Published tribunal order
Tenancy Tribunal case 5296822 — Tenancy dispute
Decided 30 Sept 2025 · Published 30 Sept 2025 · Application 5296822
- Boarding House
- 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 Tenant’s name and identifying details.
- By way of declaration, the Tribunal confirms that it has jurisdiction to consider this application.
- Jono Russell must pay [The tenant/s] $1,427.00 immediately, calculated as shown in table below:
Reasons
- Both parties attended the remote hearing.
- The tenanted premises are a 4 bedroom house on a section. There is a cottage at the back of the section. The property is owned by Jono Russell, who I will refer to as the “landlord” in this decision. Jurisdiction
- There is a preliminary issue whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
- Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement
- Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
- Section 5(1)(n) RTA provides that the Tribunal will not have jurisdiction ; “where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlords or owners family”.
- The background is that the tenant saw an advertisement for a room to let. She approached the landlord. The landlord indicated that he had a room to let and that the tenant would be living in the house with the landlord and another flatmate. The landlord produced a “Flat/house - sharing agreement” which the parties signed. That agreement indicates that the Tribunal would not have jurisdiction to consider any disputes between the parties.
- The Tribunal has jurisdiction to consider disputes between landlords and tenants. It does not have jurisdiction to consider disputes between tenants or between flatmates. Whilst the tribunal must take into account any agreements entered into by parties, of more weight will be the actual living arrangements and whether those arrangements fall within the jurisdiction of the Tribunal.
- Despite having initially indicated that he intended to move into the premises, for personal reasons, the landlord did not move into the premises.
- The reality of the situation was that the landlord was the grantor of a tenancy of the premises. That may not have been the situation had the landlord moved into the premises himself. Had that occurred, the exclusion in section 5(1)(n) RTA may have applied. That is not what occurred, and I am therefore not required to consider the exclusion.
- In the circumstances as described above, I have no difficulty in finding that this was a tenancy and that the Tribunal does have jurisdiction. Having come to that finding, I move on to consider the tenant’s claim for the bond. Bond
- A bond of $1,000.00 was paid by the tenant to the landlord. The landlord did not dispute this. Further, there was no dispute that the bond had not been paid to the Bond Centre by the landlord as required by s.19 RTA, nor has it been released to the Tenant.
- The landlord is ordered to pay the bond of $1,000.00 to the tenant.
- The tenant did not apply for exemplary damages for the breach of the landlord responsibilities to lodge the bond. The District Court has held in Maria Cavanagh v Kainga Ora [2022] NZDC 7003 that in those circumstances, the Tribunal can consider an award of damages in compensation. It is clear that the failure to return the bond has caused the tenant no small inconvenience and stress. More than four months has passed since the end of the tenancy. In those circumstances, the landlord is ordered to pay $400.00 to the tenant in general damages.
- The landlord says that money is owing by the tenant for power and internet. No evidence was provided to support that contention. Section 22 B RTA requires a landlord to file a separate application with the Tribunal where the landlord seeks to retain some or all of the bond. The landlord has not done so. In passing, I record for the benefit of the parties that a tenant will only be liable for power or internet usage that is exclusively attributable to the tenant’s use. A landlord may not arbitrarily attribute usage to a tenant without a separate meter for that use.
- As [The applicant/s] has wholly succeeded with the claim I must order the landlord to reimburse the filing fee.
- The tenant applied for name suppression. The tenant has been wholly successful in this application. Suppression of the tenant’s name and details is ordered.