What was Tenancy Tribunal case 5109728 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 5109728?

Property Damage: $750.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5109728?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5109728?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12164813-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5109728 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 5109728?

Property Damage: $750.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5109728?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5109728?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12164813-Tribunal_Order_Redacted.pdf.

11 Tui Street, Piopio, Piopio 3912 Tenancy Tribunal Case 5109728 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5109728 — net $2,777.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failing to lodge the bond	$750.00	Failing to lodge the bond
Exemplary damages: giving the tenant an unlawful termination notice	$2,000.00	giving the tenant an unlawful termination notice
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,777.00
Total payable by Landlord to Tenant	$2,777.00

Claims and awards in Tenancy Tribunal application 5109728 — net $2,777.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failing to lodge the bond	$750.00	Failing to lodge the bond
Exemplary damages: giving the tenant an unlawful termination notice	$2,000.00	giving the tenant an unlawful termination notice
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,777.00
Total payable by Landlord to Tenant	$2,777.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name.
The Piopio College Board must pay [The tenant/s] $3,577.00 immediately.
The claim for exemplary damages for failing to complete the Healthy Homes Standards statement/declaration is dismissed.

Reasons

[The tenant/s] attended the hearing. The landlord was represented by Mr Carter, the presiding member of the Piopio College Board of Trustees (“the Board”).
The tenancy was a periodic tenancy which commenced on 15 January 2024 and ended on 20 January 2025. Rent is $255.00 a week. The premises has three bedrooms. The landlord has managed this tenancy and five other tenancies since Tomorrow’s Schools was introduced, which was some time around 1988 to 1990.
The tenant is not a teacher at Piopio College. He had moved to the [Region] from [City] to teach at another school in the area, and receives discounted rent in keeping with Ministry of Education policy. It is not unusual for one or more of the six properties the College manages to be occupied by persons that are not its employees or contractors.
The tenant claims exemplary damages on the grounds that: a) the bond was not lodged with the bond centre within 23 working days of it being paid; b) the landlord gave the tenant notice to terminate the tenancy knowing it was invalid; c) the landlord did not sign the Healthy Homes Standards statement in the tenancy agreement.
As the applicant it is for the tenant to prove their claim on the balance of probabilities, being the standard of proof that applies to civil matters. This means that the tenant must prove it is more likely than not that their version of events is true.
The tenant’s claim is for exemplary damages. Parliament has determined that some obligations in the Residential Tenancies Act 1986 (RTA) are so important that if a landlord or tenant breaches them they are deemed to be an unlawful. When a breach occurs of such obligations exemplary damages may be awarded.
Exemplary damages are not compensatory in nature, but are a penalty that is awarded at the Tribunal’s discretion in cases of serious breach to mark the Tribunals’ disapproval and deter a party from future such offences. In Auckland City Council v Blundell 1 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 the conduct.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the intention of the party committing the breach, the effect of the unlawful act, the interests of the other party, and the public interest (see section 109(3), RTA). The maximum levels of exemplary damages that can be awarded vary depending on the obligation breached and are set out in Schedule 1A, RTA.
Claims for exemplary damages must be made within certain time limits 2 . An application for exemplary damages for failing to lodge the bond or to keep records in respect of bonds must be made no later than 12 months after 1 [1986] NZLR 732 2 Section 109(2) RTA termination of the tenancy. For any other unlawful act, an application must be made no later than 12 months after the commission of the unlawful act.

Did the landlord fail to lodge the bond as required by the RTA?

A landlord must send any bond payment to the Bond Centre within 23 working days after payment is received from the tenant. This applies whether a bond is paid in part or whole, and regardless of whether the tenant has signed the bond lodgement form. 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(1) and (2) and Schedule 1A, RTA.
The tenant paid the bond on 20 January 2024. On 8 November 2024, after receiving the landlord’s notice to vacate the premises, the tenant rang Tenancy Services helpline and was advised the bond had not been lodged. The tenant emailed the College’s principal on 10 November and asked him to investigate what had happened to his bond and outlined that it was a serious breach if it had not been lodged. The principal replied the following day: “Your deposit will be refunded when needed with no issues”.
On 15 November the tenant was advised by Tenancy Services that the bond still was not lodged. As he had emailed the landlord several times about the bond and it remained not lodged, the tenant sent a 14 day notice to the principal and Mr Carter on 1 December requiring the landlord to lodge the bond.
The bond was lodged on 6 December 2024. The bond should have been forwarded to the Bond Centre by 23 February 2024, but instead it was forwarded around 9 and a half months later.
The landlord does not dispute that it failed to lodge the bond in the time required by the RTA. The landlord says it was an administrative oversight rather than intentional neglect, and that once the oversight was identified it was added to the schedule to be processed by requesting the tenant to complete a further bond lodgement form 3 .
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).
However the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten or made a mistake, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has 3 The tenant had already completed a bond lodgement form at the start of the tenancy other tenancies 4 ; the landlord is experienced 5 ; and where the landlord knew of the obligation from the bond form signed by the tenant 6 .
In this case the landlord manages 6 tenancies and has done so for around 35 years. It is expected that an experienced landlord, which in my view Piopio College must be considered to be, would have a review system in place which highlights any failure to pay the bond to the Bond Centre so that it can be rectified promptly.
In this case it seems such systems do not exist and the initial response to the tenant from the landlord does not suggest to me a clear understanding of the legal requirement to lodge the bond or the ramifications if the bond is not lodged. That the bond money remained in the College’s bank account for such a long period of time after it was paid by the tenant is a real concern. Mr Carter assured me that the College was undertaking a review of its systems regarding management of its tenancies. In my view from the evidence presented, this is clearly needed.
Furthermore, even though the tenant brought the failure to the landlord’s attention on 10 November the bond was not received by the Bond Centre until 6 December, some 20 working days later.
Considering all of the circumstances I find the breach was intentional.
The effect on the tenant is that he believed the College would be a responsible landlord and felt let down that the bond had not been lodged as required by the law. The tenant was further disappointed and concerned when the landlord did not lodge the bond within 5 working days after he advised it had not been lodged. He was concerned that the College was mismanaging the tenancy and lost trust in it as a landlord.
The tenant believed that bonds for several of the College’s other tenancies had not been paid to the Bond Centre until he raised the issue about his bond. He believed that a lump sum for several bonds was forwarded to the Bond Centre at the same time his bond was forwarded. Mr Carter was not able to verify whether this was the case and/or whether all other bonds had been paid to the Bond Centre within the time frame required under the RTA.
A bond is the tenant’s 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. 4 Jones v Ying [2001] NZTT Auckland 2783/01 5 Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02 6 Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373
I am satisfied that this is a situation where it is just to award of exemplary damages. I find an award of $750.00 is appropriate having considered all of the factors. This is 50% of the maximum that can be awarded. The amount awarded is higher than it would have been had the landlord promptly paid the bond to the Bond Centre after the tenant raised the issue. Instead the landlord’s response was dismissive and did not reflect understanding of the seriousness of a landlord not lodging the bond as legally required. Did the landlord terminate the tenancy without grounds? If so, should exemplary damages be awarded?
Under section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
The landlord issued the tenant with a 63-day notice to terminate the tenancy on 4 November 2024 on the basis that the premises was needed for an employee. The notice said: The landlord customarily uses the premises for occupation by employees of a board of trustees or by contractors under contracts for services with a school board of trustees. That fact is clearly stated in the tenancy agreement, and the premises are required for that use (this reason only applies if the landlord is the Ministry of Education).
Under section 51(1)(c)), RTA a landlord is entitled to give such notice as long as the fact is stated in the tenancy agreement.
The tenant raised with the landlord on the same day he received the termination notice that it did not comply with the RTA primarily as the tenancy agreement did not state that the landlord customarily uses the premises for occupation by its employees 7 . The landlord maintained the required clause was in the tenancy agreement, and that they had an employee ready to move in.
The tenant disputed it was a term of the agreement and brought to the landlord’s attention that if it was it should have been under the heading “Insert other terms of this tenancy” on page 6 of the agreement, and not on page 4 alone. The landlord responded that it had “spoken to both the tenancies[sic] and our lawyers ... and both state the 63 day clause doesn’t need to be on page 6. Page 4 is where all the clauses go and do not need to be moved to page 6 ” 8 . 7 The tenant also raised that Piopio College Board of Trustees is named as the landlord in the tenancy agreement and not the Ministry of Education. However I have focussed on the primary concern raised by the tenant as set out above. 8 In the principal’s email to the tenant dated 6 December 2024 at 2:39pm.
Mr Carter explained at the hearing that the “tenancies” referred to advice sought from NZSBA, being the Board Support Services organisation, who also confirmed the notice to terminate was valid.
The matter went back to the Board and the tenant was advised that the Board had unanimously agreed that the notice to vacate was valid. The College then filed a claim in the tenancy Tribunal seeking validation of its notice to vacate. The claim was withdrawn after the tenants advised they had found new accommodation.
In this case the tenancy agreement is a Tenancy Services’ standard agreement. The first 4 pages of the document are guidance pages and the agreement, or contract, starts on page 5.
Page 1 under the heading “HOW TO USE THIS AGREEMENT” sets out:
Page 2 commences with the heading “OUTLINE OF THE PROVISIONS OF THE RESIDENTIAL TENANCIES ACT 1986 (RTA)”. Together with the Heading on page 2 (“Outline of the Provisions of the Residential Tenancies Act”) and the wording set out under that heading in point 15 9 it is exceptionally clear that the guidance in those words is exactly that, and that what is on page 4 does not form part of the terms of the agreement between the landlord and tenant.
The wording referred to as being on page 4 is included under the heading: “OUTLINE OF THE PROVISIONS OF THE RESIDENTIAL TENANCIES ACT 1986 (RTA)”. There are 17 sub-headings which follow, containing information designed to provide guidance to landlords and tenants of the respective obligations and requirements of parties to a residential tenancy. Under point 15 “Notice to terminate tenancy” on page 4 it states: 9 See paragraph 31 above
This is the wording the landlord states is contained in the tenancy agreement. However this is not a term of the parties’ tenancy agreement. This is part of the outline of RTA provisions and guidance provided to tenants and landlords. In particular this statement on page 4 points out that if the landlord is wanting to rely on that provision to terminate the tenancy they must ensure that it is stated in the agreement. Page 6, which is part of the agreement provides space for other terms of the tenancy, such as this, to be included.
The tenant provided a Tenancy Tribunal case, None v None [2024] NZTT 4941326, where the Adjudicator also found the same wording in a Tenancy Services standard format agreement to be guidance and not a term of the contract.
I find the advice from both sources contacted by the landlord was incorrect. I understand that the landlord did not provide the tenancy agreement to either their lawyer or the Board Support Services. I am of the view the advice would have been different had either source seen the full standard form Tenancy Services tenancy agreement and realised the wording being relied on was within the guidelines which are a preamble to the contract.
Accordingly I find the landlord’s notice to terminate was not valid.
For there to be a breach of s 60AA the landlord must have given the notice knowing it was not entitled to do so. The generally accepted legal definition of “knowledge/knowing” is that a person has actual knowledge, full awareness and consciousness. It also covers a person who should have known of the circumstance or result and includes acting with deliberate ignorance or reckless disregard, often described as wilful blindness or indifference.
I have considered whether the evidence leads me to the conclusion that the landlord terminated the tenancy knowing they were not entitled to. In my view there are several factors which persuade me that the landlord knew, or ought to have known, that they were not entitled to give the termination notice: a) The tenant told the landlord the statement was not included in the agreement and where it should be written in the tenancy agreement. In doing so he made it known that he had sought advice from Tenancy Services. b) The landlord did not provide a copy of the tenancy agreement to those persons it contacted for advice on whether its termination notice was valid. c) The wording in the preamble pages to the agreement is clear. Page 1 indicates the information that follows is a brief outline of some key provisions set out in the RTA; page 2’s heading reiterates what follows is an outline of RTA provisions; the wording on page 4 makes it clear what needs to be stated in the tenancy agreement. d) The Board has reviewed whether they were able to terminate the tenancy. In doing so they should have had regard to the tenant’s comments and looked again at the tenancy agreement.
In my view it would not be possible to come to the conclusion that this tenancy agreement included a statement that the landlord customarily uses the premises for occupation by employees. It is very clearly only included in page 4 as part of an outline of and guidance on some of the key provisions in the RTA.
In seeking advice and not providing the full document to their lawyer and the Board support services, I consider the landlord has effectively promoted their position that the wording is part of the agreement, rather than acknowledging the tenant has correctly pointed out that the required wording is not in the agreement.
Accordingly I find the landlord has breached s 60AA.
I now turn to whether exemplary damages should be awarded. The threshold question for any award of exemplary damages is whether the breach in question has been intentionally committed.
The definition of ‘intentional’ in the Tribunal case of Edmondson v Walls North Shore 10 has been adopted in several District Court decisions 11 : “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 .”
It is not necessary to prove that the party intended to act unlawfully, simply that they intended to commit the act or omission that amounts to a breach. 12 This applies equally to committing a prohibited act and failing to perform an obligatory requirement in the RTA.
Here I am satisfied that the landlord has turned its mind to the need for the agreement to contain the appropriate statement and then has deliberately ignored that the agreement does not contain the required statement. I say this for the following reasons: • The landlord has read in the guidelines on page 4 that there is a requirement for a statement to be included in the tenancy agreement to the effect that the premises is customarily used for the occupation of employees. • The landlord has received information from the tenant that such a statement is not included in the agreement. 10 [1993] NZTT, 548/92, 29 June 1993 at para [38] 11 For example, Birch v Otautahi Community Housing Trust [2020] NZDC 17667 and A1 Property Managers Ltd v Duggan [2021] NZDC 9168 12 Parton v Fifita DC Auckland TT1815/00, 1 May 2001 • The landlord has reacted by seeking advice on its right to terminate the tenancy without providing the appropriate documentation to those it has contacted, and the Board has then re-considered the validity of the termination notice.
The landlord therefore in my view has turned its mind to whether the required statement is in the tenancy agreement and deliberately decided that it is, even though the tenant has made it clear that it is not. In my view the landlord’s interpretation that the comments are part of the tenancy agreement is not rational. The reconsideration of the Board of whether the notice is valid confirms to me the landlord’s intention to commit the unlawful act of terminating the tenant’s tenancy without valid grounds.
The effect on the tenant is significant. The notice came as a surprise as when the tenant first looked at the property he asked the landlord’s representative (the Business Manager) whether he would have to move out if the property was needed, and was reassured he and his family would not have to move out 13 .
The tenant and his family found it difficult and stressful to find another tenancy. There are few tenancies in the area and the time of year added to the challenge. The tenancy ended under the notice on 13 January 2024.
The tenant, his wife and three of his children moved into a two bedroomed house. The fourth child has moved to live with his mother and visits, which adds pressure to a tight living environment. The cost to move was unexpected and substantial, as the tenant had to pay for the moving truck and find rent in advance and bond money.
The landlord had said in its letter confirming the Board had unanimously agreed the notice was valid, that it was applying to the Tenancy Tribunal for a determination on the validity and the tenant could stay in the property until that was resolved. However the tenant did not wait until a hearing as that would reduce the time left to find a new tenancy. The confirmation of the Board’s decision that the termination notice was valid was provided to the tenant some time after 12 December 2024. The tenancy was due to end on 13 January 2025.
Terminating a tenancy is a serious matter which can cause major upheaval and disruption for tenants. It is in the public interest that a landlord only gives notice to terminate a tenancy when the law enables them to do so. Given the circumstances I consider it appropriate and just to award exemplary damages. The maximum award is $6,500 reflecting the importance Parliament places on this breach. The District Court has ruled that the highest awards should be reserved for the worst cases. There is no indication that the landlord has 13 The landlord’s written statement records that it disagrees that the tenants were verbally advised they would not have to leave if another staff member needed the property. However no evidence from the Business Manager was provided. committed a previous breach of this nature. I consider an award of $2,000.00, being just under a third of the maximum, is justified to mark the disapproval of the landlord’s conduct. Did the landlord fail to sign the Healthy Homes Statement in the tenancy agreement?
Under s 13A(1CA) RTA, landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards (HHS) as required and including the information (if any) prescribed by regulations.
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to include a HHS in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide the insulation statement, or up to $900.00 for knowingly providing false or misleading information.
The landlord has not completed or signed the declaration at the end of the tenancy agreement that information contained in the HHS is true and correct. More importantly the landlord has not included all information required for the individual HH standards, particularly for the insulation statement.
In saying this I recognise that under this tenancy the premises did not need to comply with HHS until the 120th day after the commencement of the tenancy, which was 15 May 2025 14 . That means where appropriate the landlord was able to state in the sections provided on the statement that compliance is not required until the healthy homes compliance date but did not do so. Some of the form has been completed and other parts not.
However the premises had to comply with insulation standards from 1 July 2016 15 . The landlord’s insulation statement is incomplete and inconsistent. For example the R-value for ceiling insulation is recorded both as R1.6 and R 3.2. The tenant says the insulation is loose fill whereas the agreement records it as ‘segments’ and then ‘Batts’.
Mr Carter conveyed he was disappointed that the page requiring the signature was “missed”. I expressed to Mr Carter my concern that it was not just that page that was not completed and that overall the standard of completion of the HHS statements was unacceptable.
The landlord has breached section 13A (1CA). 14 See Residential Tenancies (Healthy Homes Standards) Regulations 2019 Schedule 1, Part 1, Regulation 2 15 See Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 Regulations 2, 12 and 15.
However while exemplary damages for this breach were discussed in the hearing, I realised in completing my decision that I am unable to consider such an award as the application is time barred.
The tenant’s application was made on 7 April 2025. The date of the commission of the unlawful act was the date when the HH statements were completed which I take to be 15 January 2025, being the date of the agreement. As the application was made more than 12 months after the commission of the unlawful act exemplary damages cannot be awarded. Accordingly this application is dismissed. Other matters
As [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.
Suppression: Under section 95A, RTA the Tribunal must on the application of a party that has wholly or substantially succeeded in the claim order that the party’s name or identifying details not be published unless it considers publication is in the public interest or justified by the party’s conduct or other circumstances of the case. The tenant is the successful party and has applied for suppression of his name. Accordingly suppression is granted.

Tenancy Tribunal case 5109728 — Exemplary damages at 11 Tui Street, Piopio, Piopio 3912

At a glance

Tenancy Tribunal case 5109728 — Exemplary damages at 11 Tui Street, Piopio, Piopio 3912

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to lodge the bond as required by the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to lodge the bond as required by the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions