What was the outcome of Tenancy Tribunal case 4451660?

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

How much money was awarded in case 4451660?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4451660?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 4451660?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9619582-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4451660?

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

How much money was awarded in case 4451660?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4451660?

The primary dispute was Rent arrears. Related themes: Cleanliness, Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 4451660?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9619582-Tribunal_Order.pdf.

106 Gray Road, Papakaio, RD 15K, Waitaki Bridge 9494 Tenancy Tribunal Case 4451660 — Rent arrears

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Reasons

Background

These applications have had a tortuous history.

On 22 December 2022, the Tribunal (Adjudicator Kee) made directions following a telephone case conference with the parties.

The adjudicator recorded the scope of each application and directed that a hearing be set to decide the issue of the status of the tenancy – was it a residential tenancy or a boarding house tenancy?

I held a hearing at Timaru on 6 June 2023. After hearing evidence from the parties, I determined, with reference to case law, that the tenancy was a boarding house tenancy.

I directed that the parties reframe their applications to reflect my finding that the tenancy was a boarding house tenancy.

The applications were set for hearing at Timaru on 21 August 2023. The Tribunal scheduled a day-long hearing. On the morning of the hearing, the tenant contacted the Call Centre to advise that she was unwell and could not attend the hearing.

I held a directions conference with the landlord party only present. He withdrew most of his claims against the tenant, save for a claim for rent arrears of $750.00.

I directed that the applications be determine on the basis of written submissions (if the parties consented). The parties did consent, and I set out a timetable for submissions to be filed.

I received a revised statement of claim, documentary evidence, and submissions from the tenant. The landlord had provided evidence and submissions earlier in the process. He provided nothing further. Issues

The sole issue on the landlord’s application is whether the tenant owes rent arrears of $750.00.

The tenant has made the following claims: •The landlord failed to provide a written tenancy agreement – exemplary damages of $500.00. •The landlord did not lodge the bond – exemplary damages of $500.00. •The landlord discriminated against the tenant by telling others that she stole from the property – exemplary damages of $6,500.00. •The landlord seized or otherwise disposed of the tenant’s goods – exemplary damages of $3000.00. •The landlord failed to meet his obligations in respect of cleanliness and maintenance – exemplary damages of $5,000.00. •The landlord continued to provide the premises despite knowing they were contaminated (with sewage) – exemplary damages of $4,000.00. •The landlord interfered with the supply of services to the property – exemplary damages of $1,800.00. •The landlord unlawfully entered the premises – exemplary damages of $1,500.00. •The landlord harassed the tenant – exemplary damages of $3,000.00.

In total, the tenant seeks exemplary damages of $25,800.00 from the landlord. Legal considerations – exemplary damages

Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.

Even if the Tribunal does not find a claim for exemplary damages made out, it can consider awarding compensation to a tenant for landlord breaches when those breaches do not amount to unlawful acts. The evidence

Both parties have provided documentary evidence including photos and text messages and a statement (from the tenant), and letters of reference and statements in reply to the tenant’s original claims (from the landlord).

Both parties gave evidence before me at the hearing on 6 June 2023, but the evidence mostly related to the jurisdictional issue as to the status of the tenancy. The landlord’s application

I do not find proved a claim for rent arrears by the landlord. The tenant says she did not pay rent for the last 3 weeks of the tenancy because her power had been disconnected. That issue aside, the onus of proof rests with the landlord to establish a claim for rent. The Tribunal did not receive an adequate rent summary from the landlord which proved the amount of rent owing.

That was the sole remaining issue on the landlord’s application. He withdrew claims for damage to the airstream caravan ($25,000.00); compensation for emotional stress and trauma ($50,000.00); and on-going loss of rent ($6,500.00) at the hearing on 21 August 2023. I recorded the withdrawal of those claim in the order I made that day.

The landlord’s application is dismissed. The tenant’s application

The tenant has ‘thrown the book’ at the landlord by seeking exemplary damages amounting to more than $25,000.00 for alleged multiple breaches that she says amount to unlawful acts by him.

All of the claims made by the tenant are disputed by the landlord.

The landlord has provided evidence in the form of references and witness statements from others who resided at the boarding house who speak highly of him as a landlord. The underlying tenor of the persons who have written the references is that the tenant caused disruption but that the landlord acted well.

Probably, the truth lies somewhere in between. It is very difficult for the Tribunal to determine what are essentially credibility issue on the basis of written evidence only.

The landlord had witnesses attend the hearing that the tenant did not attend, but the Tribunal could not hear from them in the absence of the tenant.

The parties elected to have the applications determined on the papers. The evidence is limited, and the submissions are scant. Really, what the Tribunal is confronted with is a ‘he said/she said’ situation, although there is documentary evidence in the form of the references the landlord provided that support his defence to the tenant’s claims.

The text messages the tenant produced in evidence do her (and to a lesser extent, the landlord) little credit. The tenant’s language was certainly intemperate. An example is her response to the landlord concerning the alleged theft of a lawn mower: Where’s your fukng proof asswipe Even the cops said I didn’t do it You probably done it to frame me kunt I want to see the camera footage

The tenant would have the Tribunal believe that she was the innocent victim of a bullying landlord. Furthermore, she makes allegations of sexually inappropriate behaviour against him.

The evidence such as it is does not lead the Tribunal to the conclusion that the landlord was as dreadful as the tenant alleges. And there is no evidence to support the allegation of inappropriate behaviour on his part.

The tenant has to prove that for each alleged unlawful act, firstly it occurred, and secondly, the landlord turned his mind to the act and then deliberately set about to commit it.

As can be seen from the decision of the Court in Birch, the threshold for awarding exemplary damages is quite high.

The Tenancy Tribunal is one of only a few tribunals that has jurisdiction to award exemplary damages. It does not do so lightly.

This is a case where the landlord probably committed some breaches of the Residential Tenancies Act 1986 (RTA), but none which, on the available evidence, would amount to an unlawful act for which the Tribunal would award exemplary damages.

What the evidence does establish is that these parties were not suited to be in a landlord/tenant relationship, especially in a boarding house tenancy which involves multiple people living in close proximity.

That the Tribunal can make orders does not mean that it always should. Context is important. There are some cases where, even if there have been likely breaches by one party of their RTA responsibilities, the Tribunal need not, and should not, intervene. This is such a case.

Though I did not hear directly from other tenants at the boarding house, their written statements suggest that the tenant’s actions were the cause of much friction.

This was a tenancy that the Tribunal observes was probably doomed from the beginning and which had to end. That was the only solution given the breakdown in relationships all round.

The tenant has not proved on the balance of probabilities that the landlord committed any defined unlawful acts (bearing in mind the required element of intention). And even if the landlord committed other breaches, in the overall context of this tenancy the Tribunal is not persuaded to act by awarding the tenant compensation.

All that can be said of this tenancy is that it probably should never have started, but it certainly had to end.

The tenant’s application is dismissed. Result

Both applications are dismissed. Name Suppression

I make no name suppression orders. Both applications are unsuccessful. The criteria for name suppression are not met – see section 95A RTA.

Reasons

Background