What was the outcome of Tenancy Tribunal case 4522385?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4522385?

Compensation: Quiet Enjoyment: $700.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4522385?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4522385?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9420912-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4522385?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4522385?

Compensation: Quiet Enjoyment: $700.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4522385?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4522385?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9420912-Tribunal_Order.pdf.

Unit/Flat 2010, 10 Waterloo Quadrant, Auckland Central, Tenancy Tribunal Case 4522385 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4522385 — net $4,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund of bond	$2,800.00	Refund of bond
Exemplary damages: Unlawful entry	$700.00	Unlawful entry
Compensation: Quiet enjoyment	$700.00	Quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,220.44
Total payable by Landlord to Tenant	$4,220.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Heng Xu must pay Tracy Cui $4,220.44 immediately.
This hearing is adjourned for the purpose of further consideration of the return of the tenant’s belongings.
If Tracy Cui has not advised that there are issues with the return of her belongings by 12 September 2023, the hearing will be treated as complete and the final order issued by the Tribunal.

Reasons

Both parties attended the hearing. The landlord had a mandarin interpreter present, but he was not required.
The tenancy began on 26 November 2019. The tenant says that there were three fixed term tenancies. Two of the tenancy agreements have been submitted. The first tenancy agreement records a fixed tenancy from 26 November 2019 until 29 November 2020. The second tenancy agreement records a fixed tenancy from 30 May 2022 until 27 November 2022. It is presumed that there was a fixed tenancy in between November 2020 and May 2022. After the end of the third fixed term tenancy in November 2022 the tenancy became periodic in accordance with section 60A Residential Tenancies Act 1986.
The two tenancy agreements record that the tenant may sublet the apartment. This term would continue when the tenancy became periodic in accordance with section 60A(1) of the Act.
The landlord was aware from the beginning that the tenant was using the tenancy for Air BnB clients. As some stage the landlord became aware that this was in breach of the Body Corporate Rules. In September 2022 the landlord was fined for this by the Body Corporate.
In December 2022 the landlord purported to give notice to the tenant to end the tenancy. The reason given for ending the tenancy was due to the $350.00 fine for running an Air BnB. The tenant was given notice that the tenancy would end on 28 February 2023.
In January 2023 the tenant advised the landlord that she had a booking that was due to end on 23 March 2023. The tenant produced a registered translation of communication between her and the landlord. It appears that the landlord has agreed to extend the tenancy until 23 March 2023.
The communication between the landlord and tenant broke down. According to the evidence submitted the parties had agreed to end the tenancy on 23 March 2023. Unlawful entry
Tracy Cui claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord attended at the premises to meet with the guests without notice on at least one occasion and then on 5 March 2023 he attended to remove the tenant’s belongings. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The landlord’s evidence is that it became frustrated by the lack of communication with the tenant, but there was email communication throughout February 2023. The landlord communicated directly with the tenant’s guests and the guests decided to move out of the premises early. The date they decided to move out was on 5 March 2023. But this was not the date that the parties agreed to end the tenancy.
On 5 March 2023 the landlord attended at the premises. The tenant says that the landlord was acting aggressively and took her keys off her. The landlord went into the premises and started to remove the tenant’s belongings. The tenant produced two photographs of her belongings being dumped outside the front door of the premises. The tenant says she called the Police, but they were unable to assist and recommended that she apply to the Tenancy Tribunal.
The landlord did not give the tenant notice of entry and therefore has breached section 48(1) of the Act. The tenant no longer had access to the premises. The landlord unilaterally removed the tenant and her belongings from the premises. Landlords cannot act in this way. The landlord did not have agreement to end the tenancy on 5 March 2023 or a Tribunal order permitting this action. It is in the public interest that landlords abide by tenancy laws.
The tenant is entitled to damages for the way that the landlord had behaved with the unlawful entries. I consider that one weeks rent of $700 is reasonable. Quiet enjoyment
Tracy Cui claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The landlord threatened to cancel the tenant’s swipe card access to the premises. This threat amounts to harassment. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
In February 2023 the landlord had emailed the Body Corporate asking about cancelling the tenant’s access cards. At the hearing the landlord advised that the guests felt uncomfortable about the situation and decided to move out on 5 March 2023. This is not surprising given the threat of access being stopped.
In addition, the landlord decided to knock on the door of the premises and advise the tenant’s guests of the situation with the Body Corporate. The landlord advised that they would not kick the guests out but were not sure how the Body Corporate would deal with the situation. This behaviour amounts to harassment.
The landlord would have been aware of the consequences of the harassment. The harassment resulted in the tenant feeling uncertain about continued access and in the tenant’s guests moving out early. Landlords cannot harass tenants in this way. I consider that the tenant should be awarded damages for this, and I calculate the damages at one weeks rent of $700.00. Tenant’s belongings
As mentioned above the landlord removed the tenant’s belongings from the premises. A new tenancy commenced on 6 March 2023. The tenant was concerned that her belongings remained in the premises and were being used by the new tenants.
At the hearing the landlord assured the Tribunal that the tenant’s belongings were in storage at the landlord’s home at 14A Niagara Crescent, Lynfield. The only item which the landlord was unsure about was the wall art. This uncertainty may have been because the tenant says she can see the premises from where she lives, and the wall art is still on the wall.
There was agreement at the hearing that the tenant would uplift her belongings from the Lynfield address at 6pm on 5 September 2023. In relation to the wall art the tenant is to uplift this from the premises once the landlord has obtained consent and given notice to the current tenants. That should occur within the next seven days from the date of this order.
This order is to remain open until 12 September 2023. The tenant is to advise the Tribunal if there are any outstanding matters in relation to her belongings. The matters that may be outstanding will relate to missing items or that the items had been used by the landlord’s new tenants. If the tenant contacts Tenancy Services before 12 September 2023 further hearing time can be allocated to look at the issue of the tenant’s belongings. Bond
The tenant has applied for refund of the bond. The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services.
Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
Unfortunately, it became apparent at the hearing that the landlord had not lodged the bond with the Bond Centre. When asked about this the landlord said that she thought that her father did not know that he needed to lodge the bond. She says that the bond for the current tenancy has been lodged. She confirmed that the money is in the landlord’s bank account.
The landlord has not refunded the bond to the tenant. This dispute is the reason why bond money should be lodged with the Bond Centre. If the tenant had applied for exemplary damages in relation to the failure to lodge the bond an award would have been made.
As the landlord has retained the bond money it needs to be returned to the tenant.
Because Tracy Cui has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4522385 — net $4,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund of bond	$2,800.00	Refund of bond
Exemplary damages: Unlawful entry	$700.00	Unlawful entry
Compensation: Quiet enjoyment	$700.00	Quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,220.44
Total payable by Landlord to Tenant	$4,220.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Heng Xu must pay Tracy Cui $4,220.44 immediately.
This hearing is adjourned for the purpose of further consideration of the return of the tenant’s belongings.
If Tracy Cui has not advised that there are issues with the return of her belongings by 12 September 2023, the hearing will be treated as complete and the final order issued by the Tribunal.

Reasons

Both parties attended the hearing. The landlord had a mandarin interpreter present, but he was not required.
The tenancy began on 26 November 2019. The tenant says that there were three fixed term tenancies. Two of the tenancy agreements have been submitted. The first tenancy agreement records a fixed tenancy from 26 November 2019 until 29 November 2020. The second tenancy agreement records a fixed tenancy from 30 May 2022 until 27 November 2022. It is presumed that there was a fixed tenancy in between November 2020 and May 2022. After the end of the third fixed term tenancy in November 2022 the tenancy became periodic in accordance with section 60A Residential Tenancies Act 1986.
The two tenancy agreements record that the tenant may sublet the apartment. This term would continue when the tenancy became periodic in accordance with section 60A(1) of the Act.
The landlord was aware from the beginning that the tenant was using the tenancy for Air BnB clients. As some stage the landlord became aware that this was in breach of the Body Corporate Rules. In September 2022 the landlord was fined for this by the Body Corporate.
In December 2022 the landlord purported to give notice to the tenant to end the tenancy. The reason given for ending the tenancy was due to the $350.00 fine for running an Air BnB. The tenant was given notice that the tenancy would end on 28 February 2023.
In January 2023 the tenant advised the landlord that she had a booking that was due to end on 23 March 2023. The tenant produced a registered translation of communication between her and the landlord. It appears that the landlord has agreed to extend the tenancy until 23 March 2023.
The communication between the landlord and tenant broke down. According to the evidence submitted the parties had agreed to end the tenancy on 23 March 2023. Unlawful entry
Tracy Cui claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord attended at the premises to meet with the guests without notice on at least one occasion and then on 5 March 2023 he attended to remove the tenant’s belongings. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The landlord’s evidence is that it became frustrated by the lack of communication with the tenant, but there was email communication throughout February 2023. The landlord communicated directly with the tenant’s guests and the guests decided to move out of the premises early. The date they decided to move out was on 5 March 2023. But this was not the date that the parties agreed to end the tenancy.
On 5 March 2023 the landlord attended at the premises. The tenant says that the landlord was acting aggressively and took her keys off her. The landlord went into the premises and started to remove the tenant’s belongings. The tenant produced two photographs of her belongings being dumped outside the front door of the premises. The tenant says she called the Police, but they were unable to assist and recommended that she apply to the Tenancy Tribunal.
The landlord did not give the tenant notice of entry and therefore has breached section 48(1) of the Act. The tenant no longer had access to the premises. The landlord unilaterally removed the tenant and her belongings from the premises. Landlords cannot act in this way. The landlord did not have agreement to end the tenancy on 5 March 2023 or a Tribunal order permitting this action. It is in the public interest that landlords abide by tenancy laws.
The tenant is entitled to damages for the way that the landlord had behaved with the unlawful entries. I consider that one weeks rent of $700 is reasonable. Quiet enjoyment
Tracy Cui claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The landlord threatened to cancel the tenant’s swipe card access to the premises. This threat amounts to harassment. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
In February 2023 the landlord had emailed the Body Corporate asking about cancelling the tenant’s access cards. At the hearing the landlord advised that the guests felt uncomfortable about the situation and decided to move out on 5 March 2023. This is not surprising given the threat of access being stopped.
In addition, the landlord decided to knock on the door of the premises and advise the tenant’s guests of the situation with the Body Corporate. The landlord advised that they would not kick the guests out but were not sure how the Body Corporate would deal with the situation. This behaviour amounts to harassment.
The landlord would have been aware of the consequences of the harassment. The harassment resulted in the tenant feeling uncertain about continued access and in the tenant’s guests moving out early. Landlords cannot harass tenants in this way. I consider that the tenant should be awarded damages for this, and I calculate the damages at one weeks rent of $700.00. Tenant’s belongings
As mentioned above the landlord removed the tenant’s belongings from the premises. A new tenancy commenced on 6 March 2023. The tenant was concerned that her belongings remained in the premises and were being used by the new tenants.
At the hearing the landlord assured the Tribunal that the tenant’s belongings were in storage at the landlord’s home at 14A Niagara Crescent, Lynfield. The only item which the landlord was unsure about was the wall art. This uncertainty may have been because the tenant says she can see the premises from where she lives, and the wall art is still on the wall.
There was agreement at the hearing that the tenant would uplift her belongings from the Lynfield address at 6pm on 5 September 2023. In relation to the wall art the tenant is to uplift this from the premises once the landlord has obtained consent and given notice to the current tenants. That should occur within the next seven days from the date of this order.
This order is to remain open until 12 September 2023. The tenant is to advise the Tribunal if there are any outstanding matters in relation to her belongings. The matters that may be outstanding will relate to missing items or that the items had been used by the landlord’s new tenants. If the tenant contacts Tenancy Services before 12 September 2023 further hearing time can be allocated to look at the issue of the tenant’s belongings. Bond
The tenant has applied for refund of the bond. The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services.
Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
Unfortunately, it became apparent at the hearing that the landlord had not lodged the bond with the Bond Centre. When asked about this the landlord said that she thought that her father did not know that he needed to lodge the bond. She says that the bond for the current tenancy has been lodged. She confirmed that the money is in the landlord’s bank account.
The landlord has not refunded the bond to the tenant. This dispute is the reason why bond money should be lodged with the Bond Centre. If the tenant had applied for exemplary damages in relation to the failure to lodge the bond an award would have been made.
As the landlord has retained the bond money it needs to be returned to the tenant.
Because Tracy Cui has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4522385 — Exemplary damages at Unit/Flat 2010, 10 Waterloo Quadrant, Auckland Central,

At a glance

Tenancy Tribunal case 4522385 — Exemplary damages at Unit/Flat 2010, 10 Waterloo Quadrant, Auckland Central,

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions