Published tribunal order
Tenancy Tribunal case 5138240 — Exemplary damages at Unit/Flat Unit 13, 33 Mount Street, Auckland Central,
Decided 7 Apr 2025 · Published 7 Apr 2025 · Application 5138240
- 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’s name.
- Shopezy Nz Limited - As Agent For The Landlord must pay [The tenant/s] $1,072.00 immediately.
Reasons
- Both parties attended the video hearing.
- The tenant has applied for refund of the bond. The landlord accepts that the tenant paid the bond to the landlord at the commencement of the tenancy and further that the landlord failed to pay that bond to the Bond Centre. The landlord is to pay the bond of $545.00 to the tenant immediately. The original bond sum was $585.00, but the parties had agreed in a reduction of $40.00 to cover cleaning costs.
- [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 admits the failure to lodge the bond. I find 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) RTA).
- A bond is the tenants’ 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.
- 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, 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 other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
- The landlord was unable to provide any satisfactory explanation for the non- lodgement of the bond and is an experienced landlord. The landlord says that this is the first occasion that they have been before the Tribunal for failing to lodge a bond. In those circumstances, the landlord is ordered to pay exemplary damages of $500.00.
- As [The applicant/s] has wholly succeeded with the claim I must order the landlord to reimburse the filing fee.
- The tenant applied for name suppression. The tenant has been wholly successful in this hearing and suppression of the tenant’s name is ordered.