Published tribunal order
Tenancy Tribunal case 5110068 — Exemplary damages at 1516 Dominion Road Extension, Mount Roskill, Auckland
Decided 18 May 2026 · Published 18 May 2026 · Application 5110068
- Exemplary damages
Party names are redacted in the official published order.
Order
- [The tenant/s]
- Samanthi Beneragama must pay [the tenant/s] $1568.00, as set out in the table below. ItemAmountTotal Failure to provide written statement s 13(1F), exemplary damages $100 Failure to lodge the Bond at the Bond Centre, exemplary damages $300 Breach of s 45 of the RTA, exemplary damages $500 Invalid Termination Notice $640 Filing fee$28$1568
Reasons
- By order dated 16 December 2025, I ordered that the agreement the subject of this dispute was a residential tenancy agreement and that the Tribunal therefore had jurisdiction to hear this matter.
- I now proceed to consider and determine the tenant’s claims. Background
- The tenancy started on 20 May 2023 and came to an end on 2 October 2023.
- The applicant alleges he had a tenancy agreement and that the landlord was in breach of their obligations under the Residential Tenancies Act 2986 (the RTA).
- The premises comprise a large room and a separate bathroom. They are adjacent to the main residential premises which the landlord resides in. The applicant initially responded to an advertisement for a double bedroom Studio with bathroom and wardrobe, with beds supplied.
- There were two ways to get outside. One was through the bathroom and the other was through some sliding doors. The tenant mainly came and went from the sliding doors.
- In prior directions I have recorded the applicant’s claims as follows: a) There was no written tenancy agreement put in place with respect to the premises in breach of the RTA b) The bond was not deposited at the Bond Centre. c) After moving in, the tenant discovered that the bed, which came with the premises, had fleas. This was not replaced immediately after the tenant complained about it. d) There was a flooding incident that took place in around August 2023. A pipe broke. The tenant had no water for about 24 hours. The tenant was upset about the fact that after he informed the landlord of this problem, the landlord allegedly entered his premises without any permission and attempted to fix the problem, failed to do so and had to return at a later time. e) There were many insects and snails in the premises over the course of the tenancy. These entered the property through a gap under the sliding door. f) Eventually the tenant could not tolerate this situation any longer and advised the landlord he would be moving out. This led to the landlord giving him two weeks notice to leave. The tenant claims that that unlawful notice was retaliatory. g) The tenant claims the landlord went through his belongings after the tenancy came to an end and removed some items and damaged others.
- The tenant claims compensation and exemplary damages. He claims compensation for the lost or damaged personal items. Burden of proof
- In earlier directions, I explained to the parties that a party who brings a claim to the Tenancy Tribunal must prove, on the balance of probabilities, that their version of events took place. Independent witnesses, corroborating documents and photographs can be an important part of discharging this burden of proof. This is particularly important in the case of conflicting oral evidence.
- The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. In that case, Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.” The relevant background
- The tenant says he never got any written tenancy agreement and that the landlord is lying when they say they prepared an agreement and gave it to him,
- The landlord said they prepared a flatmate agreement and that the tenant signed it. They say they cannot now find it.
- The tenant refers to evidence of the landlord later telling the police there was no tenancy agreement but the landlord says that is a reference to the fact there was no tenancy agreement, because this was a flat sharing agreement.
- The agreement they say they prepared is a standard one-page flat mate / flat sharing agreement.
- The tenant paid two weeks bond to the landlord ($640) and the landlord accepted they did not pay it to the Bond Centre because they considered this to be a flat sharing agreement and did not think they had to.
- Regarding the condition of the bed, the tenant said shortly after moving in he was scratching and thought the bed had fleas. He bought some flea bombs but they were not working. He asked the landlord about it but she said when her husband was back from holiday he would sort it out. After the landlord’s husband returned from holiday agreement was reached for the tenant to find a new bed, buy it and then the amount could be reduced from the tenant. This was not until the first week of July.
- The landlord accepts they have met the cost of a new bed but denies there were fleas in the bed and says other earlier tenants did not complain. The landlord said the bed the tenant was using was by that stage in a very smelly state and that there was food on the floor with maggots in it. This was denied by the tenant who said this had never been raised before. No corroborating evidence was provided.
- There was a flooding incident that occurred in the tenant’s bathroom and for about 24 hours the tenant was without water. The tenant claims the landlord came into his premises to attempt repair and later returned to do further repairs. The landlord said his plumber did the repair. Little corroborating and independent evidence was provided on both sides.
- The tenant supplied photographs of snails on the floor, alongside sand. He said the snails come in from around the rainy part of winter and that when he told the landlord he said they were normal.
- The landlord does not deny that snails were entering the property. Termination of the tenancy
- The events leading to the termination of the tenancy were fraught with tension and verbal animosity between the parties.
- The tenant said that he decided he had to go, because of the condition of the premises. He told the landlord on 7 September he would be leaving. He considered he was giving four weeks notice. He then said the landlord retaliated by giving him a two week notice to terminate the tenancy dated 16 September.
- The tenant had arranged to move out on 5 October but did not tell the landlord that.
- The landlord wanted the tenant to go and delivered the tenant a trespass notice on 1 October. The landlord considered they were able to do so because their two week notice had expired. called the police to their property on 2 October because the tenant had been seen carrying two petrol cans into his premises.
- The police attended the property and took the tenant away. The relevant report records that there were cooking elements on at the premises, the tenant had been seen carrying petrol into the premises and that the tenant seemed to indicate (paraphrasing) signs of self-harm.
- The tenant said that in the end, although he was taken away by the police, he was not charged and there is no evidence of any criminal conduct for the petrol cans in his car or the elements being left on.
- The landlord and his family felt very scared of the tenant after these events and refused to allow him back into the premises after this.
- Eventually, a friend came and retrieved the belongings. The tenant said the landlord went through all his belongings in the meantime and is claiming that some of them were packed up and have been destroyed through discolouration, and that many items were missing.
- He provides no corroborating evidence of the damaged or missing items, or when he purchased them or their condition.
- He says the fact there was a petrol can in his car was not evidence he was about to commit a crime.
- The landlord strongly denies going through his belongings; they say the premises was very disgusting and smelly and they did not want to set foot in there.
- I note that I have not recounted all the evidence that has been given and I observe that much of what each party said was denied by the other. The issues
- Arising out of the foregoing, the issues I must determine are: a. Was there a written tenancy agreement put in place with respect to the premises in breach of the Residential Tenancies Act 1986 (RTA)? b. Was the bond was deposited at the Bond Centre? c. Was the landlord in breach of their obligations of maintenance and repair under s 45 of the RTA as a result of: i. the bed, which came with the premises, allegedly having fleas. This was not replaced immediately after the tenant complained about it. ii. The flooding issue iii. The snails and insects. d. Was the landlord in breach of the obligation of quiet enjoyment by going through the applicant’s belongings? e. Was the notice to terminate the tenancy retaliatory? Analysis Was there a written tenancy agreement put in place with respect to the premises in breach of the RTA?
- Section 13 of the RTA says there must be a written agreement in place for a residential tenancy. Section 13A sets out what the agreement must contain. The requirements are extensive. Section 13A(1A) provides that there needs to be a statement provided regarding insulation (the statement).
- Section 13(1F) provides that it is an unlawful act not to provide the statement.
- I find that there was no tenancy agreement in place. None was produced. The landlord said they prepared an agreement but this was not a tenancy agreement, it was a flat sharing agreement. Even then, it was not produced.
- There was therefore no tenancy agreement containing the statement.
- The tenant seeks exemplary damages.
- The maximum amount that could be awarded for exemplary damages is $500.
- Exemplary damages are designed to punish and to deter. They are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
- Exemplary damages 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.
- Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if an 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.
- It is established and settled law that the Tribunal must take into account the intent of the party against whom the order for exemplary damages are sought: 1 Before an award of 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 the act and deliberately set about to commit it.
- That there must therefore be evidence of actual intention on the part of the landlord (as opposed to mere negligence) has been accepted in several District Court decisions as being the touchstone. 2
- I accept the landlord was genuinely wrong about whether this had to be a flat sharing agreement or a residential tenancy. Via my earlier decision they are now aware of the correct legal position.
- I cannot locate any other tenancy Tribunal decisions regarding this landlord.
- An appropriate award in this case is $100
- I take into account the landlord’s explanations. I consider that a mitigating factor here is that the landlord did not in this case set out to avoid their obligations under the RTA.
Was the bond was deposited at the Bond Centre?
- Section 19 of the RTA says that a landlord’s obligation is to put the Bond at the Bond Centre.
- The landlord accepts they did not do this, but says it is for the reason they were of the view this was a flatting situation.
- I apply the foregoing law and legal principles.
- For the foregoing reasons, I consider the failure not to be intentional.
- Lodging the bond however is an important part of the role of a landlord. The bond is the tenant’s money.
- The maximum amount that can be awarded by way of exemplary damages is $1000. I consider $300 to be an appropriate award. 1 See Chief Executive ex Parte Edmonson v Walls, North Shore Tenancy Tribunal 548/92, 29 June 1993 at [20]. 2 See, for example, AI Property Managers Ltd v Duggan [2021] NZDC 9168 and TMT New Zealand Ltd v Sweeney [2021] NZDC 16182. Was the landlord in breach of their obligations of maintenance and repair under s 45 of the RTA as a result of: a) the bed, which came with the premises, had fleas. This was not replaced immediately after the tenant complained about it. b) The flooding issue c) The snails and insects. Relevant law: The Landlord’s obligations of maintenance and repair
- Under s 45 of the RTA, a landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. A landlord must also comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. 3
- The obligation of the landlord to provide premises in a reasonable state of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage (see Barfoot & Thompson v Casey. 4 ) Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. 5 The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair. 6
- I find that the broken pipe that led to the water issue over a 24 hour period was not a breach of the landlord’s obligations because it was repaired immediately.
- I find that the condition of the bed was such that it fell below the standards and obligations of repair and maintenance. The condition of the bed meant the landlord was in breach of their obligations under the RTA.
- I also accept the tenant’s evidence about the snails. There are photographs of them and the landlord does not deny it. There must have been gaps under the doors in order for the snails to get in. I reject the landlord’s evidence that they come in on shoes.
- The existence of the snails has meant the landlord breached their obligations under s 45.
- The maximum amount by way of exemplary damages that can be awarded is $4000. I deal with this issue by fixing a global sum for these breaches. The 3 Section 45 of the RTA 4 DC Auckland CIV 2005 004 1762, at [28] 5 S 40(1)(d) of the RTA, Vu v Hutchings [2016 ] NZTT 4054247, at [13] 6 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009 085 1431, at [15] District Court in MBIE v Hillis Shearing Ltd 7 has recently concluded that a global approach to exemplary damages is to be taken in the case of the landlord’s obligations under 45(1).
- I consider $500 an appropriate sum to award in favour of the tenant, applying the principles above.
Was the landlord in breach of the obligation of quiet enjoyment?
Relevant law
- 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) RTA.
- 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.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds 8 .
- This was another aspect of the claim where it was very hard to determine what had taken place. Each party believes the other to be lying.
- Having considered all evidence, I conclude there is not enough corroborating evidence here that the landlord went through all the tenant’s belongings and removed items.
- There is also no corroborating evidence of the items that were actually removed or destroyed, such as photographs proving they existed, or what those items cost when they were bought, how old they were and other evidence that might have corroborated this aspect of the claim.
- The tenant claimed that the landlord came into his premises on two occasions and did the plumbing work when he was not there, having told the landlord to wait until he came home.
- The landlord denied this and said the plumber did the work, and that he came into the premises through the carport door, which had been left unlatched by the tenant as agreed. The tenant claimed there was no plumbing invoice evidence.
- I dismiss this claim for lack of adequate corroborating evidence. The claim has not been proven by the tenant. This claim largely turns on the landlord’s word against the tenants. In the absence of cogent corroborating information that the 7 MBIE v Hillis Shearing Ltd [2024] NZDC 207583. 8 CIV-2009-019-001524, DC Hamilton, 26 February 2010 landlord entered the premises without permission I must find that the claim has not been proven.
Was the termination notice retaliatory?
Relevant law
- Section 54 of the RTA provides: 54 Tribunal may declare retaliatory notice of no effect (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.
- Section 51 of the RTA provides that the minimum period of notice is 42 days where the owner requires the premises as the principal place of residence of the owner or any member of their family, where the landlord customarily uses the premises or has acquired the premises for occupation by employees of the landlord, and where ethe owner is required under an unconditional agreement for the sale of the premises to give the purchaser vacant passion and, in any other case, 90 days.
- For a notice to be declared retaliatory, the tenant must prove that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA.
- Giving a termination notice which is declared to be retaliatory is an unlawful act.
- The essential aspect of a retaliatory notice is that it is issued in response to a tenant asserting a right or making a complaint but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right or making a complaint. 9
- The termination notice did not comply with the RTA. It only gave two weeks’ notice. This was done because the landlord considered the agreement to be a flat sharing 9 See Chief Executive, MBIE v Hau [2021] NZ TT[event location suppressed] 4315620, at[40] agreement. Other legal requirements regarding the notice would have meant it had to be longer.
- I consider it is very hard for me to conclude that it was in response to any issues the tenant was raising. There is not enough adequate corroborating evidence in my view.
- The tenant does however have a right to damages here. This is because the notice was entirely invalid. It only gave two weeks’ notice. It did not comply with the provisions of s 51 of the RTA. A longer notice period ought to have been given. The tenant was insisting he had four weeks and his calculation was accurate because he had given four weeks notice.
- Working out what sum of money should be awarded is difficult, because the tenant was leaving anyway. The difficulty is compounded because the dispute about the notice period appears to have then contributed to the way in which the tenancy ended when the tenant left the premises on 2 October, accompanied by the police.
- I consider that a reasonable compensation for the tenant, who had to spend time dealing with the Police and then had to arrange for a friend to uplift his belongings should be two weeks rent, or $640. I consider this sum adequately compensates the tenant.
- I am awarding the tenant name suppression in view of the fact he has been successful and I am also awarding him return of the filing fee of $28.