Published tribunal order
Tenancy Tribunal case 5126551 — Tenancy dispute at 7 Matatahi Road, Flat Bush, Auckland 2019
Decided 28 May 2025 · Published 28 May 2025 · Application 5126551
- Boarding House
- Cleanliness
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
- Leonardo Barbosa Porto must pay [The tenant/s] $777.00 immediately, calculated as shown in table below.
- All other claims are dismissed.
Reasons
- Both parties attended the hearing.
- On 28 March 2025, the Tribunal granted a rehearing but only to hear the following: -Tenant’s claim for the bond. -Exemplary damages for bond not being lodged. -Compensation for lack of cleanliness.
- The landlord has filed a cross application and now seeks the following: -Bond of $750.00 for lost rent. -Exemplary damages for various alleged behaviours of the tenant.
- The onus is on both parties to prove their claims on the balance of probabilities. Bond – exemplary damages
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- 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 Residential Tenancies Act 1986.
- The landlord did not lodge the bond therefore they have committed an unlawful act.
- Where a party has committed an 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 do not find it ‘just’ to award exemplary damages in this case. Both parties initially signed up to a ‘Flatmate Agreement’ and the landlord maintained his belief throughout various Tribunal hearings that this was a flatting arrangement. The Tribunal has since declared this to be a boarding house tenancy.
- I find that the landlord lacks the requisite intent to award exemplary damages. I accept that he always believed this was a flatting arrangement and he was not therefore required to lodge the bond.
- Accordingly, the claim for exemplary damages is dismissed. Did the landlord fail to ensure the facilities were in a reasonable state of cleanliness?
- The tenant claims that the landlord did not ensure that ensure that the facilities of the premises are in a reasonable state of cleanliness at all times as required by section 66I(1)(a) RTA). The tenant seeks $400.00 compensation.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 66(4) and Schedule 1A Residential Tenancies Act 1986.
- While I accept that the photographs provided by the tenant show that the toilet was not clean, the bathroom was untidy, and there was a cockroach, this is only a snapshot in time. Although I accept this was annoying and inconvenient for the tenant, a test of reasonableness must be applied. The Tribunal must determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities (s.85(2) RTA).
- It is not reasonable to expect the landlord to check if the toilet has been flushed or cleaned after every use. A photograph of a single cockroach is not determinative of cleanliness. This was a shared bathroom, and the tenant has not provided sufficient evidence to prove that the landlord failed to keep the facilities in a reasonable state of cleanliness generally throughout this tenancy.
- This part of the claim is not proven and must be dismissed. Cross application Is the landlord entitled to $750.00 for lost rent?
- The landlord says the tenant did not return the keys at the end of the tenancy and he was unable to rent the room for 4 weeks. The landlord says he employed a locksmith to change the locks, but he is not claiming compensation.
- I find that the landlord is not entitled to any lost rent. While it is not disputed that the tenant failed to return the keys, the landlord could have changed the locks as soon as the tenant moved out. I find that he has failed to mitigate any potential loss. The claim is dismissed.
Is the landlord entitled to exemplary damages?
- The landlord referred to a number of alleged behaviours by the tenant during this tenancy, but he was unable to establish any unlawful act under the RTA.
- Accordingly, this part of the landlord’s claim is not proven and must be dismissed. Filing fee
- Because [The applicant/s] has partly succeeded with the claim, the landlord must reimburse the filing fee. Name suppression
- Both parties claimed name suppression.
- Section 95A RTA provides that the Tribunal must order suppression if the party applying for it has been wholly or substantially successful in the proceedings.
- It is arguable that the tenant has been substantially successful in her claim for the bond therefore it is likely she is entitled to an order for suppression as of right.
- The landlord has not been successful therefore he is not entitled to an order for suppression as of right.
- The Tribunal may also, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published (section 95A(4) RTA).
- Taking into consideration the parties’ interest, alongside that of the public interest, I find that public interest considerations supporting the principle of open reporting outweigh the landlord considerations. Therefore, I decline the application for landlord name suppression.