certificate of Acceptance relating to the vanity in the shower room and laundry tub in the garage, shows a kitchenette installed as at that date. The tenant did not produce any evidence to show in what way the kitchen was unlawfully installed.
As to the second reason, I find the partition between the two units does result in the units being unlawful residential premises. The evidence shows it is more likely than not the landlord did not obtain a change of use from the Council in relation to the property to permit the single household to be divided into two units. 5
Given this, there was a failure by the landlord to comply with s 45(1)(c) of the RTA which requires compliance with any enactments or regulations to do with buildings. In this instance the relevant enactment is the Building Act 2004 (the BA) and the Buildings (Specified Systems, Change the Use and Earthquake Prone Buildings) Regulations 2005 (the BSSR).
Section 114 of the BA states: (1) In this section and section 115, change the use, in relation to a building, means to change the use of the building in a manner described in the regulations. (2) An owner of a building must give written notice to the territorial authority if the owner proposes— (a) to change the use of a building.
Section 115 of the BA states: An owner of a building must not change the use of the building...in a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use, will comply, as nearly as is reasonably practicable, with the building code in all respects.
The meaning of “change the use” is clearly stated in the BSSR. Section 5 of the BSSR states: For the purposes of sections 114 and 115 of the Act, change the use, in relation to a building, means to change the use (determined in accordance with regulation 6) of all or a part of the building from one use (the old use) to another (the new use) and with the result that the requirements for compliance with the building code in relation to the new use are additional to, or more onerous than, the requirements for compliance with the building code in relation to the old use.
Schedule 2 of the BSSR sets out categories of uses of all or parts of buildings: SR (Sleeping Residential)Attached and multi-unit residential dwellings, including household units attached to spaces or dwellings with the same or other uses, such as caretakers' flats, and residential Multi-unit dwellings, flats or apartments 5 Pursuant to ss 114 and 115 of the BA and Regulation 6 and Schedule 2 of the BBSR. accommodation above a shop SH (Sleeping Single Home)Detached dwellings where people live as a single household or family, including attached self-contained spaces such as granny flats when occupied by a member of the same family, and garages (whether detached or part of the same building) if primarily for storage of the occupants' vehicles, tools, and garden implements. Dwellings or houses separated from each other by distance
Public records indicate the consented use of the premises was a “Sleeping Single Home” or “SH.” On that basis, a change of use between an SH and an SR was required under ss 114 and 115 of the BA before the separate units could be rented out.
This means, while the “back unit” could be used by as a “granny flat” when occupied by a member of the same family occupying the main part of the house, 6 before it could be rented as a stand-alone unit (in the way it was to the tenant), the landlord needed to obtain written notice from Council that its new use as a SR would comply with the Building Code. There is no evidence of such written notice being obtained by the landlord. There is no evidence that the conversion of the premises into two flats was consented by the council or compliant with the Building Code.
Having found the premises was an unlawful residential premise, I turn to consider whether there were special circumstances under s 78A(4)(a)(ii) of the RTA which warrant a reduction in the rent that should be refunded to the tenant.
I note Parliament's intention behind the introduction of s 78A was to ensure landlords do not rent out inappropriate premises which expose tenants to health and safety risks. In moving that the Bill relating to s 78A be read a first time in Parliament, the Hon Dr Nick Smith stated: There have been examples around the country of garages or other properties that are being rented out that do not go anywhere near meeting the requirements of the Residential Tenancies Act but where there are limitations on our new compliance teams being able to enforce them because of that jurisdiction issue. My view is that the amendments in this bill that make it plain that the Tribunal has full jurisdiction over unlawful residential premises will strengthen the regulatory environment and ensure that those people who attempt to rent out such properties are held accountable.
I find there was no intent behind the landlord renting out the (unconsented) units and the front and back units appear to have been otherwise safe and sanitary. 6 Which would appear to be how it was sold in 2018, with the layout as depicted in YL.032. In these circumstances, the breach is a technical breach which justifies a finding of special circumstances.
In determining the amount of rent rebate the tenant is entitled to in compensation, the focus needs to be on the nature of the breach measured against the benefit of the utility, considered against all the relevant circumstances which will include the length of the tenancy period. 7 In Harding v Caroto, Judge D J Clark observed: 8 In my view, the fixing of a percentage of what constitutes special circumstances for the rental rate will not always be appropriate. To do so runs the risk of a skewed result where a landlord receives a punitive monetary penalty greater than another tenancy (but has a similar technical breach) just because the rental period is longer than that other tenancy.
The facts in Harding v Caroto are comparable to the present case. In that case, the bottom part of a single-home was rented as a “granny flat” without the landlord obtaining change of use. The tenancy was relatively brief, being only two or three months long. The breach was found to be technical which justified a finding of special circumstances. 9 The District Court found the appropriate amount that should be rebated was $975.
In this case, the nature of the breach was also technical – there is no evidence the tenant’s health and safety were actually at risk and the tenant and his family enjoyed the benefit of the units. The only significant factual difference is that, in this case, the three tenancies in the unconsented units spanned approximately three years. Over the three tenancies, I calculate the tenant paid $103,050 in rent. 10
Taking all these factors into account, I consider the appropriate amount of rent rebate is $2,170, being one week’s rent under each of the three tenancies. The total amount is higher than that awarded in Harding v Caroto, and I consider that appropriate given the three tenancies related to the renting of two unlawful residential premises and spanned a much longer period.
The order is made accordingly. Should the tenant’s identifying details be suppressed?
In their application, the tenant sought suppression of their name. At the hearing, the landlord also sought name suppression. 7 Harding v Caroto [2023] NZDC 5981 at [45]. 8 Ibid. 9 Ibid., at [11]. 10 I was not provided with a rental summary. The total rent paid is calculated based on the rent stated in the three fixed-term tenancy agreements.
The tenant has substantially succeeded in the proceedings. I do not consider that publication of the tenant’s name would be in the public interest or is justified because of the tenant’s conduct. Given that, an order for suppression of the tenant’s name is made.
The landlord’s 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 open justice principle requires the outcome of adjudication to be available to the public; and c. Weighing up the interests of the landlord and the public interest, the public interest outweighs the landlord’s interests.
Accordingly, no order is made for suppression of the landlord’s name or tenancy address. Costs
At the hearing, the landlord made an application for costs. The landlord’s counsel filed a memorandum as to costs after the hearing had been completed. The tenant also filed a response opposing the landlord’s application for costs.
Given my findings, the landlord is not the successful party and is therefore not entitled to costs.
The tenant, as the successful party, has not made an application for costs. I note that, except in a case to which any of s102(2),(4), or (5) of the RTA apply, the Tribunal has no power to award costs to or against any party to proceedings before it.
No order as to costs is made.

Tenancy Tribunal case 5100148 — Exemplary damages at 6 Amber Glen, Albany, Auckland 0632

At a glance

Tenancy Tribunal case 5100148 — Exemplary damages at 6 Amber Glen, Albany, Auckland 0632

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