Published tribunal order
Tenancy Tribunal case 5140992 — Exemplary damages at 106 Ennis Avenue, Pakuranga Heights, Auckland 2010
Decided 18 Feb 2025 · Published 18 Feb 2025 · Application 5140992
Tenant favoured
- Exemplary damages
- Cleanliness
Order
- Jerry Jia must pay Brett Hu $1,069.96 immediately as set out in the table below.
Reasons
- Both parties attended the hearing. Mr Hu was assisted by an interpreter.
- There were two preliminary issues to be decided in this application before the substantive issues could be decided; a. whether or not the application falls within the jurisdiction of the Tenancy Tribunal, and b. whether or not the parties had contracted into a residential tenancy agreement.
- At the hearing today the tenant made the following claims; a. Refund of the bond, b. Reimbursement for move in and move out costs, c. Reimbursement for cleaning products, d. Reimbursement for curtains, e. Reimbursement for filing fee and filing fee for claim at Disputes Tribunal. Applicant’s burden of proof
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. One of these standards is that it is for the party bringing the application to establish their claims on the balance of probabilities. That means the party bringing the claim 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 the is burden.
- As noted by the District Court in Kaipo 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 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.
- If the claim is not established to the balance of probability, it must be dismissed. Jurisdiction
- Prior to making an application to the tenancy Tribunal, the tenant applied to the Disputes Tribunal with the same claim. The Disputes Tribunal declined to hear the application and referred the tenant to the Tenancy Tribunal.
- Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded. Because of this, applications made to the Disputes Tribunal that may involve a residential tenancy claim, are referred to the Tenancy Tribunal for the issue of jurisdiction to be decided in the first instance. See section 77(1) of the Residential Tenancies Act, 1986 (the “RTA”.)
- Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises,’ ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement.
- Section 10 RTA provides that where a party to proceedings contends that the RTA does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
- When determining whether the RTA is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied. Harding v Schellevis, Tan and Caroto [2021] NZHC 1265 (“Harding”)
- In Harding, the High Court considered on appeal whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs.
- The ground floor had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
- The granny flat had been previously rented as a separate dwelling. However, in 2015 the City Council advised the owner that due to the lack of a firewall, it could not be tenanted separately. From that time on, the owner entered into house-sharing agreements.
- The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.
- The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat.
- The Hight Court found that the premises was the granny flat and not the entire dwelling. It gave several reasons: a. More than one premises can be found within a larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
- The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant.
- In the tenant’s application before the Tribunal today, the parties agreed that the tenant’s premises had the following features: a. A separate entry, (through a laundry) b. A fully self-contained premises including kitchenette, bathroom, bedrooms, living area and laundry, c. No need for the tenant or the occupants of the rest of the house to ever come in contact with each other.
- The tenant and the occupants of the rest of the house were not known to each other.
- The landlord pointed out that he made it clear at the beginning of the agreement that the arrangement was a flat-sharing arrangement and not a tenancy agreement. He also submitted that the fact that the tenant paid rent which included power, water and internet, this points to the arrangement being a flat sharing rather than a tenancy agreement. He also pointed out that he supplied appliances and furniture for the premises.
- When I consider the separateness of the premises from the rest of the building, and the separation the tenant had from the occupants of the rest of the building, I arrive at the conclusion that this was not a flat-sharing arrangement. That is to say that despite the landlord’s intention, the substance of the agreement in my view, was a tenancy agreement.
- This means the Tenancy Tribunal has jurisdiction to hear this claim.
Was there a tenancy agreement?
- The tenant stated that he paid the bond of $400.00 to the landlord on 8 October 2024, received a key from the landlord on 15 October 2024 so he could enter the premises to do cleaning prior to the tenancy beginning on 1 November 2024. However prior to the tenant moving in to the premises, the tenant and the landlord had an argument, and the tenant subsequently never moved in.
- The landlord did not dispute these facts.
- The tenant claims that the landlord told him that if he did move in, he (the landlord) would give him two weeks’ notice.
- The landlord denies saying this and says that the tenant had a key and was never prevented from taking up the tenancy. He says the premises were vacant for two weeks after the tenant’s start of tenancy date, and he only re-tenanted the premises after it became clear that the tenant wasn’t going to move in.
- The tenant has not persuaded me on the balance of probabilities that he was prevented from taking up the tenancy. I determine that a tenancy began on 1 November 2024 as was agreed. The Bond
- The tenant has applied for refund of the bond. The landlord has not filed a counterclaim with Tenancy Services.
- Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
- The tenant claims the landlord did not lodge the bond with the Bond Centre.
- 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 accepts that on receipt of the bond in October 2024 he did not lodge the bond with the Bond Centre. The reason for this is because he believed he wasn’t required to as the arrangement was not a tenancy agreement.
- I find the landlord has committed an unlawful act as a matter of law, and the failure was intentional.
- 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.
- Because a bond is money that belongs to the tenant until or unless a landlord is successful in making a claim against it, it is appropriate that the money is protected against any circumstances that could jeopardise the security of this money. There is a high public interest in landlords having systems in place that ensure they comply with their lawful obligations. In this instance the landlord has refused to refund any of the bond to the tenant for nearly four months because the tenant has not returned a key. I consider this to be a moderately serious breach of the tenant’s right to have his bond refunded unless a claim is made by the landlord.
- I am not aware of the landlord having breached their obligation in this way before. I consider an award at the lower end of the spectrum of $350.00 to be appropriate in the circumstances. Moving costs
- The tenant claimed reimbursement for moving costs. He stated that the approximate cost to him was $1,600.00. No invoices were provided prior to the hearing. At the hearing the tenant showed a record of two bank transfers, one for $545.35 and one for $520.15. It was not possible to see who the recipient of these transfers was or what the payments were for.
- The tenant says he needed to pack up his belongings to move. However the tenant did not move into the premises.
- When I consider the information the tenant has provided the Tribunal for this claim, I find the tenant has not provided enough information or particulars to prove his claim. Cleaning costs and curtains
- The tenant stated that the landlord agreed to pay him for cleaning products and his time for cleaning. The tenant provided receipts for the cleaning products he purchased but no information in support of the agreement between himself and the landlord regarding cleaning.
- The landlord said that when there was still two weeks to run before the tenancy began, the tenant said he would like to do the cleaning himself. The landlord consented. He denies ever agreeing to pay the tenant for the cleaning products or for his time.
- The tenant provided photographs that show the premises was in a very dirty condition at the time he gained entry to the premises.
- The tenant’s evidence and the circumstances are sufficient to prove to me on the balance of probabilities that the landlord agreed to reimburse the tenant for cleaning products. These are modest expenses and the landlord would have been aware that he was getting a good deal from this arrangement.
- I find the claim for reimbursement for cleaning products proved.
- I find it less likely that the landlord would have agreed to an open-ended arrangement to reimburse the tenant for his time spent cleaning. The tenant has not provided any supporting evidence for this claim. I do not find this claim proved.
- It is not disputed the tenant bought and installed curtains at the premises that cost him a total of $119.00. He stated the curtains that had been installed were old and dirty and were not worth repairing. The tenant says that because he never moved into the premises he did not recover the curtains. He is seeking reimbursement for the curtains, and he has provided invoices to prove the amount spent.
- The landlord says he told the tenant the tenant could install new curtains if he wanted, but the old curtains were fine and did not need replacing. The landlord stated that the curtains the tenant installed are still hanging in the premises.
- From the oral evidence given by the tenant and the photographs the tenant produced showing the rest of the premises which I accept was dirty and in poor condition, I am persuaded that the curtains were in need of replacing.
- As the landlord has made no attempt to return the curtains to the tenant in the three months since the tenancy ended, I consider it reasonable that he reimburse the tenant for the cost of the curtains. This claim is proved. Filing fee and filing fee in Disputes Tribunal
- Because Brett Hu has substantially succeeded with the claim I have reimbursed the filing fee for his applications to the Disputes Tribunal and the Tenancy Tribunal.