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Tenancy Tribunal case 5243051 — Exemplary damages at 25 Hawkestone Street, Thorndon, Wellington 6011

Decided 23 Sept 2025 · Published 23 Sept 2025 · Application 5243051

Exemplary damages

View official order on MoJ →Explore similar cases

At a glance

Key facts from the published tribunal order.

Location

Wellington

Tribunal region

Adjudicator

K Stirling

Dispute themes

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5243051. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Mexted As Trustees For Mackenzie Family Trust	$2,943.97		Mexted As Trustees For Mackenzie Family Trust

Claims and awards for application 5243051. Verify on MoJ.

Mexted As Trustees For Mackenzie Family Trust

Amount: $2,943.97
Awarded to: Landlord
Reason: Mexted As Trustees For Mackenzie Family Trust

Order

FOR COSTS

[The tenant/s] tenant/s] and [The tenant/s] tenant/s] must pay [The tenant/s] landlord/s] And Katherine Mexted As Trustees For Mackenzie Family Trust $2,943.97 immediately for costs.

Reasons

The Tribunal must consider an application for costs by the landlord. Both parties have filed submissions on costs and this decision is made on the papers.
The Tribunal issued its substantive decision in orders dated 29 May and 15 July 2025.
The previous orders addressed the following claims from the landlord: a. Access to the premises under section 48(3) Residential Tenancies Act 1986 (RTA) to show the premises to prospective purchasers and advisers for the purpose of sale; b. A declaration that the tenants committed six separate unlawful acts pursuant to section 48(4)(b) RTA by failing, without reasonable excuse, to allow the landlord to enter the premises in circumstances in which the landlord was entitled to enter the premises under s48(3) RTA; and c. Exemplary damages for each unlawful act pursuant to section 48(4)(b) and schedule 1A RTA.
Of those claims the landlord wholly succeeded in obtaining access orders, a declaration that the tenants committed six unlawful acts and an award of exemplary damages. Whereas the landlord sought an award of exemplary damages up to the maximum of $1,500 for each of the six unlawful acts, the Tribunal awarded $1,200 in total on the basis that it has been affirmed by the District Court that the Tribunal can only order one maximum award for each unlawful act that fits under s48(4)(b) as a global order. 1
The landlord seeks an order for costs based on actual costs of $8,210 plus GST for the costs of preparing and filing the proceedings, hearing preparation and attendance, and a further $1,700 plus GST in preparing and filing their submissions on costs.
Generally, costs are not awarded in the Tribunal, except in limited circumstances. Section 102(2)(b) RTA confirms that costs may be ordered where any party is represented by counsel, as in this case. Section 102(3)(b) then provides that the Tribunal may order one party to pay the other party “the reasonable costs of that other party in connection with the proceedings.”
Under s93 RTA, parties are entitled to be represented by counsel if the amount in dispute is more than $6,000. Counsel may also appear if the Tribunal is satisfied that a party should be permitted to instruct counsel due to the nature and complexity of the issues or a disparity between the parties that affects their ability to present their case. Landlord’s position
The starting point for costs under s102(2)(b) RTA is that costs should follow the event. Here the landlord has been entirely successful both in terms of access orders and in the Tribunal’s conclusion that the tenants actions were unlawful justifying an award of exemplary damages. Therefore, costs should be awarded to the landlord.
An uplift in costs is justified because the proceedings were entirely unnecessary and were only required when the tenants unreasonably and unlawfully refused reasonable access to the landlord to show the premises to prospective purchasers. 1 Ministry of Business Innovation and Employment v Hillis Shearing Limited [2024] NZDC 27583 at [17]-[25]
The tenants also refused to enter into any reasonable agreement for access including a proposal for settlement on 13 May 2025 which was more restrictive than what was agreed at the hearing and recorded in the order of 29 May 2025.
The tenants’ actions and attitude required the landlord to seek legal advice and assistance because the tenants persistently, repeatedly, and unreasonably refused to provide access and all reasonable entreaties to negotiate otherwise. Even when the landlord engaged legal counsel, the tenants continued to refuse reasonable access.
The impact on the landlord has been significant in that she has been unable to show the property to prospective purchasers for extended periods and has undoubtedly lost opportunities for a sale.
The landlord was entitled to claim penalties for repeated unlawful acts and amend the claim accordingly. The landlord was also entitled to seek approval for representation on the grounds that the matter had become complicated and the value of the damages sought exceeded $6,000. Tenants’ position
It is not accepted that costs follow the event in the usual way with RTA proceedings given that s93 RTA specifically restricts representation to express statutory exceptions. The landlord only met one of the exceptions in s93, that the claim exceeded $6,000. Materially, the landlord’s first application lodged on 23 April 2025 sought exemplary damages up to $1,500 (“the first application”). Therefore, the landlord would have no entitlement to representation and ability to claim legal costs regarding the first application. The landlord’s second amended application lodged on 16 May 2025 was materially similar to the first application except it sought exemplary damages in excess of $6,000 (“the second application”). The Tribunal stated in its minute on 22 May 2025 (determining the request for representation) that the proceedings were not particularly complex, but the amount claimed triggered the right to representation. Therefore, any costs claimed should be restricted to attendances regarding the second application.
The claim for exemplary damages (and for representation by counsel) was based on an incorrect position at law because the Tribunal ruled that it could only make one global award for exemplary damages up to $1,500 in relation to multiple breaches/unlawful acts under the one provision.
The tenants have also incurred their own legal costs in responding to the landlord’s representation by counsel.
The landlord did not seek to resolve this matter using the Tenancy Tribunal mediation service as sought by the tenants in their cross application;
The costs sought are not reasonable, being almost ten times the damages awarded.
The costs include post hearing costs (to prepare the costs submissions) which are not claimable at law. The costs also include attendances prior to the filing of the second amended application which are not claimable at law. 2
There are several cases where the Tribunal has declined to award costs where the party was “.. fully entitled to instruct counsel but it was unnecessary ’3 or declined to award high costs in circumstances where doing so would “have a chilling effect on tenants...against landlords who are more likely to have the financial resources to instruct counsel’ 4 and because “it is relevant to have regard to the importance of preserving access to the Tribunal and the possible chilling effect of high costs orders.” 5
Cost should fall where they lie for the above reasons.
If the Tribunal is minded to award costs, it is submitted that Category 1A costs in the District Court Rules 2014 are appropriate.
The tenant also objects to the landlord’s inclusion of “without prejudice” material placed before the Tribunal particularly where the tenant says it does not reflect the extent of the communications that took place. This appears to relate to a proposal for resolution of costs which I consider is not relevant to this determination and I do not consider it. Law and analysis
Section 102(3)(b) RTA gives the Tribunal discretion to award reasonable costs where a party is represented by counsel. Beyond the requirement that the costs be reasonable the RTA does not provide any further guidance on determining the amount. It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party. What is considered to be “reasonable” costs will depend on a range of factors. In Holden v Architectural Finishes Ltd 6 Justice McGechan confirmed that one approach to costs is to start from actual costs and discount downwards to arrive at a reasonable contribution to costs. He held: “...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable 2 BC 346799 v Ikeda [2020] NZDC 3669 at [99-100], Rika-Heke v Zayachkov [2025] NZTT 515 at [45] 3 Reid-Copus v Mihajlovic [2024] NZTT 9051085 at [19] 4 Suppressed v Suppressed [2022] NZTT 4266962 at [88] 5 360 Property Management Limited v Stevens [2024] NZTT 4856282 at [9] 6 Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 contribution’ earlier determined falls within a middle range, say 40% to 70%,there is a feeling of some comfort...”
McGechan, J acknowledged that in some cases it will be necessary to determine the threshold question of whether the actual costs incurred fall within a reasonable range before deciding what a reasonable contribution to those costs should be in the circumstances. When a party is represented by counsel, there are various “shopping lists” of potentially relevant factors to consider when assessing whether the costs were reasonable and what would be a reasonable contribution. Having regard to the factors outlined in Holden, the following factors should be taken into account in this case: a. The length of the hearing; b. The sum of money involved; c. The importance of the issues to the parties generally; d. The legal and factual complexity; e. Whether urgency was required; f. Unreasonable or obdurate refusal to settle (the Calderbank procedure) and in this case to mediate; g. Whether argument lacking substance was advanced; h. The degree of success achieved by the parties

Are the costs reasonable?

Counsel for the landlord claimed in their submissions that from 13 May 2025, the landlord incurred legal costs of $8,210 plus GST in relation to the proceedings. However, based on the time records later produced as evidence, this is not correct. This figure appears to relate to time accruing since the first application was filed on 23 April 2025 until 24 June 2025 which totals $8,335.50 plus GST. In addition, the landlord seeks $1,700.00 plus GST for preparation of the costs submissions.
I find on the evidence that the actual costs claimed covers attendances from the time counsel prepared and lodged the first application and before they lodged the second application, for which legal representation would not be permitted based on the quantum claimed. The costs also cover post-hearing attendances including preparation of the costs submissions. As held in Ikeda 7 : “It is clear as a matter of law that attendances before commencement of the claim cannot be recovered, neither can post hearing attendances, by which time the Tribunal 7 Per BC 346799 v Ikeda, above n2 at [19] will be functus officio, having delivered its decision, save for its residual power to make a costs order.”
Following Ikeda, I consider that the costs which relate to counsel’s attendances prior to the filing of the second application on 16 May 2025 must be deducted from the claim because it relates to a period when the landlord was not entitled to be legally represented based on the amount of the claim, and at that point no application for representation had been made for any reason under s93, whether due to complexity or quantum. Also the costs incurred following the hearing on 28 May 2025 must be deducted from the claim. Looking at Counsel’s time records for the period from 16 May 2025 to 28 May 2025, the costs accrued are $4,654.50 plus GST, a total of $5,352.68. I consider this is the starting point for actual costs.
The tenants emphasize that the landlord was entitled to representation under s93 because of the amended damages claim in excess of $6,000. Representation was not granted by the Tribunal because it was appropriate to do so having regard to the nature and complexity of the issue involved. However, the landlord did not succeed in its application for damages in excess of $6,000 with the Tribunal ruling that the landlord was only ever entitled to a global award of $1,500 maximum for exemplary damages. Therefore, it is unreasonable for the landlord to seek legal costs for representation (and associated costs) which she was never entitled to at law.
However, I note that the Tribunal ruling was based on a relatively recent appeal decision issued by the District Court in MBIE v Hillis Shearing 8 and up until that ruling there was some considerable divergence of opinion and case law as to whether the Tribunal could order separate exemplary damages for several unlawful acts falling under the same provision or only a global award, with cases decided both ways. The wording and interpretation of the relevant section which declares what is an unlawful act is also important when determining the matter. In that regard, I consider that the claim by the landlord was not necessarily one that should not have been brought and there was an arguable case depending on the interpretation of the wording in s48(4((b).
Concerns were raised by the tenants about preserving access to the Tribunal because it is mostly a lay-persons forum and the “chilling effect” high cost orders would have on tenants and their ability to assert their rights against landlords.
The Tribunal in Constable v Cooper & Co 9 outlined a case for approaching costs in the Tenancy Tribunal on a wider perspective than just the conventional 8 See n1 above 9 Constable v Cooper & Co Real Estate Limited [2022] NZTT 4301049, 4303368, Costs Order, 21 November 2022 [33-47] civil litigation costs principles. The Adjudicator expressed the view that for the Tribunal to “determine expeditiously disputes” and determine disputes in accordance with the “substantial merits and justice of the case” as required under s85 RTA, it should ensure that tenants and landlords are not subject to inappropriately high costs orders and that potential litigants are not deterred. An example was given of a new immigrant tenant family on a low income likely to be at an economic, social, and cultural disadvantage to a large commercial landlord. Such tenants who believe they have a legitimate claim should not be deterred from making one for fear of an unaffordable costs order. Costs should be proportionate to all the circumstances including their personal circumstances.
However, there was no evidence or suggestion that the circumstances of the tenants in this case were such as to trigger a wider perspective on costs in this case.
In summary, I find that the costs incurred by the landlord between 16 May and 28 May 2025 are reasonable as a starting point.

What is a reasonable contribution to costs?

Taking into account the factors set out in paragraph 25 above, there is a compelling case for awarding costs at the highest end (70% of actual costs) because the landlord succeeded in obtaining access orders less restrictive than many previous proposals made by the landlords, obtaining declarations that the tenants refusal to grant access was unlawful and obtaining an award of exemplary damages.
As already outlined in the Tribunal’s previous decision 10 , the tenants repeatedly acted unreasonably and unlawfully in refusing access multiple times and for sustained periods of time. Most of the tenants’ arguments for denying access lacked merit. The impact on the landlord was to cause prejudice, delay of the sales process, considerable stress, and cost. It was of significant importance and urgency for the landlord to resolve the dispute and obtain access.
I do not accept that the landlord’s refusal to agree to mediation is a factor justifying a discount of costs. I accept that the refusal was justifiable in the circumstances. The tenants cross application seeking mediation was only filed on 13 May 2025, several weeks after the landlord’s application was filed and only after there had been considerable dialogue between the parties and involving counsel acting for the landlord, all of which had failed to resolve the matter. In that regard, the tenants’ stance in pre-hearing negotiations was 10 Tenancy Tribunal order dated 15 July 2025 at [52- unreasonably obstructive. I accept that there came a point where the landlord had to “draw a line in the sand” and pursue the matter to a Tribunal hearing.
In summary, the tenants were the wrong-doers in this case which supports a higher award.
However, some discount is warranted on the basis that the hearing was of short duration, the matters in issue were not complex and the award of exemplary damages was moderate.
After carefully considering all the above matters a contribution of 55% ($2,943.97) towards actual costs is in my view reasonable.
I also follow the approach in Ikeda by cross checking the costs awarded against the District Court Rules 2014 (DCR) scale. I consider the appropriate scale is category 1A for a simple case, involving a small amount of time. It is difficult to apply the DCR sale to the Tenancy Tribunal but looking at the time allowed for a simplified trial seems appropriate. The tenants calculated that an assessment under Category 1A scale costs results in an award of $2,540. I calculate an assessment as follows: ItemTime allocation per Schedule 4 DCR Cost calculated at $1,270 incl GST/day Statement of claim-item 10.75$952.50 Preparation of bundle -item 9.130.25$317.50 Preparation for hearing-item 141.0$1,270.00 Appearance-item 15 calculated at twice the time occupied measured in half days
5$635.00 Total2.5$3,175.00
Bearing in mind the logical argument that costs in the Tribunal should be less than costs in the District Court, I am satisfied that the award assessed above of $2,943.97 is a reasonable contribution to costs and orders are made accordingly.

Topics & place

Topics are dispute themes across the order (not the same as claim-type money lines).

Exemplary damages Wellington

Residential Tenancies Act sections

s0, s1, s10, s102(2), s102(3), s2014, s24, s48, s48(3), s48(4), s85, s93

Key findings

Dispute theme: exemplary damages

Property management

Amanda Mackenzie and Katherine Mexted as Trustees for Mackenzie Family Trust (applicant)

Frequently asked questions

Common questions about this Tenancy Tribunal case.

What was Tenancy Tribunal case 5243051 about?

The tribunal order states: [The tenant/s] tenant/s] and [The tenant/s] tenant/s] must pay [The tenant/s] landlord/s] And Katherine

How much money was awarded in case 5243051?

Mexted As Trustees For Mackenzie Fam…: $2,943.97 awarded to landlord

What type of tenancy dispute was case 5243051?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5243051?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12439164-Tenancy_Tribunal_Order.pdf.

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Claims and awards in Tenancy Tribunal application 5243051. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.

Claim

Landlord

Tenant

Reason

Mexted As Trustees For Mackenzie Family Trust

$2,943.97

Mexted As Trustees For Mackenzie Family Trust

Reasons

The Tribunal must consider an application for costs by the landlord. Both parties have filed submissions on costs and this decision is made on the papers.

The Tribunal issued its substantive decision in orders dated 29 May and 15 July 2025.

The previous orders addressed the following claims from the landlord: a. Access to the premises under section 48(3) Residential Tenancies Act 1986 (RTA) to show the premises to prospective purchasers and advisers for the purpose of sale; b. A declaration that the tenants committed six separate unlawful acts pursuant to section 48(4)(b) RTA by failing, without reasonable excuse, to allow the landlord to enter the premises in circumstances in which the landlord was entitled to enter the premises under s48(3) RTA; and c. Exemplary damages for each unlawful act pursuant to section 48(4)(b) and schedule 1A RTA.

Of those claims the landlord wholly succeeded in obtaining access orders, a declaration that the tenants committed six unlawful acts and an award of exemplary damages. Whereas the landlord sought an award of exemplary damages up to the maximum of $1,500 for each of the six unlawful acts, the Tribunal awarded $1,200 in total on the basis that it has been affirmed by the District Court that the Tribunal can only order one maximum award for each unlawful act that fits under s48(4)(b) as a global order. 1

The landlord seeks an order for costs based on actual costs of $8,210 plus GST for the costs of preparing and filing the proceedings, hearing preparation and attendance, and a further $1,700 plus GST in preparing and filing their submissions on costs.

Generally, costs are not awarded in the Tribunal, except in limited circumstances. Section 102(2)(b) RTA confirms that costs may be ordered where any party is represented by counsel, as in this case. Section 102(3)(b) then provides that the Tribunal may order one party to pay the other party “the reasonable costs of that other party in connection with the proceedings.”

Under s93 RTA, parties are entitled to be represented by counsel if the amount in dispute is more than $6,000. Counsel may also appear if the Tribunal is satisfied that a party should be permitted to instruct counsel due to the nature and complexity of the issues or a disparity between the parties that affects their ability to present their case. Landlord’s position

The starting point for costs under s102(2)(b) RTA is that costs should follow the event. Here the landlord has been entirely successful both in terms of access orders and in the Tribunal’s conclusion that the tenants actions were unlawful justifying an award of exemplary damages. Therefore, costs should be awarded to the landlord.

An uplift in costs is justified because the proceedings were entirely unnecessary and were only required when the tenants unreasonably and unlawfully refused reasonable access to the landlord to show the premises to prospective purchasers. 1 Ministry of Business Innovation and Employment v Hillis Shearing Limited [2024] NZDC 27583 at [17]-[25]

The tenants also refused to enter into any reasonable agreement for access including a proposal for settlement on 13 May 2025 which was more restrictive than what was agreed at the hearing and recorded in the order of 29 May 2025.

The tenants’ actions and attitude required the landlord to seek legal advice and assistance because the tenants persistently, repeatedly, and unreasonably refused to provide access and all reasonable entreaties to negotiate otherwise. Even when the landlord engaged legal counsel, the tenants continued to refuse reasonable access.

The impact on the landlord has been significant in that she has been unable to show the property to prospective purchasers for extended periods and has undoubtedly lost opportunities for a sale.

The landlord was entitled to claim penalties for repeated unlawful acts and amend the claim accordingly. The landlord was also entitled to seek approval for representation on the grounds that the matter had become complicated and the value of the damages sought exceeded $6,000. Tenants’ position

It is not accepted that costs follow the event in the usual way with RTA proceedings given that s93 RTA specifically restricts representation to express statutory exceptions. The landlord only met one of the exceptions in s93, that the claim exceeded $6,000. Materially, the landlord’s first application lodged on 23 April 2025 sought exemplary damages up to $1,500 (“the first application”). Therefore, the landlord would have no entitlement to representation and ability to claim legal costs regarding the first application. The landlord’s second amended application lodged on 16 May 2025 was materially similar to the first application except it sought exemplary damages in excess of $6,000 (“the second application”). The Tribunal stated in its minute on 22 May 2025 (determining the request for representation) that the proceedings were not particularly complex, but the amount claimed triggered the right to representation. Therefore, any costs claimed should be restricted to attendances regarding the second application.

The claim for exemplary damages (and for representation by counsel) was based on an incorrect position at law because the Tribunal ruled that it could only make one global award for exemplary damages up to $1,500 in relation to multiple breaches/unlawful acts under the one provision.

The tenants have also incurred their own legal costs in responding to the landlord’s representation by counsel.

The landlord did not seek to resolve this matter using the Tenancy Tribunal mediation service as sought by the tenants in their cross application;

The costs sought are not reasonable, being almost ten times the damages awarded.

The costs include post hearing costs (to prepare the costs submissions) which are not claimable at law. The costs also include attendances prior to the filing of the second amended application which are not claimable at law. 2

There are several cases where the Tribunal has declined to award costs where the party was “.. fully entitled to instruct counsel but it was unnecessary ’3 or declined to award high costs in circumstances where doing so would “have a chilling effect on tenants...against landlords who are more likely to have the financial resources to instruct counsel’ 4 and because “it is relevant to have regard to the importance of preserving access to the Tribunal and the possible chilling effect of high costs orders.” 5

Cost should fall where they lie for the above reasons.

If the Tribunal is minded to award costs, it is submitted that Category 1A costs in the District Court Rules 2014 are appropriate.

The tenant also objects to the landlord’s inclusion of “without prejudice” material placed before the Tribunal particularly where the tenant says it does not reflect the extent of the communications that took place. This appears to relate to a proposal for resolution of costs which I consider is not relevant to this determination and I do not consider it. Law and analysis

Section 102(3)(b) RTA gives the Tribunal discretion to award reasonable costs where a party is represented by counsel. Beyond the requirement that the costs be reasonable the RTA does not provide any further guidance on determining the amount. It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party. What is considered to be “reasonable” costs will depend on a range of factors. In Holden v Architectural Finishes Ltd 6 Justice McGechan confirmed that one approach to costs is to start from actual costs and discount downwards to arrive at a reasonable contribution to costs. He held: “...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable 2 BC 346799 v Ikeda [2020] NZDC 3669 at [99-100], Rika-Heke v Zayachkov [2025] NZTT 515 at [45] 3 Reid-Copus v Mihajlovic [2024] NZTT 9051085 at [19] 4 Suppressed v Suppressed [2022] NZTT 4266962 at [88] 5 360 Property Management Limited v Stevens [2024] NZTT 4856282 at [9] 6 Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 contribution’ earlier determined falls within a middle range, say 40% to 70%,there is a feeling of some comfort...”

McGechan, J acknowledged that in some cases it will be necessary to determine the threshold question of whether the actual costs incurred fall within a reasonable range before deciding what a reasonable contribution to those costs should be in the circumstances. When a party is represented by counsel, there are various “shopping lists” of potentially relevant factors to consider when assessing whether the costs were reasonable and what would be a reasonable contribution. Having regard to the factors outlined in Holden, the following factors should be taken into account in this case: a. The length of the hearing; b. The sum of money involved; c. The importance of the issues to the parties generally; d. The legal and factual complexity; e. Whether urgency was required; f. Unreasonable or obdurate refusal to settle (the Calderbank procedure) and in this case to mediate; g. Whether argument lacking substance was advanced; h. The degree of success achieved by the parties

Are the costs reasonable?

Counsel for the landlord claimed in their submissions that from 13 May 2025, the landlord incurred legal costs of $8,210 plus GST in relation to the proceedings. However, based on the time records later produced as evidence, this is not correct. This figure appears to relate to time accruing since the first application was filed on 23 April 2025 until 24 June 2025 which totals $8,335.50 plus GST. In addition, the landlord seeks $1,700.00 plus GST for preparation of the costs submissions.

I find on the evidence that the actual costs claimed covers attendances from the time counsel prepared and lodged the first application and before they lodged the second application, for which legal representation would not be permitted based on the quantum claimed. The costs also cover post-hearing attendances including preparation of the costs submissions. As held in Ikeda 7 : “It is clear as a matter of law that attendances before commencement of the claim cannot be recovered, neither can post hearing attendances, by which time the Tribunal 7 Per BC 346799 v Ikeda, above n2 at [19] will be functus officio, having delivered its decision, save for its residual power to make a costs order.”

Following Ikeda, I consider that the costs which relate to counsel’s attendances prior to the filing of the second application on 16 May 2025 must be deducted from the claim because it relates to a period when the landlord was not entitled to be legally represented based on the amount of the claim, and at that point no application for representation had been made for any reason under s93, whether due to complexity or quantum. Also the costs incurred following the hearing on 28 May 2025 must be deducted from the claim. Looking at Counsel’s time records for the period from 16 May 2025 to 28 May 2025, the costs accrued are $4,654.50 plus GST, a total of $5,352.68. I consider this is the starting point for actual costs.

The tenants emphasize that the landlord was entitled to representation under s93 because of the amended damages claim in excess of $6,000. Representation was not granted by the Tribunal because it was appropriate to do so having regard to the nature and complexity of the issue involved. However, the landlord did not succeed in its application for damages in excess of $6,000 with the Tribunal ruling that the landlord was only ever entitled to a global award of $1,500 maximum for exemplary damages. Therefore, it is unreasonable for the landlord to seek legal costs for representation (and associated costs) which she was never entitled to at law.

However, I note that the Tribunal ruling was based on a relatively recent appeal decision issued by the District Court in MBIE v Hillis Shearing 8 and up until that ruling there was some considerable divergence of opinion and case law as to whether the Tribunal could order separate exemplary damages for several unlawful acts falling under the same provision or only a global award, with cases decided both ways. The wording and interpretation of the relevant section which declares what is an unlawful act is also important when determining the matter. In that regard, I consider that the claim by the landlord was not necessarily one that should not have been brought and there was an arguable case depending on the interpretation of the wording in s48(4((b).

Concerns were raised by the tenants about preserving access to the Tribunal because it is mostly a lay-persons forum and the “chilling effect” high cost orders would have on tenants and their ability to assert their rights against landlords.

The Tribunal in Constable v Cooper & Co 9 outlined a case for approaching costs in the Tenancy Tribunal on a wider perspective than just the conventional 8 See n1 above 9 Constable v Cooper & Co Real Estate Limited [2022] NZTT 4301049, 4303368, Costs Order, 21 November 2022 [33-47] civil litigation costs principles. The Adjudicator expressed the view that for the Tribunal to “determine expeditiously disputes” and determine disputes in accordance with the “substantial merits and justice of the case” as required under s85 RTA, it should ensure that tenants and landlords are not subject to inappropriately high costs orders and that potential litigants are not deterred. An example was given of a new immigrant tenant family on a low income likely to be at an economic, social, and cultural disadvantage to a large commercial landlord. Such tenants who believe they have a legitimate claim should not be deterred from making one for fear of an unaffordable costs order. Costs should be proportionate to all the circumstances including their personal circumstances.

However, there was no evidence or suggestion that the circumstances of the tenants in this case were such as to trigger a wider perspective on costs in this case.

In summary, I find that the costs incurred by the landlord between 16 May and 28 May 2025 are reasonable as a starting point.

What is a reasonable contribution to costs?

Taking into account the factors set out in paragraph 25 above, there is a compelling case for awarding costs at the highest end (70% of actual costs) because the landlord succeeded in obtaining access orders less restrictive than many previous proposals made by the landlords, obtaining declarations that the tenants refusal to grant access was unlawful and obtaining an award of exemplary damages.

As already outlined in the Tribunal’s previous decision 10 , the tenants repeatedly acted unreasonably and unlawfully in refusing access multiple times and for sustained periods of time. Most of the tenants’ arguments for denying access lacked merit. The impact on the landlord was to cause prejudice, delay of the sales process, considerable stress, and cost. It was of significant importance and urgency for the landlord to resolve the dispute and obtain access.

I do not accept that the landlord’s refusal to agree to mediation is a factor justifying a discount of costs. I accept that the refusal was justifiable in the circumstances. The tenants cross application seeking mediation was only filed on 13 May 2025, several weeks after the landlord’s application was filed and only after there had been considerable dialogue between the parties and involving counsel acting for the landlord, all of which had failed to resolve the matter. In that regard, the tenants’ stance in pre-hearing negotiations was 10 Tenancy Tribunal order dated 15 July 2025 at [52- unreasonably obstructive. I accept that there came a point where the landlord had to “draw a line in the sand” and pursue the matter to a Tribunal hearing.

In summary, the tenants were the wrong-doers in this case which supports a higher award.

However, some discount is warranted on the basis that the hearing was of short duration, the matters in issue were not complex and the award of exemplary damages was moderate.

After carefully considering all the above matters a contribution of 55% ($2,943.97) towards actual costs is in my view reasonable.

I also follow the approach in Ikeda by cross checking the costs awarded against the District Court Rules 2014 (DCR) scale. I consider the appropriate scale is category 1A for a simple case, involving a small amount of time. It is difficult to apply the DCR sale to the Tenancy Tribunal but looking at the time allowed for a simplified trial seems appropriate. The tenants calculated that an assessment under Category 1A scale costs results in an award of $2,540. I calculate an assessment as follows: ItemTime allocation per Schedule 4 DCR Cost calculated at $1,270 incl GST/day Statement of claim-item 10.75$952.50 Preparation of bundle -item 9.130.25$317.50 Preparation for hearing-item 141.0$1,270.00 Appearance-item 15 calculated at twice the time occupied measured in half days

5$635.00 Total2.5$3,175.00

Bearing in mind the logical argument that costs in the Tribunal should be less than costs in the District Court, I am satisfied that the award assessed above of $2,943.97 is a reasonable contribution to costs and orders are made accordingly.