What was the outcome of Tenancy Tribunal case 4496811?

The tribunal order states: The tenancy since ended was a residential tenancy under the

How much money was awarded in case 4496811?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4496811?

The primary dispute was Healthy homes. Related themes: Exemplary damages, Compensation.

Where can I read the official tribunal order for case 4496811?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11060132-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4496811?

The tribunal order states: The tenancy since ended was a residential tenancy under the

How much money was awarded in case 4496811?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4496811?

The primary dispute was Healthy homes. Related themes: Exemplary damages, Compensation.

Where can I read the official tribunal order for case 4496811?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11060132-Tribunal_Order.pdf.

Unit/Flat Back Unit, 6 Leitch St, Sommerfield, Christchurch Tenancy Tribunal Case 4496811 — Healthy homes

Order

The tenancy since ended was a residential tenancy under the Residential Tenancies Act 1986.
Regan Yates must pay Peter John Finch $500.00 immediately, being compensation for the tenant’s loss of enjoyment of the tenancy.
The application for exemplary damages is dismissed.
All other claims are dismissed.

Reasons

Both parties attended the hearing I held on 31 October 2024. I adjourned the hearing part heard with directions to allow Mr Finch to provide further evidence. I later extended that time frame.
I heard evidence from the parties, from one of the landlord’s tenants, and from witnesses summonsed by Mr Finch from the Christchurch City Council (CCC). Background
This application has had a torturous history. The Tribunal has issued several orders. On 26 June 2024, the Tribunal issued a jurisdictional finding that the tenancy between the parties fell under the Residential Tenancies Act 1986 (RTA).
Then, on 11 September 2024, the Tribunal issued an order awarding the tenant exemplary damages of $3,000.00, compensation of $2,000.00, a rent payment refund and the filing fee. Other orders were made relating to the tenant’s goods.
The landlord applied for a rehearing of the orders made. On 19 October 2024, the Tribunal heard the rehearing application and dismissed it.
The landlord appealed the Tribunal’s decision. His Honour Judge Gilbert heard the appeal. In his judgment dated 18 September 2024 His Honour recorded the background as follows: [14] This case concerns a property at 6 Leitch Street in Somerfield, Christchurch. The main dwelling is a two-bedroom house and situated on the rear of the property is a largely self-contained unit adjoining the garage. [15] On 11 November 2022, two tenants by the names of Alex Jackman and McKenzie Kuii entered a standard form tenancy agreement with Mr Yates. The tenancy was fixed for a one-year term. It appears they moved into the main house with McKenzie’s brother about 11 November 2022 give or take. A bond was paid in the usual way. [16] About 10 days later, Mr Yates advertised the unit adjoining the garage on Trade Me under the “flatmates wanted” section for $230 per week. The unit is largely self- contained albeit the cooking facilities only appear to consist of a desktop oven and microwave. Further, the washing machine for the house is in the garage. [17] A short time later, Mr Yates, and possibly Ms Kuii and/or Mr Jackman depending on who you believe, met with Mr Finch on site and it was agreed he would move in. It is the arrangements that existed as between Mr Finch, Mr Yates, and the primary tenants Mr Jackman and Ms Kuii, that is central to this dispute. [18] Mr Yates says that the property itself was rented to Mr Jackman and Ms Kuii. In order to help them pay the rent, he was content for them to effectively sublet the sleepout to another flatmate. Whilst he placed the ad on Trade Me because the tenants could not afford the fee, and he received rent from Mr Finch rather than that being paid to the primary tenants, he explained that he was doing this simply to help the primary tenants who could not afford the Trade Me add and did not want to deal with Mr Finch’s cash which form of payment he preferred. [19] Mr Yates says it was the clear understanding from the first meeting that Mr Finch was simply to be a flatmate and that there was no separate residential tenancy as between Mr Yates and Mr Finch. Mr Finch was given a flatmate sharing agreement to sign by one of the other tenants a few days later but he refused to do so. Instead, he relatively quickly asserted that his was an individual tenancy and that he was not a flatmate in any sense of the word. [20] For his part, Mr Finch maintains that he was never a flatmate of Mr Jackman and Ms Kuii. Rather, he entered into a separate residential tenancy with Mr Yates as indicated by the fact that Mr Yates advertised the property on Trade Me, Mr Yates took the rent off him, and he never signed a flatmate sharing agreement. He maintains this was the clear understanding from the first meeting. [21] To cut a long story short, the relationship between Mr Finch on the one hand, and the primary tenants on the other soured quickly. Mr Yates became involved at some point and the arrangement became untenable. After approximately 17 weeks, Mr Finch stopped living there. He filed his claim in the Tenancy Tribunal asserting that Mr Yates as his landlord had conducted himself reprehensibly. He sought reimbursement of some rent, as well as compensation and exemplary damages. Ultimately, he was largely successful.
I have quoted from His Honour’s judgment because the background recorded in the judgment succinctly summarises the background described at some length before me, and it also succinctly summarises the issues.
The landlord wanted the Tribunal to hear evidence from his witnesses but for various reasons that did not happen. Judge Gilbert addressed that. His Honour also wanted to give Mr Finch the opportunity to play the full audio of a recording he made at the start of the tenancy without the landlord’s knowledge. Despite giving Mr Finch the chance to provide the full audio on the day of the appeal (which the landlord says will support his position that the arrangement between him and Mr Finch was not as a landlord and tenant) Mr Finch did not do so.
His Honour, in directing that the matter be reheard before the Tribunal said this: [46] Both parties can be under no illusion that if there is to be a rehearing, they must take that opportunity to present their best case including all of the relevant evidence they wish to call. (a) Mr Yates should arrange for one or the other tenants to be present or available on the phone, or at the least for a written statement to be submitted. However, he knows that a written statement will carry less weight. (b) Mr Finch, on the other hand, should provide the full audio of that first meeting between he and Mr Yates (and the other tenants if they were present). A failure by him to do so will very likely result in an inference being drawn that he does not want that audio to be played in its entirely because it does not support his claim as to the relationship between he and Mr Yates. The hearing
The evidence I heard was largely a re-run of the evidence given at the appeal, hence my recording of the background noted by Judge Gilbert.
Despite the very clear direction by His Honour Mr Finch still did not produce the audio at the hearing before me. I pressed him on this point. I found him to be very evasive. Mr Yates was candid. He said the audio would establish that the initial discussion confirmed that Mr Finch would be a flatmate of the tenants in the main house, the confirmation being clear due to the Canadian accent of the tenant present and speaking.
After the hearing I provided Mr Finch with a further opportunity to provide additional evidence and submissions. The Tribunal extended the time for him to do that. He emailed the registry to advise that while he had located the audio it was too large a file to send, so the Tribunal never received it.
The evidence from the CCC witnesses established that the sleep-out could be used for residential purposes as being a use associated with the house, though it was not consented for use as stand-alone residential premises. The distinction is as between what is known as a ‘SH’ (Sleeping Single Home) to a ‘SR’ (Sleeping Residential).
Mr Jackman, one of 2 tenants in the house, said he handed Mr Finch a flatmate/flat sharing agreement, but Mr Finch said he already had an agreement with Mr Yates. He said from the beginning it was clear that Mr Finch was going to have little engagement with him and the other tenant. He said there then arose issues with the internet connection because the modem did not range to the sleepout. Other issues caused conflict such as parking, the lawns, and Mr Finch bringing cats to the property when he knew that Mr Jackman had a dog. More issues arose and there was some police involvement. He said Mr Finch created conflict to a point where he tried to get rid of him.
Mr Jackman confirmed that Mr Yates located Mr Finch because he and the other tenant wanted someone to share costs. Relevant legal considerations
The RTA does not apply to all tenancies, some are excluded. The exclusions are set out in section 5 RTA. The Tribunal only adjudicates disputes as between landlords and tenants, not between tenants and tenants, ie tenants living together as flatmates.
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Exemplary damages are different. They are designed to punish and to deter. They are awarded at the Tribunal’s discretion when one party has proved that the other party has, with intent, 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 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.
When considering whether parties are flatmates or tenants, an often-quoted decision is the decision of the District Court in Musson v Dobrisek CIV-2006-032-
The Court said in that case: By “flatmates” I understand a co-operative arrangement whereby, in a functional sense, all occupants are on [the] same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.
That is a broad description. The themes that run through Tribunal decisions on this issue are: • the extent of any sharing of living facilities (such as cooking, bathroom, sitting room and laundry) • the extent of any free and unimpeded access by the tenant to premises occupied mainly by the landlord • the nature of the tenant’s area and whether it is fully or partly self- contained and whether it is exclusive. Discussion
Mr Finch seeks a full refund of the rent he paid because, he says, the premises were unlawful premises. He seeks exemplary damages for breaches of the Healthy Homes Standards (HHS); alleged unlawful entries; retaliatory notice to end the tenancy; and the landlord’s failure to provide receipts for cash payments of rent. He seeks compensation for the landlord’s failure to provide a tenancy agreement and for breaches of his quiet enjoyment.
It is open for me to draw an inference that the arrangement here was one of flatmates based on Mr Finch’s failure to produce the audio that both Judge Gilbert and I gave him plenty of opportunity to do. I can infer that the audio probably did record that Mr Yates made it clear that the arrangement between Mr Finch and the tenants of the house was to be one of flatmates, an arrangement that he simply brokered.
Very quickly after the agreement for Mr Finch to rent the sleep-out, he began to assert his rights as a tenant.
The agreement that Mr Finch would be a flatmate with the tenants in the main house does not of itself exclude the RTA from applying. The Tribunal looks to the substance of the arrangement. Landlords cannot contract out of the RTA. So, Mr Yates could not say, ‘even though there are separate premises the arrangement, of which I am not a part, only a broker, will not fall under the RTA’.
Mr Yates was adamant that he was assisting the tenants in the main house to find a flatmate and the arrangement with Mr Finch was always predicated on that. Mr Jackman confirmed that was the case.
Here, the arrangement as flatmates just does not seem credible because: • Mr Finch paid rent to the landlord. The landlord then made some payments to the tenants in the house, who then made the full rent payments to him. If Mr Finch, Mr Jackman and Ms Kuii were flatmates, the payment arrangement would likely have been different. • The sleepout was separate from the house and largely self-contained. • The ‘flatmates’ did not share expenses or facilities other than the laundry facilities that were located in a garage. • Flatmate arrangements usually arise organically; the parties find themselves and agree to live together co-operatively with agreements around the payment of utilities, and the general running of the house. The fact that Mr Finch resided in the sleepout does not rule out a flatmate arrangement, but in this case it does not seem likely. • There can be no flatmate arrangement between the parties (Mr Yates and Mr Finch) because Mr Yates did not reside at the premises. He was just the broker for his tenants.
So, what orders should the Tribunal make? The first point is this. The fact that the Tribunal can make orders does not always mean that it should.
Mr Finch would have the Tribunal believe that he was a vulnerable victim who suffered terribly at the hands of both Mr Yates and of Mr Jackman, the police being involved in the conflict.
I drew a quite different conclusion. I observed Mr Finch to be evasive on the issue of the production of the audio from the start of the tenancy despite having been put on notice by Judge Gilbert about the consequences of not producing it. I found him over-dramatic. His behaviour was challenging. He constantly interrupted and would not accept guidance. He appeared to enjoy the litigation environment, insisting that his case required several days’ hearing time. I regret to say that he came across as a ‘game-player’.
Mr Finch is well versed in residential tenancy law. I find that he knew exactly the arrangement that was being proposed. He agreed to it. He moved in and then quickly asserted his rights as a tenant. He now seeks considerable exemplary damages and compensation as a result.
On the issue of the status of the premises as unlawful for residential purposes I am guided by the recent decision of the High Court in Exclusive Estates Limited v Hoffman [2023] NZHC 1878. I do not find that the sleep-out was unlawful for residential purposes taking account of the evidence given by the CCC witnesses whom Mr Finch had summonsed, one of whom he did not question at all.
There can be no award of exemplary damages in this case because the landlord Mr Yates did not act intentionally. I accept his evidence that he was brokering a flatmate arrangement to assist his tenants with their rent. He did not intend to create a separate residential tenancy for the sleep-out. He said he knew the sleep-out could not be rented as separate residential premises. But inadvertently, he probably did create a tenancy as between him and Mr Finch.
Because Mr Yates acted inadvertently (or even negligently) none of the unlawful acts alleged by Mr Finch can attract exemplary damages. The section 109 RTA criteria for awarding exemplary damages are not met. I dismiss that part of the application.
Mr Finch repeatedly stated that he did not seek any monetary award for himself and that he would gift any amount awarded to charity. He then added that ‘he was seeking everything’. I note that simply because I do not believe that Mr Finch has any charitable intention at all. Regardless, it is not something that has influenced the Tribunal in its assessment of this case.
As I have noted, compensation is not punitive, it is to compensate loss. Here, much of the aggravation was as between Mr Finch and Mr Jackman. They simply did not get on. There was little Mr Yates could do about that other than bring the arrangement to an end.
I accept that Mr Finch suffered some loss of enjoyment of his tenancy, but not the exaggerated loss that he asserted. Simply put, this was an arrangement that was never going to work, and the only solution was that it end. The intention of Mr Yates and his tenants was to find a flatmate. But the way in which the arrangement panned out meant that a separate tenancy probably came into being.
Mr Finch should have some compensation for the confusing situation that arose and the aggravations that followed. But the compensation I award is limited because I find he was complicit in the situation that arose. For his ‘loss of enjoyment’ in an overall sense, I award him $500.00. Result
Though intended to be a flatmate arrangement as between Mr Finch and Mr Yates’ tenants, inadvertently a residential tenancy probably arose as between Mr Finch and Mr Yates.
The application for exemplary damages for all the alleged breaches amounting to unlawful acts is dismissed. Mr Yates did not commit any unlawful acts intentionally, believing as he did that he was arranging for Mr Finch to be a flatmate of his tenants.
I award Mr Finch compensation on a global basis for his loss of enjoyment of his tenancy of $500.00.
I make no order refunding the filing fee as the application is only marginally successful. Name suppression
Mr Finch sought name suppression. I make no order as the application is successful in small part only – see section 95A RTA.

Tenancy Tribunal case 4496811 — Healthy homes at Unit/Flat Back Unit, 6 Leitch St, Sommerfield, Christchurch

At a glance

Tenancy Tribunal case 4496811 — Healthy homes at Unit/Flat Back Unit, 6 Leitch St, Sommerfield, Christchurch

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions