What was Tenancy Tribunal case 5235651 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 5235651?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5235651?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5235651?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12714498-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5235651 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 5235651?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5235651?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5235651?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12714498-Tribunal_Order_Redacted.pdf.

1408 a Oropi Road, Oropi, RD 3, Oropi 3173 Tenancy Tribunal Case 5235651 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5235651 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: - breach of s12 RTA	$2,000.00	- breach of s12 RTA
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Total payable by Landlord to Tenant	$2,027.00

Claims and awards in Tenancy Tribunal application 5235651 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: - breach of s12 RTA	$2,000.00	- breach of s12 RTA
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Total payable by Landlord to Tenant	$2,027.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants names and identifying details.
Kerri Angela Chittock must pay [The tenant/s] $2,027.00 immediately as calculated in the able below
The tenant’s claim for compensation is dismissed.

Reasons

Both parties attended the face-to-face hearing.
The tenants claim the landlord has discriminated against them in the granting of a tenancy and have applied for compensation and exemplary damages. The landlord says the claim should be dismissed as there was no tenancy agreement between them.
The issues I must consider are: a. Did the landlord discriminate against the tenants in respect of a grant of a tenancy agreement in contravention of the Human Rights Act 1993? b. If the landlord did discriminate against the tenants, should the tenants be awarded compensation and/or exemplary damages? Relevant legal considerations
The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations: That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy 1 , 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. Did the landlord discriminate against the tenants in respect to the grant of a tenancy agreement in contravention of the Human Rights Act 1993?
The tenants say the landlord discriminated against them because she said she would not grant them a tenancy if they did not have employment and if they received a WINZ benefit. 1 Kaipo v Clarke & McCarthy (DC) TT233/02.
Both parties provided documentary evidence setting out the correspondence between them by email and text message. Some of the evidence was undated, however I have set out the relevant meeting and communications below.
The parties met at the premises on 22 March 2025 to discuss the tenancy and the tenants say that they left this meeting with the impression they would be offered the tenancy. The parties exchanged text messages to finalise the conditions and make arrangements for the signing of a tenancy agreement.
On Friday 28 March 2025 the tenant provided the landlord a document to confirm he will have a WINZ benefit and therefore could pay rent. I note the WINZ document provided to the landlord did not actually provide any clear indication that they would receive WINZ payments during the tenancy.
On 29 March 2025 the landlord replied: Work & income is a government organisation. On the government form it says income 00 00 I am confused!!! So once you have started your job and received your first paycheck, we can be reassured from your payslip that you qualify to rent the house. We will give leeway for 2 weeks so you can do that as we know it is a new job for you and moving is very stressful. I made it clear to everyone we replied to, that we do not accept payments from the government. Our lives are private and confidential. I do remember verbally telling you that also. We want people who work and have a job because we know how expensive it is to have at least a half decent life these days and we need to help one another where we can. So is this work & income invoice to carry you through until you start getting paid in your new job? See you Tuesday morning 9.30am at your request.
The landlord says this evidence shows she was not discriminating against the tenants as beneficiaries but rather she did not want to deal with “bureaucracy and government”.
The landlord had a witness, Mr George give evidence at the hearing. Mr George was assisting with the finalising of the terms of the tenancy agreement. Mr George confirmed that the parties had commenced negotiations. Mr George confirmed that he emailed the tenant’s a copy of the tenancy agreement. The tenants provided a copy of the email which shows that on Saturday 29 March 2025 Mr George emailed the tenants a copy of the unsigned, partially completed tenancy agreement and said: As discussed I have attached the tenancy agreement for your records. I will bring two hard copies with me for our meeting, 0930 Tuesday morning.
The partly drafted tenancy agreement recorded the tenancy shall commence on 3 April 2025 and would be for a fixed term ending on 3 July 2025. The tenants indicated at the hearing that they anticipated moving into the premises on 3 April 2025 or shortly thereafter.
On 30 March 2025 the landlord emailed the tenants: We requested from you a letter from your new employer to show you have a job and the capacity to pay rent. Please have this letter with you or email to us. We require this before we sign any agreement.
One of the tenants replied to the landlord that day: My new wage will cover rent but we will still need a top up from WINZ until [tenant] finds something more.
On 31 March 2025 one of the tenants text Mr George that they would not be proceeding with the tenancy.
On 31 March 2025 the landlord then emailed the tenants: We have always claimed we do not accept beneficiaries. Since we met we have been waiting for a letter from your new employer to confirm you have a job and can sustain a reasonable life style, yet we have not seen one to secure your position here. You both did not mention being on a benefit when you were here and when I made it clear, no beneficiaries, you did not say anything at the time of our meeting in person. Our property broker Alwyn has said you will not sign the tenancy lease agreement so that means we have no commitment or assurance from you. Although we are disappointed, we will not waste any more time on this matter.
The tenant then filed this claim on 14 April 2025.
The landlord says that this matter should be dismissed as she says there was no tenancy agreement between the parties. Analysis
Section 12 of the RTA is relevant and says: 12Discrimination to be unlawful act (1)Each of the following is hereby declared to be an unlawful act: (a)discrimination against any person in respect of the grant, continuance, extension, variation, termination, or renewal of a tenancy agreement in contravention of the Human Rights Act 1993; and (b)the giving of an instruction or the stating of an intention in contravention of subsection (2). (2)A landlord shall not, in respect of the grant, continuance, extension, variation, termination, or renewal of a tenancy agreement,— (a)instruct any person to discriminate against any other person in contravention of the Human Rights Act 1993; or (b)state an intention (whether by advertisement or otherwise) to discriminate against any person in contravention of that Act. (3)Nothing in section 21(1)(k) of the Human Rights Act 1993 shall apply to the termination of a service tenancy on the ground that the tenant has ceased to be, or is about to cease to be, employed by the landlord or (where the landlord is a company) by an associated company (within the meaning of section 2(2)). (4)In this section tenancy agreement includes a prospective tenancy agreement, regardless of whether or not a tenancy is granted. (emphasis added).
The Tribunal can only consider disputes in relation to residential tenancies which fall within the RTA between a landlord and a tenant or between a landlord and the guarantor of a tenant. 2
Section 2 of RTA sets out the following definitions: a. A 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. b. A 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. c. A 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. d. A landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective landlord; (emphasis added) and (b) a former landlord; and (c) a lawful successor in title of a landlord to the premises; and (d) the personal representative of a deceased landlord; and (e) an agent of a landlord 2 See section 77 (1) (a) - (b) of the RTA. e. A prospective landlord means a person who has offered to grant a tenancy to any other person, or who has entered into negotiations with any other person for the granting of a tenancy (emphasis added) to that other person f. A tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective tenant; (emphasis added) and (b) a former tenant; and (c) a lawful successor in title of a tenant to the premises; and (d) the personal representative of a deceased tenant; and (e) an agent of a tenant g. A prospective tenant means a person to whom any other person has offered to grant a tenancy, or with whom any other person has entered into negotiations for the granting of a tenancy to that person
Therefore, a tenancy agreement includes a prospective tenancy agreement, regardless of whether or not a tenancy is granted. While a prospective tenancy agreement is not defined in the RTA the definitions of a prospective landlord and tenant do not require a grant of a tenancy but the that there has been negotiations between the prospective landlord and tenant to enter into a tenancy.
Reference to “prospective tenants” is used throughout the RTA in reference to a person who is considering or negotiating entering into a tenancy agreement, for example section 47(2) of the RTA says when a landlord is offering residential premises as available for letting, the landlord shall inform prospective tenants if the premises are on the market for the purposes of sale or other disposition and section 48 of the RTA refers to the landlord’s right to enter the premises for showing the premises to “prospective tenants”.
In this case the landlord acknowledged that the parties had entered into negotiations. I therefore find for the purposes of section 12(4) of the RTA the parties were a prospective landlord and prospective tenants and had entered into a prospective tenancy agreement through the negotiations they undertook.
A landlord must not discriminate against a tenant in relation to the grant, renewal, variation or termination of a tenancy, in contravention of the Human Rights Act 1999. 3 The obligation is set out in section 12 of the RTA above.
Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. 4
In reviewing the correspondence between the parties and considering the oral evidence I find the tenants were under the clear impression that they could have been offered the tenancy, but this was conditional on them providing evidence of an employment as specified by the landlord on 30 March 2025 and that the landlord would not rent to beneficiaries.
A landlord is entitled to ask a prospective tenant for evidence of an ability to pay rent for example a pay slip, a letter from the tenant’s employer or Work and Income, or evidence of rental payments from a previous tenancy and consent from the prospective tenant to a credit check being undertaken.
However, the landlord cannot specify and only require proof of employment and the landlord cannot say they will not grant a tenancy to beneficiaries.
Because the landlord has said to the tenants that she does not accept beneficiaries and requires proof of employment I find that she has discriminated against the tenant in the process of granting a tenancy.
I find the landlord has committed an unlawful act.

Should the tenant be awarded compensation and/or exemplary damages?

Exemplary damages

Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell 5 the Court of Appeal said: “Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they 3 See sections 12(1) and 109(3) Residential Tenancies Act 1986. 4 See section 12(1) and Schedule 1A Residential Tenancies Act 1986. 5 Auckland City Council v Blundell [1986] NZLR 732(Cooke P) are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.”
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. Before the Tribunal may award exemplary damages, the Tribunal must take into account the following factors set out in section 109 of the RTA: a. the intent of the person in committing the unlawful act, b. the effect of the unlawful act, c. the interests of the landlord or the tenant against whom the unlawful act was committed, d. the public interest, e. whether it is just to make the award. 6
Intention is proved where the party turns their mind to the unlawful act and deliberately sets out to commit the act. It is unnecessary to prove that the party intended to act unlawfully, it is enough that they intended to commit the act which is in fact unlawful.
I consider the landlord has deliberately discriminated against the tenants on the basis of their employment status. The landlord openly spoke about her concerns about beneficiaries as tenants and her general preference to not have a beneficiary as a tenant although she says she ultimately did grant a tenancy to a beneficiary. The effect of the unlawful act is that the tenants have suffered real stress and humiliation, particularly as they were in the process of relocating from another region. It is in the tenant’s interest to receive exemplary damages for the unlawful act committed against them and it is in the public interest to deter any discrimination by a landlord when considering whether to grant a tenancy. I consider it is just to make an award for exemplary damages.
The Tribunal’s usual approach to exemplary damages is to award one third of the maximum unless there are aggravating or mitigating factors in play. 7 There is a degree of mitigation in that the tenants ultimately said they would not proceed with the tenancy – therefore the landlord was not given the opportunity to change her position and a degree of aggravation in that the landlord continued her discriminatory behaviour even when aware that it was likely unlawful and wrong. In the circumstances I consider an award of exemplary damages of $2,000 is just and this is the amount ordered. 6 Section 109 of the RTA. 7 Wellington Property Management Ltd v Hardie [2022] NZTT 4399281 4374781. Compensation
The Tribunal may award compensation to a party for losses arising from a proven breach or breaches by the other party of their statutory responsibilities under the RTA. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
In Birch v Otautahi Community Housing Trust 8 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
The tenant claimed compensation for the additional costs of moving and damage to items during their move. The tenant did not provide sufficient evidence to support the claim for compensation. I consider that the landlord could not have foreseen that the tenant may have suffered loss from items being damaged or moving costs following from her discrimination against the tenants. These are in my view not costs arising from the landlord’s breach. The tenants were relocating anyway and have not proved additional costs as a result of this tenancy not proceeding. For these reasons the application for compensation is dismissed. Filing fee
Because the tenants have been successful with the claim, I have reimbursed the filing fee. Suppression
Section 95A of the RTA relates to suppression orders. The relevant provisions state: (1)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.... 8 Birch v Otautahi Community Housing Trust [2020] NZDC 17667 ...(4) The Tribunal may, 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. (5) An order under subsection (4) may be made subject to any conditions that the Tribunal considers appropriate.
The tenants applied for name suppression and as they have been successful with the claim I order suppression of the tenant’s names and identifying details.
The landlord did not apply for name suppression and as the landlord has been unsuccessful in defending the claim name suppression would not have been granted.

Tenancy Tribunal case 5235651 — Exemplary damages at 1408 a Oropi Road, Oropi, RD 3, Oropi 3173

At a glance

Tenancy Tribunal case 5235651 — Exemplary damages at 1408 a Oropi Road, Oropi, RD 3, Oropi 3173

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenant be awarded compensation and/or exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenant be awarded compensation and/or exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions