What was Tenancy Tribunal case 5276768 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 5276768?

Compensation: Break Lease Fee: $710.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5276768?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5276768?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12010896-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5276768 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 5276768?

Compensation: Break Lease Fee: $710.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5276768?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5276768?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12010896-Tribunal_Order_Redacted.pdf.

46 Meachem Road, Chartwell, Hamilton 3210 Tenancy Tribunal Case 5276768 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5276768 — net $1,087.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Break lease fee	$710.00	Break lease fee
Exemplary damages: Breach of s 44A	$350.00	Breach of s 44A
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,087.00
Total payable by Landlord to Tenant	$1,087.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ name.
Staywell Property Management must pay [The tenant/s] $1,087.00 immediately, calculated as shown in table below.

Reasons

[Tenant 1] attended the hearing, representing himself and [Tenant 2]. Mr Chen, property manager representing the landlord, also attended the hearing.
Both parties agree that: a)[Tenant 1] and [Tenant 2] are both tenants. [Tenant 2] is named on the tenancy agreement as a tenant. [Tenant 1] signed the agreement, however is not named as a tenant. b)Staywell Property Management is the agent for the landlord. Staywell has acted as the property manager and agent of the landlord from when the property was advertised for rent even though Staywell’s name is not on the tenancy agreement.
The definition of ‘landlord’ in section 2 of the Residential Tenancies Act 1986 (RTA) means “the grantor of a tenancy of the premises under the agreement, and, where appropriate includes......(e) the agent of a landlord”. Staywell granted the tenancy to the tenants and has been the only contact point for the tenancy. Therefore Staywell is considered to be the landlord.
The tenants’ claim: a) refund of the early termination fee they paid the landlord and exemplary damages for being charged the early termination fee, b) termination of the tenancy before the end of the fixed term, and c) reimbursement of the filing fee.
The tenancy commenced on 28 November 2024 for a fixed term due to expire on 28 November 2025. The rent is $710.00 per week. Was the landlord entitled to charge the early termination fee? If not, are the tenants entitled to a refund of the fee and exemplary damages?
The usual legal position with a fixed term tenancy contract is that the term of the contract is strictly applied and can only be broken by agreement between the parties or by an order from the Tribunal.
In mid-May 2025 the tenants contacted the landlord to explore options for early release from their fixed term tenancy as they were considering purchasing a house.
In response Mr Chen confirmed that the landlord/owner who would consider an earlier termination as long as the tenants agree to pay an early termination fee of one week’s rent + GST ($710 + $106.50), pay rent until the next tenant starts paying rent, and provide 28 days’ notice of when they are moving out.
The tenants responded that they cover any reasonable costs associated with advertising for new tenants or any re-letting fees the property but were concerned those costs would be less than the fee required by the landlord. They suggested as an alternative but Mr Chen advised that was not an option.
The tenants told Mr Chen their understanding was that landlords were able to recover reasonably incurred costs but could not charge a set fee. They had talked to other property managers who advised them that $710 was more than they usually charged as reasonably incurred expenses when a fixed term tenancy ends early.
Mr Chen/Staywell refused to advertise the property until the fee was paid, albeit that the gst component was not pursued. The tenants paid $710.00 to ensure the property was advertised and then filed their claim with the Tribunal.
Section 44A of the Residential Tenancies Act 1986 (RTA) provides that a landlord is entitled to recover from an outgoing tenant any expenses reasonably incurred by the landlord in respect of the agreement. However the landlord must provide to the tenant an itemised account of those expenses incurred before they seek recovery from the tenant.
Section 11 of the RTA makes it clear that any provision in a tenancy agreement that is contrary to the provisions of the RTA has no effect.
In relation to this claim, the landlord has charged and required payment of a set or fixed fee which is in breach of section 44A. Any suggestion that the tenants have agreed to pay the set fee charged is of no effect and therefore is not binding on the tenants. Therefore the fee charged is in contravention of the RTA.
At this point the tenancy premises has not been relet and the landlord has not provided any itemised list of expenses as required under s 44A. Therefore, as claimed by the tenants, the landlord is to reimburse the $710.00 payment.
For clarity this decision does not prevent the landlord from charging the reasonable costs incurred as long as the requirements in s 44A are followed. Exemplary damages
Exemplary damages may be awarded when a provision of the RTA is breached which is stated to be an unlawful act, and where the party that has committed an unlawful act intentionally and the Tribunal is satisfied that it would be just to make an award having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest 1 .
Exemplary damages are not compensatory in nature, but are a penalty that is applied in cases of serious breach, to mark the Tribunals’ disapproval of the manner in which that occurred and deter a party from future such offences.
In Birch v Otautahi Community Housing Trust 2 the District Court said: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed 1 section 109 and Schedule 1A 2 [2020] NZDC 17667 ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
Breaching s44A is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00 3 .
In this case, after initially raising concerns about the set fee they were told to pay, the tenants further raised with the landlord by email: •on 26 May 2025: that the tenancy services website states that reasonable costs only can be charged 4 ; •on 28 May 2025: that they discussed the costs chargeable with Tenancy Services, the real estate agent they are buying their house through and their solicitor, and that they all agree that the landlord can recover fees directly related to the re-tenanting of a property after they are incurred; and that an itemised account of the costs sought must be provided before the recovery of costs occurs. They advised the landlord that Tenancy Services told them it was “unlawful to request any payment up front”.
Mr Chen responded to the tenants’ email of 28 May by saying that if the tenants “remained unsatisfied with the current terms” they had the options of the landlord not proceeding to look for a new tenant or paying the fee so that the process of advertising can start.
As a result of Mr Chen’s response, the tenants felt they had no choice but to pay the fee.
It was clear to me in the hearing that Mr Chen was not aware that the law did not allow for a set fee to be charged up front in situations such as this. The tenants advised what their understanding of the law was and where they had gained that information, however Mr Chen admitted that he did not investigate to see if what they were telling him was correct. I find his actions were intentional.
The tenants have had to pay a fee up front which they knew the landlord was not entitled to. They have had to put time and effort into investigating the law and explaining it to the landlord. The tenants say it has turned an exciting time in their lives (the buying of their first house) into a scary and stressful time.
It is in the public interest that landlords understand their legal rights and obligations. Section 44A came into force in February 2021. It was designed to end the practise of landlord’s charging a set break lease fee and instead seeking reimbursement for actual costs incurred. 3 section 44A(3) and Schedule1A, RTA. 4 26 May 2025 by email
I find in the circumstances it is just to make an order for exemplary damages of $350.00 being 50% of the maximum amount for such a breach.

Should the fixed term tenancy be reduced?

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) RTA.
"Unforeseen" is not defined in the Act and has a meaning in accordance with its dictionary definition. The term “unforeseen” has a dictionary definition of “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”; that is: “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk” 5 .
For the Tribunal to be able to consider whether the fixed term should be reduced the tenants need to establish that there has been an unforeseen change in their circumstances which has caused them severe hardship. If that is established, the tenants then need to show that the hardship that they would suffer is greater than the hardship the landlord would suffer if the term was reduced.
The tenants want the Tribunal to terminate their tenancy on 6 July 20205, which is the date they are intending to vacate the property. They say the dealings with the landlord regarding ending the tenancy early have been stressful. This includes that they gave the landlord notice on 24 May that the property would be available from 6 July (being 43 days’ notice) but that the landlord did not advertise the property until 7 June, which is one week after they paid the fee, and that the advertisement was not a correct description of the property.
However the tenants’ reasons for wanting the Tribunal to reduce the term of the tenancy and terminate it on 6 July do not meet the threshold of proving there has been an unforeseen change in their circumstances. Therefore I must decline to reduce the term of the tenancy. Other matters 5 Bond v Tang, Invercargill TT, 09/00583/IN, 25 August 2009
As the tenants have been mainly successful in their claim the landlord is to reimburse them the filing fee.
Name suppression is available to the substantially successful party, which in this case is the tenant. The tenant has requested name suppression therefore a suppression order is made.
I note that the tenant has shown that the description of the property the landlord has used in advertising the property is incorrect, and appears to apply to a completely different property.
I also note that nothing in my decision prevents the tenants from bringing a future claim in the event that they believe the landlord’s actions in not advertising the premises until they had paid the $710.00 fee or in advertising the property incorrectly has caused a delay in finding new tenants and is not reflected in what they are required to pay to the landlord.

Claims and awards in Tenancy Tribunal application 5276768 — net $1,087.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Break lease fee	$710.00	Break lease fee
Exemplary damages: Breach of s 44A	$350.00	Breach of s 44A
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,087.00
Total payable by Landlord to Tenant	$1,087.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ name.
Staywell Property Management must pay [The tenant/s] $1,087.00 immediately, calculated as shown in table below.

Reasons

[Tenant 1] attended the hearing, representing himself and [Tenant 2]. Mr Chen, property manager representing the landlord, also attended the hearing.
Both parties agree that: a)[Tenant 1] and [Tenant 2] are both tenants. [Tenant 2] is named on the tenancy agreement as a tenant. [Tenant 1] signed the agreement, however is not named as a tenant. b)Staywell Property Management is the agent for the landlord. Staywell has acted as the property manager and agent of the landlord from when the property was advertised for rent even though Staywell’s name is not on the tenancy agreement.
The definition of ‘landlord’ in section 2 of the Residential Tenancies Act 1986 (RTA) means “the grantor of a tenancy of the premises under the agreement, and, where appropriate includes......(e) the agent of a landlord”. Staywell granted the tenancy to the tenants and has been the only contact point for the tenancy. Therefore Staywell is considered to be the landlord.
The tenants’ claim: a) refund of the early termination fee they paid the landlord and exemplary damages for being charged the early termination fee, b) termination of the tenancy before the end of the fixed term, and c) reimbursement of the filing fee.
The tenancy commenced on 28 November 2024 for a fixed term due to expire on 28 November 2025. The rent is $710.00 per week. Was the landlord entitled to charge the early termination fee? If not, are the tenants entitled to a refund of the fee and exemplary damages?
The usual legal position with a fixed term tenancy contract is that the term of the contract is strictly applied and can only be broken by agreement between the parties or by an order from the Tribunal.
In mid-May 2025 the tenants contacted the landlord to explore options for early release from their fixed term tenancy as they were considering purchasing a house.
In response Mr Chen confirmed that the landlord/owner who would consider an earlier termination as long as the tenants agree to pay an early termination fee of one week’s rent + GST ($710 + $106.50), pay rent until the next tenant starts paying rent, and provide 28 days’ notice of when they are moving out.
The tenants responded that they cover any reasonable costs associated with advertising for new tenants or any re-letting fees the property but were concerned those costs would be less than the fee required by the landlord. They suggested as an alternative but Mr Chen advised that was not an option.
The tenants told Mr Chen their understanding was that landlords were able to recover reasonably incurred costs but could not charge a set fee. They had talked to other property managers who advised them that $710 was more than they usually charged as reasonably incurred expenses when a fixed term tenancy ends early.
Mr Chen/Staywell refused to advertise the property until the fee was paid, albeit that the gst component was not pursued. The tenants paid $710.00 to ensure the property was advertised and then filed their claim with the Tribunal.
Section 44A of the Residential Tenancies Act 1986 (RTA) provides that a landlord is entitled to recover from an outgoing tenant any expenses reasonably incurred by the landlord in respect of the agreement. However the landlord must provide to the tenant an itemised account of those expenses incurred before they seek recovery from the tenant.
Section 11 of the RTA makes it clear that any provision in a tenancy agreement that is contrary to the provisions of the RTA has no effect.
In relation to this claim, the landlord has charged and required payment of a set or fixed fee which is in breach of section 44A. Any suggestion that the tenants have agreed to pay the set fee charged is of no effect and therefore is not binding on the tenants. Therefore the fee charged is in contravention of the RTA.
At this point the tenancy premises has not been relet and the landlord has not provided any itemised list of expenses as required under s 44A. Therefore, as claimed by the tenants, the landlord is to reimburse the $710.00 payment.
For clarity this decision does not prevent the landlord from charging the reasonable costs incurred as long as the requirements in s 44A are followed. Exemplary damages
Exemplary damages may be awarded when a provision of the RTA is breached which is stated to be an unlawful act, and where the party that has committed an unlawful act intentionally and the Tribunal is satisfied that it would be just to make an award having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest 1 .
Exemplary damages are not compensatory in nature, but are a penalty that is applied in cases of serious breach, to mark the Tribunals’ disapproval of the manner in which that occurred and deter a party from future such offences.
In Birch v Otautahi Community Housing Trust 2 the District Court said: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed 1 section 109 and Schedule 1A 2 [2020] NZDC 17667 ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
Breaching s44A is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00 3 .
In this case, after initially raising concerns about the set fee they were told to pay, the tenants further raised with the landlord by email: •on 26 May 2025: that the tenancy services website states that reasonable costs only can be charged 4 ; •on 28 May 2025: that they discussed the costs chargeable with Tenancy Services, the real estate agent they are buying their house through and their solicitor, and that they all agree that the landlord can recover fees directly related to the re-tenanting of a property after they are incurred; and that an itemised account of the costs sought must be provided before the recovery of costs occurs. They advised the landlord that Tenancy Services told them it was “unlawful to request any payment up front”.
Mr Chen responded to the tenants’ email of 28 May by saying that if the tenants “remained unsatisfied with the current terms” they had the options of the landlord not proceeding to look for a new tenant or paying the fee so that the process of advertising can start.
As a result of Mr Chen’s response, the tenants felt they had no choice but to pay the fee.
It was clear to me in the hearing that Mr Chen was not aware that the law did not allow for a set fee to be charged up front in situations such as this. The tenants advised what their understanding of the law was and where they had gained that information, however Mr Chen admitted that he did not investigate to see if what they were telling him was correct. I find his actions were intentional.
The tenants have had to pay a fee up front which they knew the landlord was not entitled to. They have had to put time and effort into investigating the law and explaining it to the landlord. The tenants say it has turned an exciting time in their lives (the buying of their first house) into a scary and stressful time.
It is in the public interest that landlords understand their legal rights and obligations. Section 44A came into force in February 2021. It was designed to end the practise of landlord’s charging a set break lease fee and instead seeking reimbursement for actual costs incurred. 3 section 44A(3) and Schedule1A, RTA. 4 26 May 2025 by email
I find in the circumstances it is just to make an order for exemplary damages of $350.00 being 50% of the maximum amount for such a breach.

Should the fixed term tenancy be reduced?

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) RTA.
"Unforeseen" is not defined in the Act and has a meaning in accordance with its dictionary definition. The term “unforeseen” has a dictionary definition of “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”; that is: “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk” 5 .
For the Tribunal to be able to consider whether the fixed term should be reduced the tenants need to establish that there has been an unforeseen change in their circumstances which has caused them severe hardship. If that is established, the tenants then need to show that the hardship that they would suffer is greater than the hardship the landlord would suffer if the term was reduced.
The tenants want the Tribunal to terminate their tenancy on 6 July 20205, which is the date they are intending to vacate the property. They say the dealings with the landlord regarding ending the tenancy early have been stressful. This includes that they gave the landlord notice on 24 May that the property would be available from 6 July (being 43 days’ notice) but that the landlord did not advertise the property until 7 June, which is one week after they paid the fee, and that the advertisement was not a correct description of the property.
However the tenants’ reasons for wanting the Tribunal to reduce the term of the tenancy and terminate it on 6 July do not meet the threshold of proving there has been an unforeseen change in their circumstances. Therefore I must decline to reduce the term of the tenancy. Other matters 5 Bond v Tang, Invercargill TT, 09/00583/IN, 25 August 2009
As the tenants have been mainly successful in their claim the landlord is to reimburse them the filing fee.
Name suppression is available to the substantially successful party, which in this case is the tenant. The tenant has requested name suppression therefore a suppression order is made.
I note that the tenant has shown that the description of the property the landlord has used in advertising the property is incorrect, and appears to apply to a completely different property.
I also note that nothing in my decision prevents the tenants from bringing a future claim in the event that they believe the landlord’s actions in not advertising the premises until they had paid the $710.00 fee or in advertising the property incorrectly has caused a delay in finding new tenants and is not reflected in what they are required to pay to the landlord.

Tenancy Tribunal case 5276768 — Exemplary damages at 46 Meachem Road, Chartwell, Hamilton 3210

At a glance

Tenancy Tribunal case 5276768 — Exemplary damages at 46 Meachem Road, Chartwell, Hamilton 3210

At a glance

Award balance

Claims & awards

Order

Reasons

Should the fixed term tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the fixed term tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions