Published tribunal order
Tenancy Tribunal case 5445151 — Exemplary damages at Unit/Flat Unit 917B, 20 Park Avenue, Ellerslie, Auckland
Decided 2 Jun 2026 · Published 2 Jun 2026 · Application 5445151
- Exemplary damages
- Unit Titles
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 and Landlord name and identifying details.
- Kohane Kagami is to pay Reforma P.M Limited Vanessa Higgins the sum of $619.00 from the bond for the break lease fee, as calculated and set out below: Description Landlord Break lease fee $619.00 Tenant Total award Split Bond $619.00 $1,141.00
- The bond centre is to split the bond accordingly: Reforma P.M. Limited Vanessa Higgins: $0.00 [The tenant/s]: $1,760.00
- The tenants claim for exemplary damage, compensation and full refund of her bond is dismissed.
Reasons
- Both parties attended the hearing. This is a tenant application. The tenant seeks a refund on her whole bond following the end of the tenancy. This was a fixed term tenancy that was due to end on 17 July 2026. Background:
- The tenancy commenced on 17 October 2025. The tenant sought to obtain a release from the fixed term tenancy on 30 December 2025.
- The tenant claimed that she felt unsafe in the property after she had experienced two incidences of other people entering the property without her knowledge and consent.
- One incident involved the Body Corporate sending an air conditioning contractor to the property to do annual maintenance on the air conditioning unit. The contractor entered and carried out the work when the tenant was not home. The tenant complained to the landlord about the breach of her privacy. The landlord did not know of the contractor’s appearance at the property. The contractor has been sent by the Body Corp without knowledge to the tenant or the landlord.
- In the second incident a property manager for the landlord, came to the property to do a viewing with a prospect tenant. The landlord who gave evidence at the hearing was of the opinion that the particular property manager would have provided appropriate advice to the tenant of the viewing. However, the property manager was not available to be spoken to at the time of the hearing.
- As a result of these two incidents the tenant sought to be released from her fixed term tenancy. Fixed term tenancies :
- Where a tenancy is for a fixed term, both the landlord and tenant are generally bound by the agreement until the end date. However, a landlord may consent to an early release of the tenant, often on certain conditions. The landlord sought the tenant to pay a break lease fee to cover the actual and reasonable costs incurred in re-letting the property, such as advertising and the agent’s fees.
- The tenant may also be required to pay rent until a new tenant is found and commences their tenancy, or until the original fixed-term end date, whichever occurs first. These obligations are consistent with the principles that the tenant should compensate the landlord for any loss directly resulting from the early termination, provided the costs are reasonable and the landlord has taken steps to mitigate their loss.
- The Residential Tenancies Act 1986 (RTA) does not contain a specific section dealing with early termination of a fixed-term tenancy by agreement. However, s50 allows a tenancy to be ended early if both parties agree, and s66 enables the Tribunal to award compensation for any loss resulting from a breach of the agreement. This means it is reasonable for a landlord to require a tenant to pay a break lease fee or rent until a new tenant is found, provided these costs reflect the landlord’s actual loss.
- The landlord agreed to release the tenant from the fixed term tenancy on condition of payment of reasonable break lease fees.
- The landlord sent the tenant an estimate of the usual break lease fees which was $918.99. The landlord carried out the work to obtain a new tenant.
- A new tenant was found after a number of viewings. The landlord sent an invoice for the work and the tenant disagreed on the amount.
- After discussions in the hearing the final amount claimed by the landlord was $619.00. I consider having viewed the number of viewings and potential applications, that this is a reasonable cost. The landlord provided a full itemised breakdown of the work and costs incurred by the owner of the property.
- The tenant should pay these reasonable costs. Refund of Bond:
- Under section 22B of the RTA, the Tribunal can determine to whom the bond, or any part of it, is to be paid.
- The tenant’s application is for the refund of the bond. The landlord has claimed break lease fees, which I have found to be reasonable and payable by the tenant.
- I order that the bond held by the Bond Centre should be split between the landlord and tenant. The landlord is to be paid $619.00 for break lease fees and the balance of the bond to be refunded to the tenant.
- This approach is consistent with your powers under section 22B and is standard practice in the Tenancy Tribunal. Compensation/Exemplary damages:
- The tenant seeks compensation and exemplary damages for the air conditioning maintenance person and property manager attending the premises without proper notice.
- Exemplary damages can only be awarded for specific “unlawful acts” listed in the Act, and only if the act was committed intentionally (see section 109(3) and Birch v Otautahi Community Housing Trust).
- The landlord was unaware of the air conditioning maintenance persons appearance at the property until after the tenants advised them. The landlord took action on behalf of the tenant by remonstrating with the Body Corp.
- If the property manager’s unannounced visit was a minor breach or a genuine mistake about notice, it is unlikely to meet the threshold for exemplary damages. Negligence or error does not amount to intention.
- While the property managers visit may have been a technical breach of the notice requirements, it was minor and there is no evidence of actual loss. There is also no evidence that the property manager acted intentionally so as to justify exemplary damages. Compensation:
- Compensation is only awarded if the tenant has suffered actual loss or harm as a result of the breach. If the visit was minor, brief, and did not cause any real inconvenience or loss to the tenant, there is no basis for a compensatory award.
- The claim is therefore dismissed. Filing Fee/Bond/ Suppression:
- If the applicant (here, the tenant) has been wholly or partially, successful in their claim, the Tribunal must order that the respondent (the landlord) pay the tenant the filing fee, see s 102(4) of the RTA.
- As the tenant has not been wholly or partially successful in their application, I am not required to order reimbursement of the filing fee. I decline to make an order for the landlord to pay the filing fee in this case. Suppression:
- Generally, if a party applies for suppression and has been successful, suppression is granted.
- In this case the tenant has not been successful in seeking a full refund of her bond and exemplary damages/compensation. If the tenant has not been wholly or substantially successful, you may only grant suppression under section 95A(4), which allows the Tribunal, on application or on its own initiative, to order suppression “having regard to the interests of the parties and to the public interest.”
- There are no special circumstances in this case that would warrant suppression. I am declining the tenant’s application for suppression of her name and details. Bond: The bond centre is to pay the bond according as set out above in this order .