Published tribunal order
Tenancy Tribunal case 5341461 — Exemplary damages at Room 2, 10 Elizabeth, Petone, Lower Hutt 5012
Decided 5 Dec 2025 · Published 5 Dec 2025 · Application 5341461
- Exemplary damages
Order
- [The tenant/s] party] also known as WL Burchell also known as Llewellyn Burchell must pay [The tenant/s] tenant/s] $3,108.00 immediately.
Reasons
- Mr Smith and Mr Sim attended the hearing held on the 3 December 2025. Mrs Sim also attended the hearing for a short time. Mr Burchell did not attend the hearing. I telephoned Mr Burchell twice on the phone number in the application and neither call was answered.
- The tenant was a boarding house tenant who lived at the boarding house premises from the 31 August 2023 to the 18 December 2024. The tenant says that since leaving he has not been able to get his bond returned.
- The tenant seeks: • His bond of $1680 to be paid to him; and • claims that the landlord failed to lodge the bond with the Bond Centre. He seeks exemplary damages for this breach. • That the landlord breached s17 of the Residential Tenancies Act 1986 (RTA) by asking for $60.00 key money. The tenant seeks exemplary damages for this breach.
- The tenant says that when he agreed to take this tenancy he was in somewhat of a desperate situation. He says that he signed an agreement which is called a ‘Guest Home Rental Agreement’ dated 5 August 2023 to take a room in a boarding house (The first agreement). Later, when Mr Burchell was no longer operating the boarding house, he signed a second agreement on the 8 November 2023 with Bed Shed Limited (who I am told owned the premises) (The second agreement). Mr Sim is listed as the contact person in the second agreement and confirms that at the time he was managing the tenancies in the premises and was the director of Bed Shed Limited.
Was the premises a boarding house tenancy?
- In previous proceedings TT 4769800, 480465 1 , involved another tenant who was in another room at the same premises and had signed an agreement also dated August 2023, Mr Burchell challenged the agreement on the basis that it was a flatmate agreement, and that the Tribunal has no jurisdiction.
- The Tribunal held in that case that that tenant had a boarding house tenancy agreement and therefore was subject to the Residential Tenancies Act 1986 (RTA) and subject to the Tribunal’s jurisdiction.
- The agreement in the above case and the first agreement with Mr Smith are almost identical. They involve the same boarding house and therefore I am satisfied that Mr Smith’s tenancy was in fact, a boarding house tenancy. 1 Tenant v Al Burcher and Bed Shed Limited, TT 4769800 and 4804657, 5 April 2024.
- Mr Sim nor Bed Shed disputed the jurisdiction. They accept that this was a boarding house tenancy to which the RTA applies. The first agreement
- There have been numerous cases in the Tribunal where tenants have entered into agreements that are identical to or similar to the first agreement that Mr Smith entered into.
- Mr Burchell has often argued in those cases firstly, that the agreements were not tenancy agreements, and secondly that he is not the landlord.
- I have already determined that the agreement that Mr Smith signed dated 23 August 2023 was a boarding house tenancy agreement.
- In TT 4838229 Adjudicator Woodhouse had to adjudicate on claims that involved an agreement that was almost identical to the one that Mr Smith signed. Adjudicator Woodhouse in his decision said:
- The rental agreement is problematic in many ways and would not be of a standard expected between a professional landlord and tenant.
- I consider the agreement was most likely drafted in a way intending to beguile the tenant into considering she was not protected by the RTA. I note here that the Tribunal has previously considered a number of applications from or for tenants, where the Tribunal has made finding that materially similar tenancy agreements used by the Burchells would represent tenancies under the RTA.
- I note particularly an application that had been filed by the Chief Executive of the Ministry of Business, Innovation and Employment against Llewellyn Burchell (AKA John Burchell)1, where the Tribunal raised concerns about the content of that tenancy agreement, which again is materially similar to that used for [tenant] 2 . Concerningly, that decision was issued in January 2023, six months prior to this same agreement being used with [tenant]
- The first agreement records that Mr Al Burcher is the agent, it was signed by J Burcher and refers to payment of rent being made to Guest House. It refers to the agreement being between owner and tenant and the agent. The first part is copied here for ease of reference and to highlight the difficulty in understanding who were the parties to that agreement. 2 The tenant in this case has name suppression.
- I agree with Adjudicator Woodhouse’s observations of this type of agreement. The agreement is in my view deliberately beguiling and confusing to the persons renting the premises and is written in such a way to try and usurp the provisions of the RTA and to obfuscate any attempt for the Tribunal to have jurisdiction.
- It is significant that the Tribunal had made adverse findings about the use of these type of agreements in January 2023 and yet it appears both from TT4838229 and TT 4769800, 4804657 and this case that Mr Burchell continued to sign people up to these agreements.
- Mr Smith tells me that at all times until he entered into the second agreement with Bed Shed Limited that he only dealt with Mr Burchell , and it was Mr Burchell that gave him the first agreement that Mr Burchell had filled out.
- Mr Smith also provided evidence that Mr Burchell filled out and signed a WINZ redirection form dated 31 August 2023 that form provided that the redirection of weekly rent of $420, the payments were to be made to an account called the Guest Home, but Mr Burchell signed the agreement with MSD that said that he would receive the weekly payments of $420 from the tenant. A copy of the signed statement is shown below.
- Landlord is defined in the RTA as landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective landlord; and (b) a former landlord; and (c)a lawful successor in title of a landlord to the premises; and (d) the personal representative of a deceased landlord; and (e) an agent of a landlord
- I am satisfied that Mr Burchell was the landlord in the first tenancy agreements because he both granted the Mr Smith the first tenancy agreement and he held himself out as the ‘agent’, It was Mr Burchell who met with Mr Smith and showed him the premises and it was Mr Burchell who completed the tenancy agreement, and Mr Burchell who is listed as an agent on the agreement. Mr Burchell signed an agreement requesting MSD pay the tenant’s rent to him, Mr Burchell received the rent payments. The second tenancy agreement
- In November 2023 the owners of the property, Bed Shed Limited cancelled an agreement that they had with Mr Burchell to manage the property. As a result of that cancellation Bed Shed Limited entered into a new tenancy agreement with Mr Smith for his premises dated 8 November 2023 (the second tenancy agreement). Mr Sim was named as the contact person on that tenancy agreement and the landlord is named as Bed Shed Limited.
- It records that a bond of $1680.
- I am satisfied that the landlord in that agreement was Bed Shed Limited.
- Before the hearing I conducted a search of the Company’s Office Register. That shows me that Bed Shed Limited has been removed from the register because it has been placed in liquidation as at 29 May 2025. As such any award that I make against Bed Shed would be unenforceable by Mr Smith as the company is not registered.
- Mr Sim is on the register as being the sole director. He tells me that he was made bankrupt on the 7 October 2025, and he can no longer hold that office.
- I therefore consider that it is pointless to make an order against Bed Shed Limited as it cannot be enforced. If Bed Shed Limited is reinstated to the register, then Mr Smith can apply to have this matter re-opened for an order to be made.
- I therefore only consider claims against Mr Burchell under the first tenancy agreement. The bond.
- In the first tenancy agreement it records that Mr Smith is to pay a bond of $1680 (being four weeks rent) and that Mr Smith is also to pay key money of $60.00
- Mr Smith provided evidence that his bond and first week’s rent were paid by Work and Income New Zealand on the 6 September 2023. Mr Smith obtained a loan for the bond and was paying that back to MSD.
- Mr Sim does not dispute that Mr Smith paid a bond of $1680 at the beginning of his tenancy to Mr Burchell. He says that Mr Burchell did not lodge those bonds with the Bond Centre and when Bed Shed cancelled the management agreement Mr Burchell did not transfer the bonds to Bed Shed Limited or Mr Sim.
- A boarding house landlord is entitled to retain bonds of less than one week’s rent in accordance with s66D RTA but if the bond is more than one week’s rent then the bond must be lodged with the Bond Centre withing 23 working days of receipt s 19(1) RTA.
- I am satisfied that Mr Smith paid his bond on the 6 September 2023 to Mr Burchell as it was shown in a statement Mr Smith received. The Bond Centre has no record of any bond being lodged for this tenancy. I am satisfied that Mr Burchell has committed an unlawful act by failing to lodge Mr Smith’s bond within 23 working days of receipt.
- Breaching the obligation to pay the bond to the Bond Centre 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.
- 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 am satisfied that Mr Burchell committed the unlawful act intentionally.
- Mr Burchell has had many orders made against him in the Tribunal for failing to lodge the bond. In a decision TT 4769800, 4804657 dated 5 April 2024 Adjudicator Sterling said, when making an award of exemplary damages of $1200 against Mr Burchell that: In summary, despite the previous MBIE case and the exemplary damages awarded against him, Mr Burchell proceeded to arrange this tenancy using an agreement containing very similar terms and has again failed to lodge the Bond with the Bond Centre. This indicates a complete disregard for the law and deliberate intent to evade the requirements of the bond regime again.
- I award Mr Smith exemplary damages of $1400.00 to be paid by Mr Burchell for this breach; this takes into account the following factors: a. The effect on Mr Smith. Mr Smith has been without his bond for over a year. Mr Smith had to borrow money to fund the bond in the first instance. He has had to pay that money back to MSD. Mr Smith is a beneficiary, he does not have a lot of money, the retention of his bond of $1680 is significant for him. b. Mr Burchell has had a number of other exemplary damages awards made against his for failing to pay the bond. Therefore, Mr Burchell is fully aware of his obligation to pay bonds to the Bond Centre. I consider his failure to do so highly intentional. This is particularly so when he was censured by the Tribunal for using the tenancy forms and not paying bonds almost 6 months before this tenancy began. I can only consider Mr Burchell’s behaviour as being a flagrant disregard for the law and tenant’s rights. c. The public interest, tenants, particularly those in vulnerable situations should expect that when they are called to pay bonds that those bonds are lodged with the Bond Centre and available to them at the end of the tenancy provided, they have met their obligations. I consider this particularly so when the tenants have to borrow those bonds from the state in the first place. There is considerable public interest in punishing landlords who do not lodge bonds and deterring others from doing so.
Did Mr Burchell take key money from Mr Smith?
- Key Money is defined in the RTA as: means any sum of money demanded by way of fine, premium, foregift, reimbursement of expenses, administration charges, or otherwise as consideration for the grant, continuance, extension, variation, or renewal of a tenancy agreement, or for consent to the surrender or disposition of the tenant’s interest under a tenancy agreement or to a subletting by the tenant; but does not include any sum payable or paid by way of rent or bond
- Section 17 of the RTA prohibits landlord’s from requiring key money. If a landlord does so, then it is an unlawful act. (s17(3)). Note that the provision does not require the key money to be paid, it is a breach to ask for it in the first instance. I say that because Mr Smith did not produce any evidence that showed he paid the ‘key money’.
- The tenancy agreement with Mr Burchell states in the move in costs, that Mr Smith is to pay $60 key deposit. This is key money. Mr Smith was already paying the maximum bond (4 weeks) and the maximum of two weeks in advance, so any additional money could not be for bond or rent, they had to be for key money, the granting of the tenancy.
- I find that Mr Burchell breached s17 by requiring Mr Smith to pay $60 in key money.
- Despite my finding that Mr Burchell breached s17 RTA, I am unable to award exemplary damages under s17(3) and s109 RTA as this breach occurred more than 12 months before Mr Smith made his claim. Section 109(2) of the RTA provides that exemplary damages can only be awarded within 12 months of the breach, for all breaches except the failure to lodge the bond. The filing fee.
- As Mr Smith has been successful in his claims, I award him the filing fee. Other matters.
- Mr Smith and Mr Sim told me at the hearing that they are aware of many other tenants who have had their bonds retained by Mr Burchell. If that is correct, then that is very concerning. As stated above the Tribunal has certainly made other awards against Mr Burchell for withholding bonds. Mr Smith told me he has tried to bring this matter to the attention of MSD, as he believes that Ms Burchell is registered with MSD as a registered supplier, and he is concerned that this practice of Mr Burchell’s appears to be ongoing. Mr Sim and Mr Smith both tell me that they have also tried to ask the Police to investigate these concerns but have been told that this is a tenancy matter. I record for these agencies that the Tribunal has no ability to order an investigation into a landlord, if a party alleges criminal conduct, that is the sole jurisdiction of the Police.