What was Tenancy Tribunal case 5487272 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5487272?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5487272?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5487272?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13725376-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5487272 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5487272?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5487272?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5487272?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13725376-Tenancy_Tribunal_Order.pdf.

28 Baywaters Lane, Closeburn, Queenstown 9371 Tenancy Tribunal Case 5487272 — Exemplary damages

Order

The tenant’s application is dismissed.

Reasons

Both parties attended the hearing which was conducted by video conference.
The tenant seeks a declaration that he has lawfully cancelled the tenancy agreement and compensation for misrepresentation. He says that the landlord gave him an assurance that there would be no issues with courier deliveries to the premises. It is agreed that there are no courier deliveries to the premises. The tenant also claims compensation and exemplary damages for unlawful entry by the landlord to the premises and exemplary damages for late lodgement of the bond.
The landlord denies making the alleged representation and opposes the tenant’s application. 5487272 2 Background
The tenancy agreement was concluded on 19 March 2026. It is for a one-year fixed term from 1 April 2026 at a rent of $5,913 per week.
The premises are a high-end residence above the Queenstown-Glenorchy road approximately 20 minutes drive from the centre of Queenstown.
The parties spent some time negotiating the terms of the agreement. The tenant had some specific requirements, and the tenancy agreement contains some terms specifically agreed by the parties including provisions for early termination of the tenancy.
The tenant moved into the premises on 1 April and on 10 April he sent messages to the landlord and said that he was not able to get parcels delivered to the premises. He also said to the property manager, Nikki Jones, that she had told him that “we 100% wouldn’t have any issues (concerning deliveries)”.
The landlord, after ascertaining that the courier companies were not delivering the premises, tried to resolve the problem without success.
The tenant claims that the landlord make a representation to him that the courier companies did deliver to the premises and that the representation was untrue. He says that this misrepresentation entitles him to cancel the tenancy agreement and entitles him to compensation.
The tenant vacated the premises on 28 May and the landlord is seeking another tenant. Relevant Law
Section 78(1)(g) of the Residential Tenancies Act 1986 (the Act) allows the Tribunal to set aside a tenancy agreement where it has been induced by misrepresentation.
The Contracts and Commercial Law Act 2017 (CCLA) provides for cancellation of a contract for misrepresentation in certain circumstances and for an award of damages (compensation).
Section 37(2) of the CCLA provides that a party may exercise the right to cancel the contract if and only if, (a) the parties have expressly or impliedly agreed that the truth of the representation or, as the case may require, the performance of the term is essential to the cancelling party; or (b) the effect of the misrepresentation or breach of the contract is, or, in the case of an anticipated breach, will be,— 5487272 3 (i) substantially to reduce the benefit of the contract to the cancelling party; or (ii) substantially to increase the burden of the cancelling party under the contract; or (iii) in relation to the cancelling party, to make the benefit or burden of the contract substantially different from that represented or contracted for.
A party is not entitled to cancel the contract if, with full knowledge of the misrepresentation, the party affirms the contract.
The CCLA does not alter the common law principles relating to misrepresentation generally and so they continue to apply. The following are some of those principles which may be relevant in this case, a. The statement must relate to a past or present fact. It cannot relate to the future. b. The statement must be one of fact not opinion. c. The statement must be made on behalf of a contracting party or by a party’s agent. d. Reliance on the misrepresentation must be reasonable.
Landlords must lodge bonds with the Bond Centre withing 23 working days of receipt. Failure to do so may result in an award of exemplary damages.
Landlords may enter premises only with the tenant’s consent or by right conferred by the Act.
An applicant is required to establish the claim to the civil law standard of proof, namely on the balance of probabilities. That means proving that the facts relied on to establish the claim are more likely than not to be true.

Was There a Representation?

Evidence, Discussion and Decision

I heard evidence from the tenant and from his girlfriend, Ms Campbell. I also heard from Mr Clark on behalf of the landlord and the property manager, Ms Jones
The tenant said that he was concerned to ensure that courier companies delivered to the premises. He gets many things delivered in that way, such as supplements, pet food and clothing. His groceries are delivered from the supermarket and that has not been a problem.
He said that he asked Ms Jones whether the courier companies delivered to the premises, and she said that 100% they did. 5487272 4
Ms Campbell said that she was present when Ms Jones confirmed to the tenant that there were deliveries to the premises. She said that Ms Jones said that the courier companies deliver to steeper streets around Queenstown than the one the premises are on.
Ms Jones said that the tenant did not ask her about deliveries, and she did not say anything about them.
The tenant referred to the correspondence and he pointed out that when he said in his correspondence that Ms Jones had confirmed that there were deliveries to the premises, the landlord did not refute it. He said that there was no denial until the landlord submitted Ms Jones’ statement. He argued that if Ms Jones had not made the representation, she and the landlord would have denied making it at the earliest opportunity. In other words, he suggests that their silence was a tacit admission.
When that was put to Ms Jones, she said that the landlord is a service provider, and the tenant was one of their VIP clients. It is not her or the landlord’s practice to get into a confrontation with their clients and certainly not with their VIP clients. She said her focus at the time was to try to find a solution to the problem which she did try to do.
The tenant’s evidence was corroborated by Ms Campbell. She was very sure in her evidence and added the comment about Ms Jones reference to deliveries being made to worse hills than Baywaters Lane. Obviously, Ms Campbell is not an independent witness, and I need to take that into consideration.
I was struck by the fact that the landlord’s denial of the representation came so late in the piece. My instinct as a lawyer would have been to deny it immediately if it was untrue to put it on record and avoid the point that the tenant has made about the delay. That said, I found Ms Jones to be a straightforward and credible witness, and I can understand why she and the landlord would look to assuage the tenant and try to overcome the problem, rather than trigger a (possibly avoidable) confrontation. My impression is that at that stage, all concerned believed that the problem could be overcome.
The landlord made the point that the tenant raised numerous issues that had to be resolved before he was ready to sign the tenancy agreement. These were canvassed in correspondence and yet there is no reference to deliveries in that correspondence or in the tenancy agreement. The landlord says that if deliveries were of such major importance to the tenant, he would have raised it with the landlord formally, as he did with other issues. The tenant said that there was no need to do so because Ms Jones had confirmed the position to him. In my view there is force in the landlord’s point.
I raised with the tenant the point that he could have confirmed the assurance that he says he received from Ms Jones in writing and that would have been a 5487272 5 prudent thing to do given its apparent importance to him. He confirmed that he is a businessman, but he saw no need to record his conversation with Ms Jones in writing. He said that he expected that Ms Jones told him that there were deliveries to the premises because she was so informed by the owners, who would know. He confirmed that he did know then what the owner’s state of knowledge on the subject was.
I also note that the first communication that the tenant sent to the landlord after he discovered that the premises were not receiving deliveries did not mention that anyone had given an assurance that there were deliveries to the premises. It stated that there had been a “technical omission of a material fact that wasn’t communicated”. That suggests a failure to say that there were no deliveries to the premises rather than a statement that there were deliveries. If the landlord had given an assurance as the tenant claims they did, one might expect that it would be the first thing that the tenant would mention given his obvious dismay at the situation.
In my view the point that the tenant makes about the landlord’s failure to immediately deny the alleged representation, can also be made against him in terms of asserting the representation. If anything, the landlord’s point has more force because the tenant initially said something that appears to be inconsistent with a positive representation.
I note as well that the tenant’s first post discovery message stated, “The owner couldn’t possibly not know about the issue”. That ties in with the tenant’s claim that there was an omission of a material fact. If Ms Jones had made the alleged representation, the owner’s knowledge of the situation would be irrelevant as indeed would Ms Jones’ knowledge of it.
There is direct conflict of evidence between the tenant and Ms Campbell on one hand and Ms Jones on the other. All the witnesses were very sure of themselves when they gave their evidence. There are points that can be made in favour and against both sides. In my view, the balance of evidence favours the landlord, and it follows that I do not accept that Ms Jones made the representation concerning deliveries to the premises as alleged or at all.
Even if I am wrong about that, in my view the highest that the tenant could reasonably put his case is that the evidence is evenly balanced. The burden of proof is on the tenant. He who asserts must prove. Where the evidence is evenly balanced, and there is no clear evidence that Ms Jones made the alleged representation, the tenant has not proved that it is more likely that not that she did so. In other words, he has failed to discharge the burden of proof. That being so, it follows that the claims based on misrepresentation must fail.
I will now go onto to consider, briefly, other questions concerning the misrepresentation claim. 5487272 6

Present or Future Fact?

The tenant would no doubt say that the alleged representation relates to a present fact in the sense that it was implicit from what Ms Jones said that she was confirming that the premises did receive deliveries. But that is not what the tenant has said. The tenant claims that she said that the tenant wouldn’t have any issues. That is more consistent with a statement about the future or about the hypothetical situation in the event that the tenant accepted the tenancy.
The evidence was that there was a time when couriers did deliver to the premises. It follows that the availability of deliveries can and does change from time to time. Courier companies can change their criteria for the suitability of places for deliveries.
On balance, I find that the alleged representation relates to the future, not a present fact. Therefore, it cannot be an actionable misrepresentation

Fact or Opinion?

The tenant said that he assumed that Ms Jones gave the alleged assurance because she had information from the owner, but Ms Jones said that she had no information regarding deliveries before the tenant raised the issue in correspondence. Ms Campbell’s evidence was that Ms Jones said that deliveries were made to worse hills in Queenstown than the tenancy address. That could be taken as an indication that Ms Jones was surmising from her knowledge of deliveries to other places in Queenstown that there should be no problem with deliveries to the premises. In that case she would be expressing an opinion.
There was nothing in the evidence that shows that Ms Jones would have been speaking from her own knowledge that there were deliveries to the premises. There is no evidence that was any discussion about how she would have such knowledge (apart from Ms Campbell’s evidence about deliveries to steeper streets).
I find, therefore, that the alleged statement is one of opinion and not of fact and therefore it cannot amount to an actionable misrepresentation.

Contracting Party or Agent?

The tenant’s evidence that he believed that Ms Jones’ knowledge of deliveries came from the owner establishes that, in the tenant’s mind, she was acting as a conduit between the owner and the tenant. In those circumstances Ms Jones could not be liable for the alleged statement. She would merely be passing on 5487272 7 information from the owner. The landlord would not be liable either because their liability can only be vicarious, and they cannot be liable unless Ms Jones made the alleged statement in her own right.
But we now know that the owner knew that there were no deliveries to the premises, and he did not impart any information to Ms Jones regarding deliveries. It follows that if I have found that Ms Jones had made a representation, I would have found that she made it in her own right. Reasonable Reliance
The tenant said that he had looked at the areas shown on the couriers’ websites as areas where they delivered and that indicated that they did deliver to the premises. If he remained in any doubt about that, the obvious thing to have done was to check with the couriers direct to confirm whether that was correct.
In my view that proposition holds even if one accepts that Ms Jones made the alleged statement. If the tenant required the best degree of certainty, that would come from the courier companies themselves, not Ms Jones. In those circumstances and given the stated importance of the service to him, I find that it was not reasonable for the tenant to rely on a statement made by Ms Jones. Having made some enquiry, he should have gone on and verified the position with the courier companies. In other words, he should have got the information from the horse’s mouth. Another Reason
I find that there is another reason why the claims based on misrepresentation cannot succeed. The correspondence shows that after the tenant had raised the problem, the landlord offered to act as a post restante for the tenant’s deliveries with the added service that one of their property managers would deliver them personally to the premises as and when they arrived. The tenant rejected that offer.
When this was put to the tenant in the hearing, he said that he did not want the landlord to be handling his deliveries. He did not explain why. It is difficult to understand why the tenant would be happy for strangers to handle his deliveries but not a highly reputable property company with whom he had a close association. In any case, it is not reasonable for the tenant to claim cancellation of the tenancy agreement and compensation when the landlord had offered a perfectly reasonable solution to the delivery problem.
This point also undermines the tenant’s claim to have the right to cancel the agreement. Even if the tenant had succeeded to the point that I needed to consider whether he was entitled to cancel the agreement, the fact that there 5487272 8 was a ready solution to the problem means that the effect of the alleged misrepresentation on him would not be substantial and so cancellation would not be available to him.
I would add that even without the landlord’s offer, I would not have found that the effect of the alleged representation that sufficient to justify cancellation of the agreement. There were other options which whilst they have involved some inconvenience, or expense, would have largely overcome the problem and any residual inconvenience would not be serious enough to justify cancelation. Result - Misrepresentation
For all these reasons the claims based on misrepresentation must be dismissed. Wrongful Entry
The landlord may enter the premises only with the consent of the tenant or in one of the circumstances set out in s48 of the Act. Most of those circumstances require the landlord first to give the tenant notice of their intention to enter the premises. They may also enter in an emergency.
In this case, the tenant informed the landlord on 28 May that he had vacated the premises, and that the tenancy would end on 1 June. The landlord’s evidence was that an agent went to the premises to ensure that they had been left secure. Bad weather was forecast for the coming weekend. He found that they had been left insecure with doors and windows open. The tenant denied that he had left the premises like that. The landlord’s photographs taken at the time suggest otherwise.
I prefer the landlord’s evidence on this issue. I do not think that a professional property manager would enter rented premises without either authority or good reason. I find that they had both. But even if I’m wrong about that, I would not make any award in the tenant’s favour. He has purported to cancel the agreement, without cause in my judgment, and he has vacated the premises with the expectation that the landlord will relet them. If the landlord had entered the premises in those circumstances any breach of the Act would be technical, and I would not make an award for a technical breach that had no effect on the other party. Bond
The landlord was a few days late in lodging the bond. They said that they were unable to use usual method of paying the bond to the Bond Centre due to the 5487272 9 unusually large amount of the bond. I can believe that. In any case this was a minor delay and there was never any risk to the tenant. It does not warrant an award. Result
The tenant has not succeeded with any of his claims and therefore his application is dismissed. It follows that the tenancy is continuing and it will end when the premises have been relet or it has been lawfully terminated.

Tenancy Tribunal case 5487272 — Exemplary damages at 28 Baywaters Lane, Closeburn, Queenstown 9371

At a glance

Claims & awards

Tenancy Tribunal case 5487272 — Exemplary damages at 28 Baywaters Lane, Closeburn, Queenstown 9371

At a glance

Claims & awards

Order

Reasons

Was There a Representation?

Present or Future Fact?

Fact or Opinion?

Contracting Party or Agent?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Order

Reasons

Was There a Representation?

Present or Future Fact?

Fact or Opinion?

Contracting Party or Agent?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions