What was Tenancy Tribunal case 5126529 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 5126529?

Property Damage: $1,000.00 awarded to tenant; Failure to maintain: air conditioner…: $100.00 awarded to tenant; Failure To Maintain: Toilet: $100.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5126529?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 5126529?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11583501-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5126529 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 5126529?

Property Damage: $1,000.00 awarded to tenant; Failure to maintain: air conditioner…: $100.00 awarded to tenant; Failure To Maintain: Toilet: $100.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5126529?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 5126529?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11583501-Tribunal_Order_Redacted.pdf.

Unit/Flat G06, 85 Wakefield Street, Auckland Central, Tenancy Tribunal Case 5126529 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5126529 — net $2,627.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund of bond	$1,400.00	Refund of bond
Exemplary damages: failure to lodge bond	$1,000.00	failure to lodge bond
Failure to maintain: air conditioner remote	$100.00	Failure to maintain: air conditioner remote
Failure to maintain: toilet	$100.00	Failure to maintain: toilet
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,627.00
Total payable by Landlord to Tenant	$2,627.00

Claims and awards in Tenancy Tribunal application 5126529 — net $2,627.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund of bond	$1,400.00	Refund of bond
Exemplary damages: failure to lodge bond	$1,000.00	failure to lodge bond
Failure to maintain: air conditioner remote	$100.00	Failure to maintain: air conditioner remote
Failure to maintain: toilet	$100.00	Failure to maintain: toilet
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,627.00
Total payable by Landlord to Tenant	$2,627.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Tetra Serviced Apartment Hotel By Castle Acting Agent For Premier Professional Services must pay [The tenant/s] $1,027.00 immediately.

Reasons

Both parties attended the hearing.
The tenant claims that the tenancy should have ended on 4 January 2025 and seeks repayment of $400.00 in overpaid rent. The tenant also seeks a refund of their bond, compensation, exemplary damages and reimbursement of the filing fee.
At the beginning of the hearing, the tenant made a number of complaints about the behaviour of the landlord, but was unable to identify what breach of the tenancy agreement or Residential Tenancies Act 1986 (RTA) such behaviour amounted to.
The Tribunal is not a forum of general complaint. It hears and determines alleged cases of alleged breaches of the RTA and then decides what should happen as a result.
I have considered the claims raised by the tenant that amount to a breach of the tenancy agreement or RTA as part of this decision.
As the applicant, the tenant 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. OVERPAID RENT FOR PERIOD 04/01/2025 – 12/01/2025
This tenancy began on 24 November 2024. It was a fixed-term tenancy to 24 May 2025.
On 7 December 2024, the tenant gave notice to end the fixed term tenancy on 4 January 2025. The tenant claims they were entitled to do this under Clause 7 of the tenancy agreement. Clause 7 reads: Breaking a Tenancy during a Fixed Term a. They [the tenant] may request to break a fixed term tenancy agreement at any time by giving notice in writing to the Property Manager. b. Rent is payable until a new tenant begins paying rent. The Property Manager will add the property to the vacancy list; however, the tenant may conduct additional advertising at their own cost. c. The replacement tenant must apply for, and must be approved by Castle Management Limited. d. A Break Lease fee is payable to the Property Manager, equal to one-week rental, regardless of the source of the replacement tenant.
I do not agree with the tenant that Clause 7 of the tenancy agreement allows the tenant to end the fixed-term tenancy by giving written notice to the landlord. It is quite clear in its wording that Clause 7 allows the tenant to request or ask the landlord to end the fixed-term tenancy early. The landlord may agree or disagree with the request, although the landlord should be aware that consent must not be unreasonably withheld or attached to unreasonable conditions. 1
Clause 7 mirrors sections 43B and 44A of the RTA, which state: 43BAssignment of tenancy by tenant (1) A tenant may, at any time during the tenancy, assign the tenancy – (a) With the prior written consent of the landlord; and (b) In accordance with any reasonable conditions attached to that consent by the landlord. ... 44A Recover of expenses incurred by landlord (1) A landlord who consents to an assignment under section 43B...is entitled to recover from the outgoing 1 Residential Tenancies Act 1986, section 43B(6)(a) and (b). tenant any expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession, or termination.
I find that Clause 7 did not permit the tenant to end the fixed-term tenancy by providing notice to the landlord in writing.
The tenant claims that in any case, the landlord purposefully delayed finding a new tenant.
The tenant gave notice to end the tenancy on 7 December 2024. The landlord approved a new tenant to take over the tenancy on 13 January 2025. That is a period of 5 weeks. A new tenant is usually required to give notice to end their current tenancy before commencing a new one. The landlord claims that is what occurred here.
In all the circumstances, I do not consider 5 weeks to be an unreasonable amount of time for the landlord to have advertised, vetted, and found a new tenant.
I find the tenancy ended on 12 January 2025. The tenant is required to pay rent up to this date.
The tenant’s claim that they should be refunded $400.00 in overpaid rent is dismissed.

FAILURE TO LODGE BOND

The law

Section 19(1)(b) RTA states: The landlord shall, within 23 working days after the payment [of the bond] is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
Failure to lodge a bond in accordance with section 19(1)(b) RTA is an unlawful act for which exemplary damages up to $1,500.00 may be awarded. See sections 19(2) and Schedule 1 RTA.
Section 109 of the RTA 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 Tribunal2 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. Evidence and submissions of the parties
The tenant paid a bond of $1,400.00 to the landlord at the beginning of the tenancy.
The landlord accepts that they did not lodge the bond within the required timeframe. 2 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92
As at the date of the hearing, the landlord has not lodged the bond.
The landlord claims the tenant did not sign the bond lodgement form and they did not know they were able to lodge the bond without the tenant’s signature.
The tenant claims they were never sent the bond lodgement form to sign by the landlord. Analysis
The first issue I must determine is whether the landlord acted intentionally in failing to lodge the bond.
The landlord is a professional landlord who looks after a number of tenancies within the building to which this tenancy relates. Managing rental properties is the landlord’s business and they are experienced in this regard. This leads me to question the genuineness of the landlord’s claim that they were not aware that they could lodge a bond without the tenant’s signature on the bond lodgement form. I do not consider the landlord can claim naivety in the same way a lay landlord who manages one or two rental properties can.
The landlord clearly turned their mind to the need to lodge the bond, as they completed and signed the bond lodgement form themselves.
On the balance of probabilities, I find that the landlord acted intentionally in failing to lodge the bond.
I now turn to consider the factors in section 109 RTA.
By failing to lodge the bond, the landlord has deprived the tenant of any certainty in receiving their money back. At the hearing, the landlord gave evidence that the tenant’s bond was in a trust account and could be returned to the tenant immediately following the hearing. I make it unequivocally clear to the landlord that I expect this to occur. The tenant is returning home to France imminently and is understandably anxious to receive all money owed to them before this occurs.
There is a high public interest in ensuring that landlord’s lodge bonds. A bond does not belong to a landlord. It belongs to the tenant. The requirement to lodge a bond ensures that it is preserved to be immediately returned to the tenant at the end of the tenancy unless the landlord has a claim against it which they are able to prove. Landlords must be deterred from treating bonds like their own money and encouraged to lodge them.
In all of the circumstances, I find it is just to make an award of exemplary damages for the landlord’s failure to lodge the bond in this case.
The bond has not been lodged for a total of 113 days. The landlord is a professional landlord who manages a number of tenancies. Considering these factors, I order the landlord to pay the tenant $1,000.00 in exemplary damages.

FAILURE TO MAINTAIN

The law

Section 45(1)(b) RTA states: (1) The landlord shall – ... (a) 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; and ...
It is well settled that a landlord’s obligations under section 45(1)(b) RTA are to investigate and repair a defect brought to their attention within a timeframe that is reasonable in the circumstances. As to what is a reasonable will depend upon the gravity of the problem and objective attempts made by the landlord to investigate and remedy the problem. 3
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach. 4 However, notice from the tenant is not required if the landlord knew of the need to repair or the need for repair was apparent from observation. 5
There is a failure to repair if the repair is ineffective, non-compliant or unsafe. 6 Evidence and submissions of the parties
The tenant claims the landlord failed to remedy the following issues within a reasonable timeframe: a. Missing remote for air conditioner; and 3 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 4 Brough v Housing NZ Ltd NZTT 1848/1, 27 May 2002 at [13]. 5 Barfoot & Thompson Ltd v Case DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 6 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. b. Leaking toilet.
The tenant gave evidence that the remote for the air conditioner was missing from the beginning of the tenancy and was never replaced. The tenant gave evidence that they brought this to the attention of the landlord at the beginning of the tenancy verbally and again in an email dated 7 December 2024. A copy of the email was submitted.
The tenant also gave evidence that the toilet flush was leaking. The tenant claims it was noisy and a disturbance. The tenant raised the issue with the landlord in the same email dated 7 December 2024.
The tenant gave evidence that the leaking toilet flush remained an issue until the end of the tenancy and nothing was ever done to fix it by the landlord.
The landlord gave evidence that the property was advertised to the tenant as not including air conditioning. The landlord gave evidence that they told the tenant there was no remote for the air conditioner when they completed the viewing with the tenant.
The landlord gave further evidence that a plumber was sent to investigate the leaking toilet immediately after they were notified of the issue by the tenant. The landlord claims the tenant was not present at the time.
The landlord claims the plumber advised that there was no issue with the toilet leaking and that the flush button took a little bit longer than usual to come up once pushed down. The landlord gave evidence the tenant was notified of the plumber’s conclusion over the telephone.
The tenant denies that they were ever notified that a plumber visited the property or the outcome of their assessment.
The tenant denies that the property was advertised as not including an air conditioner and states that it was actively advertised as including this amenity. Analysis
On the balance of probabilities, I find that the property was most likely advertised as including air conditioning.
In the tenant’s email to the landlord dated 7 December 2024, the tenant mentions the missing remote as an issue and records the landlord’s previous advice that they would follow up with the previous tenant as to where the remote was.
The landlord did not submit a copy of any reply email to the tenant. If the room was not advertised as including air conditioning, it would have been a simple fix to reply to the tenant’s email mentioning this.
The tenancy agreement also does not state that air conditioning is not provided as an amenity.
The landlord gave evidence that the property used to be a hotel and the rooms were now rented out as apartments. Hotel rooms generally come with air conditioning.
On the balance of probabilities, I find it more likely than not that the property was advertised as including air conditioning.
The tenant first raised the lack of a remote for the air conditioning unit in writing to the landlord on 7 December 2024. By the time the tenancy ended on 12 January 2025, the remote was still missing. That is a period of 5 weeks, which is an unreasonable length of time.
I consider $100.00 to be a fair amount of compensation the landlord should pay the tenant for failing to provide a remote for the air conditioner. That equates to approximately $20.00 per week, which I consider is reasonable.
On the balance of probabilities, I also find that the landlord failed to investigate and remedy the leaking toilet flush within a reasonable amount of time.
The tenant denies that a plumber ever visited the property. The landlord did not submit any proof in the form of an invoice or written statement from the plumber who apparently attended on 7 December 2024. The landlord gave evidence that the tenant was not present when the plumber attended. The landlord did not submit any evidence of having notified the tenant that the plumber would be visiting in advance. In all the circumstances, I find on the balance of probabilities that a plumber did not visit the property on 7 December 2024.
The tenant reported the issue about the leaking toilet flush in writing to the landlord on 7 December 2024. I accept the tenant’s evidence that by the time the tenancy ended on 12 January 2025, it remained a problem. That is a period of 5 weeks, which is an unreasonable length of time.
I accept the tenant’s evidence that the sound of the toilet was annoying. I note that the tenant was still able to use the toilet and the issue does not appear to have presented a health or safety risk. Therefore, I consider $100.00 to be a fair and reasonable amount of compensation the landlord should pay the tenant for failing to maintain the toilet flush in reasonable state of repair. That equates to approximately $20.00 per week. FILING FEE & NAME SUPPRESSION
Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee and grant their request for name suppression.
The landlord did not apply for name suppression and I can see no basis to order it.

Tenancy Tribunal case 5126529 — Exemplary damages at Unit/Flat G06, 85 Wakefield Street, Auckland Central,

At a glance

Tenancy Tribunal case 5126529 — Exemplary damages at Unit/Flat G06, 85 Wakefield Street, Auckland Central,

At a glance

Award balance

Claims & awards

Order

Reasons

FAILURE TO LODGE BOND

FAILURE TO MAINTAIN

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

FAILURE TO LODGE BOND

FAILURE TO MAINTAIN

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions