What was Tenancy Tribunal case 5266551 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 5266551?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5266551?

The primary dispute was Rent arrears. Related themes: State of repair, Smoke alarms, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 5266551?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12558703-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5266551 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 5266551?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5266551?

The primary dispute was Rent arrears. Related themes: State of repair, Smoke alarms, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 5266551?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12558703-Tribunal_Order_Redacted.pdf.

41B Sean Fitzpatrick Place, Papatoetoe, Auckland 2025 Tenancy Tribunal Case 5266551 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants name and identifying details.
John Raymond Atkinson must pay [The tenant/s] $0.00 immediately for exemplary damages, filing fee and rent refund, as calculated, and set out below:

Reasons

Both parties attended the hearing. I apologise to the parties for the lateness of this order.
This is a landlord application and a cross application from the tenants. The landlords seek to claim rent arrears, reimbursement of the filing fee and refund of the bond.
The tenants make the following claims: -Failure to lodge the bond. -Failure to maintain the property. -Unlawful residential premises. -Bond refund. -Compensation and exemplary damages. -Reimbursement of the filing fee. Background:
Ms Kaur answered an advertisement for a two bedroom unit for $320.00 per week which included water, power and Wi-Fi and moved into the unit on 11 February 2022. On 23 February 2023 Mr Singh moved into the unit and the rent was increased to $350.00 per week.
The unit was a converted garage. The unit had no separate letter box or rubbish bin. The unit was listed as 41 B and attached was a separate unit (listed as 41 A) and the main house (listed as 41). Unit 41 B does not exist. Auckland City Council(“ACC”) confirmed that the property consisted of the main house (41) and the separate self-contained unit (41 A) and a garage.
The tenants claimed that this was an unconsented premises.
The landlord confirmed that the unit had previously been managed by Ray White Real Estate, until the Property Manager advised that they no longer manage the property as it was unconsented and non-compliant with Auckland City Council regulations. That was prior to the tenants moving into the property.
The landlord claimed that he had purchased the whole property in 2006 and the unit was already in existence at that time. Landlord claims:
The landlord has applied for rent arrears and has provided rent records which they say proves the amount owing.
The tenants accept they owe rent arrears but dispute the amount.
After discussions with the parties the rent arrears were found to be $1400.00. The rent arrears will be deducted from any compensation and/or exemplary damages awarded to the tenants.
The bond refund and filing fee are to be considered after the tenant’s application. Tenants’ claims:

Was this property an unlawful residential premise?

The unit was originally a garage which had been converted to a two- bedroomed unit with a small kitchen, bathroom, and lounge.
The tenants had issues with flooding during the tenancy due to the unit being on ground level.
The tenants contacted the ACC and obtained a copy of relevant documents, which indicated that the garage was constructed in 1970’s and that there were no consents, permits or Certificates of Acceptance showing for a conversion to a unit or for the use of kitchen facilities.
ACC correspondence shown to the Tribunal confirms that 41B was an unconsented converted garage
The tenants therefore claims that the premises were unlawful.
The Tribunal may declare premises to be unlawful residential premises. See section 77(2)(ac) and s78A Residential Tenancies Act 1986 (“RTA”).
There is now extensive jurisprudence as to what constitutes an unlawful premise.
The public policy behind the introduction of s 78A of the RTA was to discourage landlords from renting out properties that were, for example, unconsented or unlawful and had therefore never been subject to the need to meet legal requirements to ensure their safe and healthy occupation by tenants.
The landlord is in breach of section 45(1)(c) of the RTA because they have not complied with all enactments that apply to the premises (here the Building Act 2004 and probably the Resource Management Act 1991). I also consider the landlord is in breach of section 36 of the Act, because there is no evidence to establish that the landlord took all reasonable steps to ensure that there were no legal impediments to the occupation of the converted garage for residential use.
In the present case, I am satisfied that the tenants have provided evidence from Auckland Council which proves the garage was not consented to be used for residential purposes.
The consent process is not merely a box ticking exercise and will involve, for example, a focus on fire protection, a means of escape from fire, protection of other property, sanitary facilities, structural performance, fire rated walls and general compliance with the building code.
Compensation therefore should be awarded to reflect the fact that the premises was not legally able to be rented as residential premises.
I find that the unit was an unlawful residential premises. I accept that the tenants have had the benefit of the use of the unit for five years and there is some value attached to that. However, this unit should not have been rented out as it was an unlawful residential premises. The Landlord were aware before this tenancy after Ray White real Estate withdrew from managing the property due to its unconsented status.
I find that the landlord must refund one third of all the rent paid during this tenancy. The period from 11 February 2022 to 11 February 2023 the tenant paid $320.00 per week over 52 weeks which comes to $16640.00. I/3 share of that rent is $5546.60. From 13 February 2023 to 5 May 2025 at $350.00 per week equates to $39,200.00. 1/3 share of that rent is $13,066.33. The total rent refund from 11 February 2022 to 5 May 2025 is $18,612.93. Failure to maintain:
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986, (“RTA”).
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health, and safety.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The starting position for this discussion is that this was an unconsented and unlawful residential premises. The property had no external windows in it, only ranch sliders at the front of the unit that had no opening windows.
However, in addition to that fact, the following issues were raised repeatedly with the landlord: -The rangehood did not vent outside the property. -The lights in the lounge area were hanging out of the ceiling. The lights in the bedroom fell out of their sockets. -The HRV and the heat pump were not working. -The unit flooded and the carpets were soaked. -The toilet cistern was propped up by a piece of wood. -The bathroom vanity was coming away from the wall. -There were no smoke alarms.
In response to these claims the landlord states that he bought a rangehood for the kitchen and had a neighbour install it. The landlord did not know that it had been installed incorrectly and was not venting outside the unit.
The landlord said that the toilet cistern was broken but a suitable solution was to prop a piece of wood behind the toilet. The alternative option was to replace the toilet and that was expensive.
The landlord made no further response regarding the broken heat pump, HRV, light fitting, vanity, lack smoke alarms and not drying out the carpets after the floods.
The tenants have provided emails and texts to the landlord complaining of maintenance issues and the lack of assistance with repairs. I find the landlord knew of the maintenance and repairs needed to be done to the unit but failed to remedy these issues.
I find the landlord has committed an unlawful act.
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.
There can be no excuse for failing to maintain the property. The issues were of significance and not minor nature when considered as a whole. The tenants were paying rent to live in this property and so should be entitled to have a home that is compliant with the RTA and the tenancy agreement.
I am awarding a nominal exemplary damage as I am also refunding one third of the total rent paid by the tenants. I award $100.00 in exemplary damages for the landlord’s failure to maintain the property. Unlawful entry:
[The tenant/s] claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenants gave detailed accounts of the landlord, (Susan and the landlords son Jonathan), coming repeatedly to the unit. They described how they would knock on the door, open the door, and come into without permission. Jonathan would knock loudly and become verbally abusive, making racist comments about the tenants, if he was not granted entrance to the unit.
The tenants provided emails and texts complaining to the landlord that Jonathan and Susan were coming into their unit, even during the Covid Lockdowns, without permission from the tenants.
The landlord stated that initially they were friends, and she was welcome at the unit. Jonathan was only at the property in the last year of the tenancy, after his release from prison. Susan was overseas for a large part of 2023/24 and Jonathan was initially expected to help his father who was very ill. Unfortunately, Jonathan caused significant issues for the landlord and eventually the landlord had to obtain the assistance of the police to remove Jonathan from the property.
I find they have committed an unlawful act.
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.
I acknowledge that Mrs Kaur is vulnerable due to her healthy issues. However, the tenant had the right to close their doors and be permitted to reside in their home without unwanted interruptions from the landlord, even if they live onsite.
I am awarding a nominal award of exemplary damages due to the rent reduction I am also awarding. I award $100.00 in exemplary damage for the landlord’s breach of the right of entry. Harassment:
[The tenant/s] claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants claim that Susan made derogatory comments about Mrs Kaur personal character to Mr Singh. Mr Atkinson is alleged to have made sexual comments to Mrs Kaur such as “how come you are fat; you were sexy before” and “how’s your milk factory working.”
I have already found that the landlord ( Susan and Jonathan), would knock on the door to the unit , open the door and come into without permission. Jonathan would knock loudly and become verbally abusive, making racist comments about the tenants, if he was not granted entrance to the unit.
I find that the landlord has harassed the tenants and have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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.
There can be no reasonable excuse or explanation for a landlord to make racist, and sexual comments to a tenant.
I am awarding the tenants a nominal amount $100 in exemplary damages given the rent reduction. Failing to lodge bond:
[The tenant/s] claims the landlord has 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 landlord accepts that they did not lodge the bond with the bond centre. I find they have committed an unlawful act.
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.
The landlord has rented out this unit and the self-contained unit next door for a number of years. Therefore, the landlord is an experienced landlord and should be aware of his obligations under the Residential Tenancies Act 1986 (“RTA”).
The landlord accepted that they had not filed the bond within 23 working days. They say they did not intend to commit this breach, and that the tenant’s bond had gone into a bank account.
I find the landlord has committed an unlawful act.
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.
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten or did not realise, they had to do so, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement (Jones v Ying [2001] NZTT Auckland 2783/01).
In TMT Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 the Judge said “Parliament's intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law." Para 37.
I award the tenants exemplary damages of $100.00 for the landlord’s failure to lodge the bond, this takes into account: •That the breach was for nearly 2 years. •That the tenant was placed in an uncertain position because the landlord did not lodge their bond. •That it is in the public interest to deter landlord’s from failing to lodge bond.
The landlord is to refund the sum of $640.00 immediately to the tenants which represents the amount they paid the landlord in bond. Retaliatory notice:
On 15 April 2025 , the landlord gave the tenant a notice ending the tenancy on 1 May 2025. The tenant claims the notice is retaliatory.
Tribunal may declare retaliatory notice of no effect: section 54 RTA S54 (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. S54(2)If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. S54(3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no
The purpose behind the Tribunal having the power to declare a termination notice retaliatory and of no effect is to prevent landlords from discriminating against those who assert their rights as tenants or make complaints by ending their tenancy.
S54 of the RTA is designed to protect tenants but not from the legitimate decision any landlord may make to sell their property.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
The tenant says that when they complained about the failure to maintain and the information from the council, several days later the notice to vacate was sent .
I cannot determine whether the landlord gave notice in retaliation or after realising the extent of the work required to be done on an unconsented residential property.
I do not find that the landlord has committed an unlawful act. Filing fee/Suppression/bond: Given my findings I am not awarding the filing fee nor refunding the bond to the landlord.
The landlord is to refund the bond of $640.00 immediately to the tenants.
Because Arshdeep Kaur and Gurlal Singh has substantially succeeded with the claim I have reimbursed the filing fee.
The tenants have applied for suppression of their name and identifying details, and as they have been successful, I am granting suppression.

Tenancy Tribunal case 5266551 — Rent arrears at 41B Sean Fitzpatrick Place, Papatoetoe, Auckland 2025

At a glance

Tenancy Tribunal case 5266551 — Rent arrears at 41B Sean Fitzpatrick Place, Papatoetoe, Auckland 2025

At a glance

Claims & awards

Order

Reasons

Was this property an unlawful residential premise?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was this property an unlawful residential premise?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions