What was Tenancy Tribunal case 5224632 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 5224632?

Property Damage: $500.00 awarded to landlord; Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 5224632?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 5224632?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12125032-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5224632 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 5224632?

Property Damage: $500.00 awarded to landlord; Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 5224632?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 5224632?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12125032-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5224632 — Exemplary damages

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 5224632. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damages: Failure to lodge the bond	$500.00		Failure to lodge the bond
Stove to damage insurance excess		$500.00	Stove to damage insurance excess
Total award	$500.00	$500.00

All parties attended the hearing.

The tenants have applied for exemplary damages for the landlords’ failure to lodge the bond and the filing fee.

The landlords have applied for compensation for a damaged cooktop and the filing fee following the end of the tenancy. The tenants’ application

The tenants claim the landlords have 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 landlords do not dispute that the bond was not lodged with the Bond Centre. They have committed an unlawful act.

Should exemplary damages be ordered?

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.

Before the Tribunal can consider awarding exemplary damages for an unlawful act, it must first find that the unlawful act was intentional.

The definition of ‘intentional’ in the Tribunal case of Edmondson v Walls North Shore 1993] NZTT, 548/92 at para [38] has been adopted in several District Court decisions: “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 [emphasis added].”

While negligence or carelessness is not sufficient to prove intent, the Tribunal may draw reasonable inferences of intent from all the surrounding facts and any other relevant circumstances (e.g., a general pattern of non-compliance or previous orders for similar breaches). "Intent" includes not only conscious and deliberate acts, but also deliberate and conscious failure to perform an act, sometimes referred to as "wilful blindness".

In the current case the landlords did turn their mind to lodging the bond because they ticked a box in the app they were using which asked if the bond had been lodged. The landlords knew a bond had to be lodged but said they did not know how to do that. It is easy to find out how to lodge a bond. The fact that the landlords did not attempt to find out how to lodge the bond is a conscious failure to perform an act. I am satisfied that the landlords’ failure to lodge the bond falls withing the definition of intentional.

The effect of the unlawful act was that the tenants were concerned about whether their full bond would be returned and whether the landlords would deduct an amount for rent that was not due. The landlords had the benefit of the tenants’ money for a year and could earn interest on it. It is in the public interest that landlords protect tenant’s bond money by securing the bond in the Bond Centre.

Having considered the facts presented I have ordered $500.00 of the maximum $1,500.00 for exemplary damages. This is based on the seriousness of the unlawful act, there being no evidence of a repeated failure to lodge bonds on the part of the landlords and the maximum fine being reserved for the most serious cases. The $500.00 ordered is consistent with other cases where a landlord has not lodged the bond for the first time.

Is the tenant responsible for the damage to the premises?

The landlords claim that the cooktop was damaged during the tenancy. The tenants were the first occupants of the new home. The damage to the cooktop was discovered at the end of the tenancy.

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

I am satisfied that the landlords have proved that the damage happened during the tenancy. The tenants have not proved that they did not carelessly cause the damage.

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.

The landlords stated in the Tenancy Agreement that there was insurance to cover loss. The standard excess for damage was recorded as being $500.00. The landlords said that at the end of the tenancy they discovered there had been a mistake. Insurance provided was only for the building. However, the mistake does not change the liability of the tenants. They have the benefit of what was written in the Tenancy Agreement.

The tenants are liable for $500.00 of the loss due to the damage to the cooktop. This is less than the cost of the replacement cooktop and service fee and accounts for any depreciation in a one year old cooktop. Filing Fee

Because both parties were successful with the applications, no order is made regarding reimbursement of the filing fees. Suppression

The parties have applied for name suppression. Section 95A(1) of the Residential Tenancies Act 1986 provides that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

The parties have substantially succeeded with their claims and therefore name suppression is granted.

Reasons

Claims and awards in Tenancy Tribunal application 5224632. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damages: Failure to lodge the bond	$500.00		Failure to lodge the bond
Stove to damage insurance excess		$500.00	Stove to damage insurance excess
Total award	$500.00	$500.00

All parties attended the hearing.

The tenants have applied for exemplary damages for the landlords’ failure to lodge the bond and the filing fee.

The landlords have applied for compensation for a damaged cooktop and the filing fee following the end of the tenancy. The tenants’ application

The tenants claim the landlords have 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 landlords do not dispute that the bond was not lodged with the Bond Centre. They have committed an unlawful act.

Should exemplary damages be ordered?

Before the Tribunal can consider awarding exemplary damages for an unlawful act, it must first find that the unlawful act was intentional.

Is the tenant responsible for the damage to the premises?

The landlords claim that the cooktop was damaged during the tenancy. The tenants were the first occupants of the new home. The damage to the cooktop was discovered at the end of the tenancy.

I am satisfied that the landlords have proved that the damage happened during the tenancy. The tenants have not proved that they did not carelessly cause the damage.

Because both parties were successful with the applications, no order is made regarding reimbursement of the filing fees. Suppression

The parties have substantially succeeded with their claims and therefore name suppression is granted.

Tenancy Tribunal case 5224632 — Exemplary damages

At a glance

Tenancy Tribunal case 5224632 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Should exemplary damages be ordered?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should exemplary damages be ordered?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions