What was Tenancy Tribunal case 5328012 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $1,545.75

How much money was awarded in case 5328012?

Property Damage: $500.00 awarded to tenant; Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5328012?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5328012?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12635742-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5328012 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $1,545.75

How much money was awarded in case 5328012?

Property Damage: $500.00 awarded to tenant; Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5328012?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5328012?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12635742-Tenancy_Tribunal_Order.pdf.

16 Black Shed Road, Flat Bush, Auckland 2019 Tenancy Tribunal Case 5328012 — Exemplary damages

Reasons

Claims and awards in Tenancy Tribunal application 5328012 — net $1,545.75 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Release of balance of bond	$1,017.75	Release of balance of bond
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$1,545.75
Total payable by Landlord to Tenant	$1,545.75

Both parties attended the video hearing.

The tenant has applied for refund of the balance of the bond. The tenant paid a bond of $1,920.00 to the landlord at the commencement of the tenancy. The tenant has received a repayment of $902.25 from the landlord, leaving a balance of $1,017.75 owing. The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services.

Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim.

The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded in full to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.

The tenant claims the landlord failed to lodge the bond with the Bond Centre within the required period.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (see s 19(1) Residential Tenancies Act 1986). This applies whether the bond is paid in part or whole.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 (see s 19(2) and Schedule 1A RTA.

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) RTA).

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, 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 and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).

The landlord is an experienced landlord. He accepted that he was aware of his obligations. That the bond has still not been lodged as of the date of this hearing is an aggravating factor.

I am not aware of previous applications to the Tribunal relating to this landlord and a failure to lodge a bond. In those circumstances, I consider a modest award of exemplary damages to be appropriate. The landlord is ordered to pay exemplary damages of $500.00.

As [The tenant/s] has wholly succeeded with the claim I must order the landlord to reimburse the filing fee.

The landlord applied for name suppression. The landlord has not been wholly or substantially successful in this hearing. The landlord’s application for name suppression is dismissed.

Claims and awards in Tenancy Tribunal application 5328012 — net $1,545.75 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Release of balance of bond	$1,017.75	Release of balance of bond
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$1,545.75
Total payable by Landlord to Tenant	$1,545.75

Order

[The landlord/s] must pay [The tenant/s] $1,545.75 immediately.

Reasons

Both parties attended the video hearing.
The tenant has applied for refund of the balance of the bond. The tenant paid a bond of $1,920.00 to the landlord at the commencement of the tenancy. The tenant has received a repayment of $902.25 from the landlord, leaving a balance of $1,017.75 owing. The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services.
Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded in full to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.
The tenant claims the landlord failed to lodge the bond with the Bond Centre within the required period.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (see s 19(1) Residential Tenancies Act 1986). This applies whether the bond is paid in part or whole.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 (see s 19(2) and Schedule 1A RTA.
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) RTA).
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, 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 and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
The landlord is an experienced landlord. He accepted that he was aware of his obligations. That the bond has still not been lodged as of the date of this hearing is an aggravating factor.
I am not aware of previous applications to the Tribunal relating to this landlord and a failure to lodge a bond. In those circumstances, I consider a modest award of exemplary damages to be appropriate. The landlord is ordered to pay exemplary damages of $500.00.
As [The tenant/s] has wholly succeeded with the claim I must order the landlord to reimburse the filing fee.
The landlord applied for name suppression. The landlord has not been wholly or substantially successful in this hearing. The landlord’s application for name suppression is dismissed.

Tenancy Tribunal case 5328012 — Exemplary damages at 16 Black Shed Road, Flat Bush, Auckland 2019

At a glance

Tenancy Tribunal case 5328012 — Exemplary damages at 16 Black Shed Road, Flat Bush, Auckland 2019

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions