Published tribunal order
Tenancy Tribunal case 5238016 — Exemplary damages
Decided 15 Oct 2025 · Published 15 Oct 2025 · Application 5238016
- 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 [Tenants] name and identifying details.
- Elizabeth Gay Kingi to pay [The tenant/s] $2,709.00 immediately, calculated as follows: Exemplary Damages – s 38: $1,000.00 Exemplary Damages – s 48: $100.00 Refund of Rent – s 78A: $1,582.00 Application Filing Fee: $27.00
Reasons
- Both parties attended the hearing.
- The Landlord, initially represented by her friend Ms Birch, whom she had appointed as her agent on 10 March 2025, has engaged a lawyer, Ms Nathan.
- The Landlord, Ms Birch and Ms Nathan attended the hearing.
- [Tenant 1] appeared for herself and for her son, [Tenant 2].
- The tenancy agreement was signed on 9 February 2025. The Tenants took early possession on 27 February 2025, prior to the 1 March commencement date.
- Following escalating conflict over parking, maintenance and access, the Tribunal issued an Interim Order dated 23 April 2025. In that Order, the Tribunal directed the Landlord to extend the driveway and attend to maintenance issues. The Order also directed the tenants to place the front wheels of their car on the grass until the driveway was widened.
- The tenancy was terminated by Tribunal Order dated 29 May 2025.
- The Landlord has filed an affidavit dated 25 June 2025, and the tenants have filed a detailed rebuttal. I have considered most of the written material and the oral evidence given at the substantive hearings.
- I have not read or considered the Tenant’s medical information which I was asked to keep confidential. I cannot consider evidence in secret. I have not ignored the Tenant’s health issues and plight, however. Background
- In New Zealand, tenancies involving unconsented dwellings, such as downstairs flats, garages, or sleepouts not legally approved as separate residential units, are relatively common, particularly in high-demand rental areas like Auckland, Wellington, Rotorua, and Queenstown. These setups often involve tenants occupying parts of a home that are not consented by the local council for independent residential use, lacking code-compliant dividing firewalls, or code compliant kitchen and bathroom facilities.
- The premises comprise a self-contained two-bedroom flat converted from the lower level of the Landlord’s lakeside home near Rotorua, accessed by a narrow, shared driveway that sweeps downhill from [road] to a small, cobbled parking pad immediately outside the flat’s ramped entrance. Above the pad, on slightly higher ground, is the Landlord’s garage and a secondary parking area used by the Landlord’s friend, Ms Birch, who’s long-wheel-base van and two dogs frequently visited.
- As this case illustrates, many mixed-use tenancies begin without a written, pre-tenancy agreement that clearly allocates exclusive and common areas or sets “fair-use” rules, such as when, where and how vehicles may park, visitors may attend, or pets may roam, leaving expectations to be inferred and revised on the fly.
- Under the Residential Tenancies Act 1986 (the Act) framework that vagueness quickly seeds conflict: tenants assert rights to quiet enjoyment and unimpeded access under section 38, while landlords seek practical control of shared driveways, gardens and utility spaces to protect their own use and safety.
- Because the Act imposes strict liability on landlords for their own conduct, any unresolved ambiguity disproportionately exposes the landlord to allegations of unlawful entry, harassment or breach of quiet enjoyment, even where the underlying friction stems from mutual misunderstanding rather than wilful misconduct. Pre-hearing complaints
- On 6 March 2025, [Tenant 1], experienced what she described as a mini-stroke. Ms Birch allegedly arrived to park her van, found the Tenants’ car in what she regarded as an obstructive position and filmed [Tenant 1] without consent. The Landlord issued an antisocial-behaviour notice shortly after. The Tenants regarded the Landlord’s behaviour as intimidating and invasive.
- On 22 March 2025, Ms Birch installed a “No Parking” sign immediately outside the Tenants’ entry door, again without prior notice. The Tenants contacted the Police, who advised that the safest place for [Tenant 1], who has mobility limitations, was to park close to her ramp. 1
- On 10 April 2025 Ms Birch emailed (via the Tenants’ lawyer) demanding that the Tenants move their vehicle by 11:30am that day. Ms Birch did not attend at the time stated, and the Tenants spent the morning intermittently, anxiously checking the driveway.
- A third antisocial-behaviour notice was issued on 11 April 2025 at 5:38pm after another parking demand. That same day a second “No Parking” sign was put up by the Landlord. Police involvement continued.
- Texts sent at 7:11am on 11 April and 8:16 am on 12 April required the Tenants to move their car while [Tenant 2] was sleeping after night shifts. [Tenant 1] could not move the car due to health complaints. The Tenants nonetheless shifted the car and later measured the driveway, establishing approximately 17.12 metres of manoeuvring space. I have focused on the timing and inconvenience of the Landlord’s requests.
- Between 13 and 15 April 2025, the Tenants’ say Ms Birch’s dogs were left with the Landlord and barked whenever the Tenants’ puppy went outside, causing distress and limiting the Tenants’ use of the deck. On 14 April the Landlord allegedly photographed the tenants’ car without notice. First hearing and subsequent complaints
- The Tribunal’s 23 April order required both parties to resolve driveway and maintenance issues and set a monitoring hearing four weeks later. The Landlord set about extending the driveway. The driveway extension was completed on 1 I was unable to find any record of this in the Police reports provided. 8 May, but a cone and a trailer were left in front of the widened area, again restricting parking.
- Photographs taken by the Landlord on 22 May showed the Tenants’ car still aligned with the old cobble line, but by 28 May the car had been moved forward to the edge of the extension. Ms Birch conceded she could then manoeuvre her van, albeit “with difficulty”. I was quite firm with Ms Birch at the first hearing about her needs being subsidiary to the Tenant’s rights and the Landlord’s obligations and she graciously acknowledged my reminder.
- The Tenants also point out that the photographs taken by the Landlord on 12 June were taken without notice to the Tenants, in breach of their right to privacy.
- Throughout this period Ms Birch communicated directly with the Tenants despite their repeated objections and despite my advice to appoint a professional property manager.
- I note that the pattern of early-morning texts, signage and filming appeared to stop after 23 April 2025. Breach of section 38: harassment and quiet enjoyment
- Section 38(2) RTA prohibits the Landlord from interfering with the reasonable peace, comfort or privacy of the tenant. Harassment is defined in MacDonald v Dodds as a pattern of behaviour that troubles, worries or distresses the other party. 2
- I am satisfied that the Landlord, principally through the acts of Ms Birch, engaged in a sustained course of conduct that interfered with the Tenants’ quiet enjoyment, particularly in the period leading up to the Tribunal’s interim order of 23 April 2025.
- Key incidents supported by contemporaneous records and oral evidence at the hearing include: a. repeated installation of “No Parking” signage and service of antisocial-behaviour notices over the parking dispute; b. unannounced photography of the tenants’ car on 11 and 14 April 2025 and again on 22 May 2025; c. two early-morning text demands of 11 and 12 April 2025; and d. the presence of Ms Birch’s dogs, whose barking on 13 and 14 April distressed the tenants’ puppy and limited use of the shared deck.
- Although the landlord took steps after 23 April to extend the driveway and there is no record of further early-morning texts or new signage after that date, the cumulative effect of the pre-April conduct – combined with continued driveway 2 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. photography in May – amounted to a pattern of interference sufficient to breach section 38 of the Residential Tenancies Act 1986.
- The conduct was deliberate. Its effect was significant stress, including transient ischaemic attacks (TIAs) for [Tenant 1], 3 and stress-induced asthma and lost wages for [Tenant 2] ($267.00).
- The Landlord derived full rental income (at a rate comparable with compliant two-bedroom properties) from an arrangement that, because of the narrow, shared driveway and the Tenants’ genuine need to park close to their ramp, was plainly ill-suited to both parties. Yet when that incompatibility became obvious, it was the Tenants who shouldered the social cost in the form of repeated notices, signage, early-morning demands, and the stress of having to justify their parking each time.
- Landlords must not allow routine access or maintenance issues to escalate into pressure tactics, even if accessibility issues only become pronounced once the tenancy is underway, and in ill-conceived arrangements such as this.
- Having weighed the Landlord’s financial benefit against the Tenants’ sustained inconvenience and distress, exemplary damages of $1,000.00 are warranted.
- Without more evidence as to [Tenant 2]’s work arrangements, I am not convinced that his lost wages are compensable. The Landlord’s evidence is that [Tenant 2] was engaging in competitive, international gaming in the evenings. On that basis, I do not think the Landlord would have foreseen [Tenant 2]’s loss. Breach of section 48: unlawful entry and surveillance
- Section 48 permits entry only with consent, proper notice, or in an emergency.
- Filming and photographing the Tenants and their vehicle without notice constitutes a breach of the Tenant’s privacy rights that s 48 is purposed to protect.
- The filming on 6 March and the photographs of 11 April, 4 14 April, 22 May 5 and 12 June were deliberate and, strictly speaking, unauthorised.
- However, I consider both parties were photographing aspects of the property and were enmeshed in conflict, and litigation. I cannot penalise the Landlord for procuring evidence in support of their claim and allow the Tenant to do the same without sanction. 3 The Tenants indicated that they held medical material supporting [Tenant 1]’s reported episodes but asked that I consider it on an ex parte basis. I declined that request because natural-justice requirements prevent the Tribunal from receiving evidence that is not disclosed to the other party. The Landlord did not actively contest the Tenants’ description of [Tenant 1]’s symptoms, and no credibility concerns arose during my examination of the Tenant to cast doubt on that account. 4 Affidavit of Elizabeth Gay Kingi dated 25 June 2025 at [3]; c.f. Submissions of Ms Birch. 5 Affidavit of Elizabeth Gay Kingi dated 25 June 2025, Exhibit B.
- Exemplary damages of $100 are awarded, taking account of intent, the distress caused and the public interest in deterring the escalation which the Landlord’s fuelled by filming [Tenant 2] on 6 March 2025. Breach of section 45: failure to maintain
- The Tenants first raised maintenance concerns (mould, cracked shower base, drainage, smoke alarms, draught, outdated fire extinguisher) in an email via their lawyer on 7 March 2025. The Tribunal’s 23 April order required the landlord to investigate and remediate.
- Although smoke alarms were replaced and the toilet-door lock repaired on 5 May, the cracked shower base, mould in the bathroom and upper bedroom, rangehood fan, and draught under the inter-tenancy door remained unresolved at the end of the tenancy, according to the Tenants.
- The Landlord’s affidavit disputes each of those items: a. Shower tray: The Landlord she says the shower tray was not cracked at the start of the tenancy and that this claim did not form part of work order and was not notified to the Landlord (para 23(b)). b. Stains: The Landlord contends that any dark marks the Tenants photographed in the shower were simply “black water stains” that were removed with ordinary cleaner (para 23(a)). The Landlord’s photographs tend to support the Landlord’s claim the marks were removable water stains, though the photographs the Landlord has asked me to compare, to not provide the fairest comparison. I am not a mould expert, but I prefer the Landlord’s explanation of the markings because of where they are situated in the shower, below the shower outlet. c. Mould: The Landlord denies the presence of persistent mould in the bathroom or bedroom and contends her post-cleaning photos show the surfaces clear. I am not a mould expert, but I do not consider the mould claims indicate a mould problem at the premises which requires Tribunal intervention. d. Rangehood: The Landlord states the rangehood filters were removed and cleaned by the builder on 5 May 2025. However, I do not consider the Tenants’ photographic evidence is sufficient to satisfy me there was a mould problem in the home. e. Draught: The Landlord points to the fitting of a deadbolt and a draught-stopper to the inter-tenancy door on 23 May 2025 as resolving any draught complaint.
- Overall, the Landlord says the flat was well-maintained, any remaining issues arose after the Tenants moved in, and nothing material was left outstanding at the end of the tenancy. I accept the Landlord’s evidence in this regard.
- The fire extinguisher was expired and removed by the Landlord. I do not consider this to be in contravention of the Landlord’s obligations and will return to consider the lawfulness of the dwelling later on.
- Consequently, I do not find any breach by the Landlord of s 45(1)(b) of the Act. Retaliatory notice – sections 54 and 60AA
- On 6 October 2024 the Landlord served a 90-day notice terminating the tenancy. It was issued within weeks of the Tenants complaining formally about parking and maintenance.
- The Landlord maintains that the 90‑day notice issued on 6 October 2024 was driven by her own timeline not by the tenants’ complaints and was not therefore, retaliatory.
- In her oral evidence she said she wished to have the flat vacant so maintenance could be completed during the winter months and the whole property prepared for marketing in September 2025. To soften the impact, she gave “three months plus an extra month.”
- Her written submissions (para 4–7) 6 add that the notice fitted a long‑standing plan to relist the house for sale once the market improved. She had already been trying to sell in 2024 and was able to tell me who was engaged to market the property, and I had no reason to believe she was trying to mislead me.
- The Landlord expressly rejects the Tenants’ suggestion that the notice was served because they had raised parking or maintenance concerns, contending that those issues “arose quickly in the tenancy” but were not the motive for ending it.
- I am unable to conclude, on balance, that the notice was retaliatory under s 54(1) RTA.
Is the Tenant entitled to a refund of rent due the premises being unlawful?
- The Tenants claim a refund of the rent they paid on the basis that the flat was an unlawful residential premises: in summary, it lacked the fire‑rated separation and consents required for a self‑contained dwelling.
- The Landlord accepts the unit was not consented but submits, citing several key cases, 7 that any rebate should be modest because the Tenants obtained full amenity during their stay and because she was unaware of the illegality.
- Section 78A(4) empowers the Tribunal to order either a full rent refund or “such lesser sum as the Tribunal thinks fit having regard to the special circumstances 6 Submissions on behalf of the Landlord as to Section 78A Issues dated 26 June 2025. 7 Exclusive Estates Ltd v Hoffman [2023] NZHC 1878, Harding v Caroto (2023) NCDC 5981, and [Suppressed] v Simon Todd [2022] NZTT 4319171. of the case, including the nature of the premises.” The case law supplied by the Landlord sketches the range of outcomes. In Hoffman the High Court accepted that the starting point is a total refund but treated the Tenant’s real benefit from living in an otherwise decent dwelling as a special circumstance; the result was a fixed award of $1,500, well below a percentage-based figure canvassed at first instance. Harding reviewed a series of decisions where premises were safe and habitable but technically unlawful and observed that awards between $975 and $2,000, roughly twenty per cent of rent, had been found appropriate. By contrast, in [Suppressed] v Simon Todd the absence of a fire-rated wall was regarded as a serious safety defect and the Tribunal fixed the refund at twenty per cent of the rent actually paid.
- Consequently, a missing firewall is a primary life‑safety defect. The flat could not lawfully be used for residential purposes at all.
- Stepping back, the tenancy lasted only fifteen paid weeks, the Tenants enjoyed exclusive occupation (of their flat), modern insulation, a new heat‑pump, and attractive lake surroundings during a period of tight rental supply.
- Then, the Landlord, once told of the problem, did not re‑let the premises. Her ignorance was genuine, though negligent.
- She spent $3,500 on widening the driveway, a capital improvement that will not benefit her, because the property is to be sold and the premises cannot be lawfully tenanted.
- The Tenants, for their part, were not deprived of shelter, but they paid the rent they would be paying for a standard two-bedroom home, in perhaps a less desirable area of Rotorua.
- I consider a refund of twenty per cent of the rent paid is just. The Tenants’ net rent after accounting for their $640 credit was $7,910, making the appropriate refund $1,582.00.
- That sum recognises the Landlord’s windfall from an unlawful tenancy while avoiding a windfall in the opposite direction for tenants who did receive appreciable benefit.
- Accordingly, under s 78A(4)(b) the Landlord must repay $1,582.00 to the Tenants. Filing Fee
- Because the Tenants have substantially succeeded with their application, I award them their application filing fee. Name Suppression
- Given the findings favourable to the Tenants and the potential sensitivity of the limited medical information which has been shared with the Tribunal, name suppression for the Tenants is granted.