What was the outcome of Tenancy Tribunal case 4563773?

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

How much money was awarded in case 4563773?

Compensation: Failure To Maintain: $300.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4563773?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4563773?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9227413-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4563773?

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

How much money was awarded in case 4563773?

Compensation: Failure To Maintain: $300.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4563773?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4563773?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9227413-Tenancy_Tribunal_Order.pdf.

45 Green Lane, Motueka, Motueka 7120 Tenancy Tribunal Case 4563773 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4563773 — net $2,080.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Bond refund	$960.00	Bond refund
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Exemplary damages: Failure to appoint agent	$200.00	Failure to appoint agent
Exemplary damages: Failure to provide tenancy agreement	$100.00	Failure to provide tenancy agreement
Compensation: Failure to maintain	$300.00	Failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,080.44
Total payable by Landlord to Tenant	$2,080.44

Claims and awards in Tenancy Tribunal application 4563773 — net $2,080.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Bond refund	$960.00	Bond refund
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Exemplary damages: Failure to appoint agent	$200.00	Failure to appoint agent
Exemplary damages: Failure to provide tenancy agreement	$100.00	Failure to provide tenancy agreement
Compensation: Failure to maintain	$300.00	Failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,080.44
Total payable by Landlord to Tenant	$2,080.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Luarna Skelley aka Luarna Beauvais must pay Gina Robinson and Daniel Robert Robinson $2,080.44 immediately, calculated as shown in the table below:

Reasons

Both tenants attended the hearing, which was conducted via teleconference. Multiple attempts were made to contact the landlord on the number provided however those attempts went straight to voicemail. I was advised that the landlord had similarly failed to attend an earlier fixture for this matter.
I am satisfied that the landlord had notice of the time and date of the hearing, therefore the hearing proceeded in her absence. DescriptionLandlordTenant Bond refund $960.00 Exemplary damages: Failure to lodge bond $500.00 Exemplary damages: Failure to appoint agent $200.00 Exemplary damages: Failure to provide tenancy agreement$100.00 Compensation: Failure to maintain $300.00 Filing fee reimbursement $20.44 Total payable by Landlord to Tenant $2,080.44
The tenants have applied for refund of their bond, compensation for failure to maintain the premises, and exemplary damages for failure to lodge the bond, failure of the landlord to appoint an agent while out of New Zealand and failure to provide a copy of the written Tenancy Agreement.
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenants) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. Summary of Tenants’ Evidence
The tenants described a situation which overall was characterised by relatively poor communication with their landlord and a somewhat cavalier approach to her obligations as a landlord.
This started at the outset when, after having signed a tenancy agreement on the standard Tenancy Services form, the landlord failed to provide a signed copy to the tenants (Claim 1: failure to provide tenancy agreement).
Mr Robinson said he asked her for a copy immediately and she said she would send it to him. This never eventuated. He said he asked her about it several more times and each time she would promise to send it, but nothing ever came.
Mr Robinson said that this was characteristic of many of their interactions with the landlord, where promises were made but action not taken.
The tenants said that they first realised the landlord was away from New Zealand when there was a problem with their oven, and they were not able to reach her.
They said that they were eventually able to get hold of the landlord’s sister who told them that the landlord was in Australia. Within the various text message exchanges provided by the tenants, there is an acknowledgement by the landlord that she has been “stuck in Oz for 9 months” (Claim 2: failure to appoint an agent while out of NZ)
The tenants said that the landlord never told them that she was leaving New Zealand nor informed them of who they should contact if there were any issues when she was away.
The tenants said that throughout the tenancy there were ongoing issues with sewerage at the property. The property was on a septic tank and there were regular problems which impacted on the tenants’ ability to flush the toilet and shower. When the septic tank or pipework blocked up, they said the overflow would go underneath the house leading to a terrible odour as well as health and safety concerns for the tenants and their two children and pets who may have been exposed to raw sewage.
Mr Robinson is a builder and was able to organise a plumber he worked with to come and look at the problem and attempt some repairs. In addition, he worked on the issue himself, including work on the sealing tanks. He said that although he had to organise it, at least the landlord did pay for initial work. Mr Robinson said that the plumber advised the landlord that an old-style porcelain pipe needed replacement. This was never actioned, and the blockages continued.
Mr Robinson said that on the fourth occasion this issue arose, and they were again unable to contact the landlord, that he did a temporary fix himself. He said he spend several hours digging, clearing the waste blockage (which was incredibly unpleasant), and found that the porcelain pipe was indeed failing. He used his own PVC piping to fix the issue. The landlord did not fix the problem or reimburse him for his time and materials (Claim 3: failure to maintain).
Over the tenancy the tenants said this issue happened at least four times, each time resulting in them being unable to use the toilet or shower for around a 24- hour period. They ended up fixing the problems themselves because they just could not wait.
When the tenancy finally ended the tenants then had difficulty getting their bond back. The tenants said that they kept contacting the landlord to try and organise a walk-through or final inspection of the property; again, plans were made and then not followed through; and this never happened.
The tenants ended up filling in a bond refund form themselves and when they could not seem to successfully arrange a time to meet the landlord for her to sign it, they put it under the landlord’s door in an effort to expedite the process.
Eventually, when nothing happened, the tenants contacted the Bond Centre and were advised there was no record of any bond being lodged by the landlord (Claim 4: failure to lodge bond).
Within the various text message exchanges provided by the tenants, there is a statement by the landlord that “I have your bond in cash on me”. This tends to confirm that the bond was not lodged by the landlord.
The tenants said that the landlord told them she was experienced and had been renting properties for 14 years, so they trusted her to do what was needed. They felt let down by their experience with this landlord. Summary of Landlord Evidence
The landlord did not attend the hearing and so there was no evidence from the landlord that I was able to consider.
The tenants’ evidence is therefore uncontested. Findings Bond Refund
Section 22B(2) Residential Tenancies Act 1986 “(the Act”) 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.
Because the bond was not lodged with the Bond Centre, I order the landlord to pay the tenants $960.00 immediately. Failure to Provide Tenancy Agreement Signed and in Writing
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A of the Act.
I find that it is more probable than not that the landlord has breached this obligation and I find therefore that she has committed an unlawful act.
I will deal with the issue of damages below. Failure to Appoint an Agent when Outside NZ
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) of the Act.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A of the Act.
The tenants have explained at paras 11-13 above why they believed the landlord was out of New Zealand for more than 21 days.
I find that it is more probable than not that the landlord was out of New Zealand for longer than 21 consecutive days and that she failed to appoint an agent.
This is an unlawful act. I will deal with the issue of damages below. Failure to Maintain
Under section 45(1)(b) a landlord must provide and maintain the premises in a reasonable state of repair.
Based on the evidence above, I find that it is more probable than not that the landlord failed to properly maintain the premises in relation to the sewerage and septic tank issues.
Property maintenance is the responsibility of the landlord. Is it not for tenants to have to manage property maintenance, regardless of whether they might be capable of doing so. A landlord must positively and proactively manage this obligation.
In relation to sewerage in particular, there are clear health and safety implications if this is not appropriately managed. In this case, the evidence shows that the landlord was told what needed to be done after the first blockage incident. The fact that this was not remedied led to the same issue recurring multiple times and, even at the date the tenancy ended, had not been properly rectified by the landlord (the tenant had completed a temporary repair).
This resulted in a loss of amenity for the tenants. I will deal with the issue of damages below. Failure to Lodge Bond
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) of the Act.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A of the Act.
Failure to lodge a bond is a very serious issue. The bond system is there for a reason. A bond is prima facie a tenant’s money and is not to be used by a landlord for general cash flow purposes. The bond system ensures that a landlord cannot act as their own judge and jury regarding potential claims on the bond.
Failure to lodge a bond undermines the integrity of the bond system which provides security for both tenants and landlords and is one of the fundamental obligations of being a landlord.
I find that it is more likely than not that the landlord has failed to lodge the bond with the Bond Centre. I find they have committed an unlawful act.
I will deal with the issue of damages below. Damages
Damages in civil claims usually fall into two broad categories.
Compensatory damages are as they sound; they aim to compensate any losses incurred by a party.
Exemplary damages are designed to punish and deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal stated: 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.
In this case the primary loss I must focus on in deciding the amount to compensate the tenants is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenants have essentially been paying for something they have not received.
In this case, there has clearly been a loss of amenity. The tenants paid rent and in return expected a home that was properly maintained.
In this case the tenants had to deal with ongoing sewerage problems because the landlord did not promptly and fully rectify the issue when it first occurred. Rather, the landlord relied on the tenant to organise repair work and did not fully complete the repair that was required.
There were at least four occasions for periods of around 24 hours where the tenants were unable to use their toilet and shower and were exposed to raw sewage.
I consider that a figure of $300.00 (which is approximately 4 days rent) is appropriate to compensate the tenants for this loss.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act.
In this case, for the reasons outlined above, I am satisfied that the landlord has committed a number of unlawful acts.
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) of the Act.
Intentional means that the party who has committed the breach must be aware of it. The focus of the intention however must be the act (or omission) and not the legal knowledge of the offending party. The District Court has confirmed that: Like all citizens... [the landlord is]... deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law. 1
I have determined that it is more likely than not that the established breaches were intentional. Based on the evidence this landlord was not a novice landlord; moreover, landlords are running a business and are required to operate their business within the law.
Applying the other criteria in s109(3) most notably the public interest, I observe that these unlawful acts undermine the most fundamental requirements of being a landlord and there is a strong public interest in ensuring that landlords adhere to basic obligations.
I find that it would be just to make an order.
Schedule 1A of the Act outlines the maximum award of exemplary damages available for each of the breaches established. Those maximum amounts are as follows. •Failure to provide copy of signed tenancy agreement - $750.00 •Failure to appoint an agent when outside of NZ - $1500.00 •Failure to lodge the bond - $1500.00
In this case, because there is no evidence that this landlord has previously breached her obligations, I will keep the award towards the lower end of the scale. There will be a slight uplift in relation to failure to lodge the bond because that is a particularly serious breach.
I therefore make the following orders. •Failure to provide copy of signed tenancy agreement - $100.00 •Failure to appoint an agent when outside of NZ - $200.00 •Failure to lodge the bond - $500.00 1 TMT NZ Ltd TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, at para 37
Because the tenants have wholly succeeded with the claim, I must reimburse the filing fee. J R Smith 27 July 2023

Tenancy Tribunal case 4563773 — Exemplary damages at 45 Green Lane, Motueka, Motueka 7120

At a glance

Tenancy Tribunal case 4563773 — Exemplary damages at 45 Green Lane, Motueka, Motueka 7120

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