Published tribunal order
Tenancy Tribunal case 5172211 — Exemplary damages at Multiple Tenancies
Decided 6 Mar 2026 · Published 6 Mar 2026 · Application 5172211
- Exemplary damages
Party names are redacted in the official published order.
Order
Reasons
- This is an application by The Chief Executive, Ministry of Business, Innovation, and Employment (MBIE) under section 124A of the Residential Tenancies Act 1986 (RTA) in its role as regulator of residential tenancies.
- MBIE has applied for exemplary damages for breaches by the landlord of her responsibilities under the RTA that amount to defined unlawful acts. MBIE also seeks a rent refund because the premises were unlawful premises for residential purposes, witness expenses and the filing fee. The application
- The application was filed in February 2025.
- I heard the application over 2 days in Christchurch on 20 and 21 August 2025. Ms Siania represented MBIE. Ms Fee attended with a support person.
- I heard evidence from 8 witnesses, including the tenants, MBIE investigation staff, and from the principal compliance officer with the Waimakariri District Council (WDC).
- Ms Fee gave evidence as well and had the opportunity to ask questions of all the witnesses.
- I adjourned with directions for the parties to provide further evidence and submissions. The hearing concluded on 4 September 2025. Background
- The background to this application is set out in the statement of facts filed by MBIE which I have largely adopted, but in summary only.
- Ms Fee owns a 40-acre block of land made up of 3 separate titles. One of the properties is in joint ownership.
- There are 2 consented dwellings on the properties and a collection of sheds and other structures.
- The application concerns the following tenancies where Ms Fee was the landlord: •[Tenancy address 1 suppressed] comprising shipping containers (tenancy 1). •[Tenancy address 2 suppressed] (tenancy 2). •[Tenancy address 3 suppressed] comprising a secondary dwelling/large shed (tenancy 3). •[Tenancy address 4 suppressed] comprising a secondary dwelling/red shed (tenancy 4).
- The premises first came to the attention of MBIE’s Tenancy Compliance and Investigation Team (TCIT) around the beginning of 2024 when a TCIT investigator had discussions with another tenant (not part of this application) and became concerned about a tenant residing in a shed on one of the properties owned by Ms Fee.
- The investigator began her investigation on 21 February 2024, the date MBIE ‘became aware’ of possible compliance breaches by the landlord in relation to these tenancies.
- There was some collaboration between TCIT and WDC concerning the state of some of the dwellings on the property being used for residential tenancy purposes. On 28 February 2024 TCIT investigators and WDC staff visited the property at [Tenancy address 4 suppressed] and after discussions with the tenant identified breaches by the landlord of her RTA responsibilities.
- The inspection also alerted the TCIT staff to various sheds and containers that appeared to be occupied as residential premises. TCIT and WDC staff visited the property again on 18 March and 25 March to assess the other dwellings for compliance. Numerous breaches were identified. WDC issued Ms Fee with a notice to fix relating to sanitation, a gas installation, electrical work, and a heating unit.
- MBIE’s investigation of the tenancies established that Ms Fee had breached her statutory responsibilities under the RTA.
- MBIE made the application that is before the Tribunal on 20 February 2025. It seeks exemplary damages on behalf of the tenants for alleged breaches of the RTA that amount to unlawful acts and a refund of their rent based on the premises being unlawful residential premises. It seeks other ancillary orders as well. The breaches alleged by MBIE
- MBIE alleges that Ms Fee as landlord has breached the following provisions of the RTA: •1 breach of section 13 RTA – the failure to provide a written tenancy agreement •4 breaches of section 13A(1), (1A)-(1C) and section 13A(2) RTA – the failure to provide required information in the tenancy agreements (insulation and insurance statements) •3 breaches of section 19(1)(b) RTA – the failure to lodge bonds within the required timeframe •1 breach of section 33(1)(b) RTA – seizing tenant’s goods •2 breaches of section 38(2) RTA – interference with tenant’s peace, comfort, and privacy amounting to harassment •3 breaches of section 45 RTA – a failure to comply with the Healthy Homes Standards (HHS) (2), smoke alarms (2), and obligations in respect of buildings health and safety (3) •1 breach of section 60AA RTA – acting to terminate a tenancy without grounds
- Applying the principle in Ministry of Business, Innovation, and Employment v Hillis Shearing Limited 1 , MBIE seeks the following orders for exemplary damages: •1 breach of the landlord’s section 13 RTA responsibilities - $750.00 1 [2024] NZDC 27583 •4 breaches of the landlord’s section 13A RTA responsibilities - $750 per breach - $3,000.00 in total •3 breaches of the landlord’s section 19(1) RTA responsibilities – 1,500.00 per breach - $4,500.00 in total •1 breach of section 33(1)(b) RTA - $3,000.00 •2 breaches of section 38(2) RTA - $3,000.00 per breach - $6,000.00 in total •3 breaches of the landlord’s section 45 RTA responsibilities - $7,200.00 per breach - $21,600.00 in total •1 breach of section 60AA RTA - $6,500.00
- In addition, MBIE seeks an order for the refund of all the rent because the premises were unlawful residential premises. Issues
- The Tribunal must decide these issues: •Has the landlord committed the breaches of the RTA alleged by MBIE? •If so, should the Tribunal award MBIE (for the tenants) exemplary damages? •Should the Tribunal refund all or any of the rent because the premises were unlawful residential premises? Relevant legal considerations Statutory provisions
- Section 13 RTA provides that the landlord must ensure that the tenancy agreement is in writing. A failure to do so is an unlawful act (and an infringement offence).
- Sections 13A(1), 1A, 1CA, 1CB and (2) RTA set out what information must be contained in a tenancy agreement. The failure to comply with those requirements in an unlawful act.
- Section 19(1) RTA sets out the duties of a landlord on receipt of the bond. A failure to comply with those requirements is an unlawful act.
- Section 33 RTA provides that a landlord shall not be entitled to seize a tenant’s goods as security for or in payment of rent, or for any other reason arising from the tenancy. Seizing a tenant’s goods is an unlawful act.
- Section 38(2) RTA provides that a landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant. A contravention of that section in circumstances that amount to harassment of the tenant is an unlawful act.
- Section 45 RTA sets out a landlord’s responsibilities. Included among them are the responsibility to comply with all requirements in respect of smoke alarms, comply with the HHS, and comply with all requirements in respect of any buildings, health, and safety under any enactment. A failure to comply with these responsibilities is an unlawful act.
- Section 60AA RTA provides that a landlord commits an unlawful act if they give or purport to give a notice to terminate a tenancy knowing they are not entitled under the Act to give the notice.
- Section 78A RTA deals with unlawful residential premises. If the Tribunal finds that the premises were unlawful residential premises it can order a full refund of rent or an amount it considers fair to deduct from the rent paid.
- In Hillis Shearing Limited the District Court confirmed that for the purpose of exemplary damages for multiple breaches of the same unlawful act provision, the Tribunal must order exemplary damages as a global order, not for each individual breach. So, for example, where there are multiple breaches of the landlord’s section 45 RTA responsibilities, the Tribunal can only make one award of exemplary damages for each tenancy, not separate awards for each category of breach. Exemplary damages
- 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, with intent, 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.
- In Birch v Ōtautahi Community Housing Trust 2 [2020] NZDC 17667, the Court said this: 2 [2020] NZDC 17667 In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: 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 to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. The hearing
- As I have noted, I heard evidence from 8 witnesses – 4 tenants, 3 TCIT staff members, and the principal compliance officer from the WDC. Ms Fee examined each witness.
- Both Ms Siania and Ms Fee made submissions.
- I have considered everything placed before the Tribunal even if I do not specifically refer to it. Discussion
- First, the Tribunal makes the following observation. MBIE has an important statutory role as regulator of residential tenancies. It is particularly concerned to protect vulnerable tenants, those whose circumstances generally and their financial constraints mean that they have limited choices in the rental market.
- Tenants such as these can often fall prey to landlords who like to present themselves as doing some kind of social service, providing accommodation to people they believe would otherwise be homeless.
- The impression I gained from Mr Fee is that she was doing some of these tenants a favour and it was she, not they, who had reason to feel aggrieved.
- Ms Fee submitted that MBIE’s investigation was commenced out of time, did not involve her as it should have, and saw the TCIT staff trespassing on her property in a determined effort to prosecute her.
- The Tribunal did not find those submissions to be based on fact, or otherwise credible. The Tribunal is satisfied that MBIE’s application was filed within the timeframe required, not longer than 12 months after it became aware of the tenancies involved in this investigation. While it was an earlier call by another tenant that first alerted TCIT, that tenant and their tenancy was not part of this investigation at all. I find that there is no time bar to MBIE bringing this application. It was properly brought within the applicable provisions of the RTA.
- MBIE has the statutory authority to investigate and to require the disclosure of information. Nothing placed before the Tribunal would establish a case of trespass as Ms Fee alleged. Even if it did, a claim of trespass is not within the Tribunal’s jurisdiction.
- Having considered all the evidence the Tribunal observes that MBIE’s investigation was thorough, fact based, and in line with its important role as regulator. That Ms Fee feels offended by it only reinforces the Tribunal’s observation that she sees herself as the victim, an otherwise kindly person who was just trying to help tenants who needed somewhere to live.
- That some of the tenants might have enjoyed living where they did does not act as a defence. Ms Fee’s actions exposed the tenants to potential harm; and the evidence establishes that the premises were clearly unlawful residential premises. Desperate people will sometimes settle for what they can find. But the law provides protections for them.
- Once alerted to the unlawful nature of the dwellings, Ms Fee acted quickly to dismantle/demolish some of them. That in turn led her to move some tenants to another of the premises, then wrongly terminate that tenancy.
- It also resulted in what might be called a home invasion by her daughter and patched gang members. The affected tenants gave chilling evidence of what occurred and how it has significantly emotionally affected them. Ms Fee denied any knowledge of that event, or involvement with it. I did not find her evidence convincing. I find that she at least permitted an interference with the reasonable peace, comfort, or privacy of those tenants in their use of the premises in such a dramatic and violent manner as to amount to harassment.
- Another tenant also experienced harassment once the MBIE investigation was under way. The landlord insisted he sign an agreement stating that he was only a guest paying no rent. She then continued to text him over compliance issues, and her potential liability, putting pressure on him.
Has the landlord committed the breaches of the RTA alleged by MBIE?
- The evidence produced by MBIE establishes on the balance of probabilities (and beyond) that Ms Fee has committed the unlawful acts MBIE alleged.
- The photos produced in evidence are damning. While some parts of some premises appear to be in good order, other structures are woeful.
- The Tribunal finds that Ms Fee failed to comply with her responsibilities to provide a written tenancy agreement (1 tenancy); to provide all the required disclosures (4 tenancies). She failed to lodge bonds within the required timeframe (3 tenancies). She had lodged bonds before; she knew what was required.
- The Tribunal finds that the landlord seized the goods of one tenant (his tools) as she believed he had taken her belongings while packing up. She held his goods as security.
- The Tribunal finds Ms Fee caused or permitted the interference with the tenants’ reasonable peace, comfort, or privacy on (at least) 2 occasions amounting to harassment. One of the instances caused by her daughter (which I find was probably permitted by her) was extremely frightening for the tenants concerned.
- The Tribunal finds that Ms Fee breached her section 45 RTA responsibilities by failing to comply with all requirements in respect of smoke alarms, comply with the HHS, and comply with all requirements in respect of any buildings, health, and safety under any enactment in respect of 4 of the tenancies.
- The Tribunal finds that Ms Fee unlawfully gave notice to terminate one tenancy. The landlord offered the tenants a 12-month fixed term tenancy following their agreement to move from one premises to another. She then gave various reasons for terminating that tenancy when she had no lawful grounds to do so.
- The Tribunal finds that the premises were unlawful residential premises for the duration of the tenancies, not consented for residential tenancy use. Should the Tribunal award MBIE (for the tenants) exemplary damages?
- I have no hesitation in finding that Ms Fee acted with intent when committing the breaches of her statutory responsibilities alleged by MBIE and now proved. Her suggestion that she was just trying to help desperate people was not convincing. Rather, she was maximising rental income from renting out unlawful residential premises that were not compliant with health and safety regulations, the HHS, and in one case had no installed smoke alarm.
- Those matters go to the heart of tenant safety. Had there been a fire, or had some other event occurred due to faulty fittings, the outcome might have been tragic.
- Ms Fee’s actions once the investigation commenced do her no credit. And the home invasion by her daughter and gang members, which I find was something she permitted, was a frightening event. The witnesses who described that event were tearful and still heavily impacted by it.
- The landlord’s actions with these premises were obviously against the interests of the tenants who lived there and had effects on them. The evidence they gave set out how each had been affected.
- Landlords who behave in this manner, apparently unconcerned about their statutory responsibilities as a landlord, should be sanctioned. Ms Fee’s contempt for the investigation process was evident. But for the regulator’s investigation here it is likely the tenancies would have continued. It is against the public interest for landlord’s to behave in this manner. MBIE’s role as regulator is an important one for that reason.
- To her credit Ms Fee confirmed that she has not rented any of the premises again; some have been decommissioned or demolished.
- For the section 13 RTA breach – the failure to provide a tenancy agreement – I award exemplary damages of $100.00
- For the 4 tenancies where the required disclosure information was not provided in the tenancy agreement, I award exemplary damages of $200.00 for each tenancy, a total of $800.00.
- For the failure to lodge bonds in the timeframe required for the 3 tenancies where that occurred, I award exemplary damages of $500.00 in each case, a total of $1,500.00.
- For the 3 tenancies where the landlord failed to comply with her section 45 RTA responsibilities I award exemplary damages of $2,500.00 on each tenancy, a total of $7,500.00.
- For the harassment of tenants, I award exemplary damages of $1,000.00 - $200.00 for the landlord insisting that one tenant sign an agreement that he was a guest who paid no rent and $800.00 for the home invasion.
- For the unlawful notice (or purported notice) of termination of the tenancy of one of the tenants I award exemplary damages of $500.00.
- For the unlawful seizing of a tenant’s goods, I award exemplary damages of $800.00. Rent refund
- The Tribunal finds that the premises at issue in this application were unlawful residential premises, not consented for residential use. Section 78A RTA provides the Tribunal with a discretion to order a refund of all rent paid or that amount less a deduction that it considers fair.
- Counsel for MBIE has provided a breakdown of the rent paid. It is based on the bank statements Ms Fee provided under a request for documents made under section 123A RTA. (Ex 44-46). In reply, Ms Fee states that she received lower amounts in rent paid. She has also referred to rent arrears owed to her.
- I find that the evidence relied on by MBIE as detailed in its memorandum dated 22 August 2025 is sound and establishes the amount of rent paid.
- I award one third of that rent to be refunded. That amount of refund recognises that the tenants received some benefit from residing at the premises, some enjoyed living there (at least for part of the time), and some premises were better than others, although all were non-compliant and therefore unlawful. MBIE will be able to assign from the total, the amount to be credited to each tenant based on the one-third award made.
- I cannot address the issue of rent arrears and other claimed amounts for outgoings mentioned by Ms Fee. She has no application before the Tribunal. And section 78A RTA prevents a claim for rent arrears where premises are found to be unlawful residential premises in any case. Witness expenses
- MBIE has sought witness expenses of $171.36 pursuant to r13 of the Residential Tenancies Rules 2010 and Schedule 2 of the Witnesses and Interpreters Fees, Allowances, and Expenses Regulations 2023.
- Ms Fee in reply appears not to challenge those expenses. I award the witness expenses as sought. MBIE can apportion them as set out in the memorandum dated 22 August 2025. Result
- Madeleine Fee as landlord will pay MBIE on behalf of the affected tenants exemplary damages of $12,200.00, a rent refund of $16,825.00, witness expenses of $171.36, and the filing fee of 20.44, a total of $29,216.80. Name suppression
- Section 95A(2) RTA provides that the tenants’ names and identifying details must be suppressed. I also suppress the name of the lead TCIT investigator for reasons I need not disclose here other than to state that they relate to that person’s safety distinct from these proceedings.