Published tribunal order
Tenancy Tribunal case 5391861 — Exemplary damages at 86 Abel Smith Street, Te Aro, Wellington 6011
Decided 10 Aug 2026 · Published 10 Aug 2026 · Application 5391861
- Exemplary damages
Order
- No suppression orders apply around publication of this decision.
- [The tenant/s] tenant/s] must pay First Mortgage Managers Limited And Fm Custodians Ltd costs to the sum of $11,864.75 which is to be paid immediately.
Reasons
- I must consider an application for costs filed by Mr Conder, the lawyer acting for First Mortgage Managers Limited And FM Custodians Ltd (FMT).
- On 15 January 2026 I made an order in relation to an application filed by Mr Morrison. Mr Morrison wanted the Tribunal to decide if the Residential Tenancies Act 1986 (RTA) applied to him because he rented a flat in the commercial building FMT repossessed. My order struck out Mr Morrison’s application. On 27 January 2026 I made a second order dismissing Mr Morrison’s application for a rehearing.
- Mr Conder filed a submission for costs dated 19 January 2026. The submission sets out the relevant history and law that applies. Mr Conder said the fact Mr Morrison’s application was struck out demonstrates the application was vexatious in nature. Mr Conder submits that this is particularly the case because the High Court had already made an order that Mr Morrison would have to move out of his flat. He said FMT were overwhelmingly successful. Mr Conder said that they had warned the tenant twice, before the Tribunal hearing, that the application had no legal foundation. Mr Conder has asked for full or indemnity costs, or 60% of the total legals costs.
- Section 102 of the RTA sets out the circumstances where the Tribunal can award costs. Sections 102(2) and (3) provide that that where any of the parties is represented by counsel, the Tribunal may order a party to pay the reasonable costs of another party.
- In French v Ryan (DC Auckland, CIV-2012-004-000711, 29 November 2012) the District Court held the Tribunal can consider the costs that would have been awarded under the appropriate category in the District Court Rules 2009. In Holden v Architectural Finishes Ltd [1997] 3 NZLR 143, the High Court held that ‘reasonable costs’ means a reasonable contribution and not a mere gesture. It considered that a contribution in the range of 40% to 70% would likely satisfy this requirement.
- In David Blair Ltd v Hawkins Arms & Engineering Ltd (1988) PRNZ 162 the High Court outlined several relevant factors in assessing costs: •the length of the hearing, •the amount of money involved, •the importance of the issues •the legal and factual complexities, •the amount of time required for effective preparation, • the likely or actual costs incurred.
- Other factors that may be relevant include: the conduct of the parties, the degree of success, whether unnecessary steps or technical points were taken, and whether arguments lacked substance. It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party.
- The hearing in the Tribunal took a morning. The rehearing was dealt with on the papers and Mr Conder filed submissions. The amount of money involved was $7,750 plus a possible award of exemplary damages. There was some legal and factual complexity because of the history of the matter. I was provided with comprehensive written submissions from Mr Conder for both the hearing and the rehearing and I accept this would have taken some time.
- Despite the earlier orders from the higher courts there was still some information missing from the documents filed, which meant I held a hearing rather than striking out the application on the papers. What became apparent at the hearing was Mr Morrison knew that the higher courts had already taken the fact he was living in the flat into account when making the decision to grant possession to FMT. In other words, the legal question of his occupancy had already been decided.
- I find that Mr Morrison chose to pursue an application that was destined to fail. He was wholly unsuccessful. He knew FMT would be legally represented. He had been advised, by Mr Conder, of the likely extent of the costs if the matter went to a hearing. He subsequently applied for a rehearing of my decision which would have added more cost. Taking these factors into account, I find FMT’s costs should be ordered in full.