What was the outcome of Tenancy Tribunal case 4606372?

The tribunal order states: David Fletcher as the trustee of Lilburn Street Trust must pay Kimberley Alice

How much money was awarded in case 4606372?

Compensation: $1,000.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to landlord

What type of tenancy dispute was case 4606372?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4606372?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11606887-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4606372?

The tribunal order states: David Fletcher as the trustee of Lilburn Street Trust must pay Kimberley Alice

How much money was awarded in case 4606372?

Compensation: $1,000.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to landlord

What type of tenancy dispute was case 4606372?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4606372?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11606887-Tribunal_Order.pdf.

3132A Kaipara Coast Highway, Glorit, Warkworth 0984 Tenancy Tribunal Case 4606372 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4606372 — net $1,750.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for damage to lounge carpet	$2,000.00		Compensation for damage to lounge carpet
Compensation for landlord breaches		$1,000.00	Compensation for landlord breaches
Exemplary damages – breaches of section 13A RTA		$250.00	Exemplary damages – breaches of section 13A RTA
Exemplary damages – breaches of section 45(1A) RTA		$1,500.00	Exemplary damages – breaches of section 45(1A) RTA
Exemplary damages – termination of tenancy without		$1,000.00	Exemplary damages – termination of tenancy without
Total award	$2,000.00	$3,750.00
Net award		$1,750.00
Total payable by Landlord to Tenant		$1,750.00

Claims and awards in Tenancy Tribunal application 4606372 — net $1,750.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for damage to lounge carpet	$2,000.00		Compensation for damage to lounge carpet
Compensation for landlord breaches		$1,000.00	Compensation for landlord breaches
Exemplary damages – breaches of section 13A RTA		$250.00	Exemplary damages – breaches of section 13A RTA
Exemplary damages – breaches of section 45(1A) RTA		$1,500.00	Exemplary damages – breaches of section 45(1A) RTA
Exemplary damages – termination of tenancy without		$1,000.00	Exemplary damages – termination of tenancy without
Total award	$2,000.00	$3,750.00
Net award		$1,750.00
Total payable by Landlord to Tenant		$1,750.00

Order

David Fletcher as the trustee of Lilburn Street Trust must pay Kimberley Alice McMullen $1,750.00 immediately, calculated as shown in table below:
The tenant’s applications for exemplary damages for the non (late) lodgement of the bond, compensation for breaches of her quiet enjoyment, and the costs for her lay representative preparing for and attending the hearing are dismissed.
The landlord’s application is dismissed other than for compensation for damage to the lounge carpet.
The Bond Centre to pay the bond of $1,000.00 (5725556-003) to Kimberley Alice McMullen immediately.

Reasons

Background

These applications have had a torturous journey through the Tribunal.
The tenancy started on 24 October 2021 and ended on or about 11 July 2023. The tenancy premises were located on a rural property. Often, rural tenancies are problematic due to the unique factors associated with the use of land and interactions with other rural dwellers. This tenancy was no exception.
On 14 June 2023, shortly before the tenancy ended, the tenancy ended, the tenant lodged her application. She seeks a refund of her bond, exemplary damages for multiple breaches by the landlord that amount to defined unlawful acts, and compensation for other breaches by the landlord, including a breach of her quiet enjoyment of the tenancy.
On 25 January 2024, so more than 6 months later, the landlord Mr Fletcher lodged an application as trustee of the Lilburn Street Trust. He sought compensation for cleaning, rubbish removal and repairs and exemplary damages for the tenant’s alleged unlawful acts. Pre-hearing directions conferences
The tenant’s application was scheduled for hearing on 25 August 2023. Both parties attended the hearing.
The tenant was assisted by Ms Donald, a lay advocate/representative. The landlord trustee Mr Fletcher instructed counsel Mr Shahtamasebi. I approved legal representation for both parties, the monetary threshold for that having been met. Ms McMullen elected to retain Ms Donald as her representative rather than appoint counsel.
The landlord confirmed receipt of a bond of $1,000.00. I ordered the landlord to lodge the bond with the Bond Centre.
The parties agreed to attend mediation, with the Tribunal’s encouragement. They were unable to reach any agreements, however.
I then held a telephone directions conference with the parties on 11 March 2024. By then, the landlord had filed a comprehensive cross application.
I made directions for the tenant to file an amended statement of claim, for the landlord to respond, and for the tenant to reply. I also directed the landlord to file their evidence and submissions.
On 19 July 2024, I issued a further order adjourning the hearing that was scheduled following the previous directions conference. I directed that a 2-day fixture be set after 1 October 2024.
The hearing was set for 28 November 2024. On 22 November, the tenant sought a further adjournment. I declined that application, noting the previous adjournments and the directions earlier given.
The hearing proceeded as scheduled. I heard both applications in full, but allowed the landlord until 2 December 2024 to provide invoice evidence in support of their claims.
At this point I wish to address the length of time between the hearing and the issuing of this decision. These applications are not unusual or especially complex in terms of the Tribunal’s ordinary work. What has made them different is the sheer volume of material placed before the Tribunal. That has taken the Tribunal a lot of time to consider and reflect on. Never before have I encountered such a volume of material on applications such as this.
Unlike Courts, where decision writing time is scheduled, the Tribunal usually finds decision writing time within its usual hearing day schedule, for example, when other cases are adjourned at short notice. These applications have required me to request scheduled decision writing time outside of the Tribunal’s case load scheduling, and that takes time to arrange. I forewarned the parties that there would be a delay before the decision was issued.
I have considered all the material placed before the Tribunal, the evidence given at the hearing and the submissions made, even if I do not specifically refer to it. The volume of documentation means that specific reference to everything provided is simply not possible. The issues
On the tenant’s application (the first application filed) the issues are these: •Did the landlord fail to include all required information in the tenancy agreement? •Did the landlord breach the tenant’s quiet enjoyment? If so, did the breach or breaches amount to harassment? •Did the landlord fail to provide the premises in a reasonable state of repair, and/or fail to maintain and repair the premises and comply with the Healthy Homes Standards (HHS)? •Did the landlord fail to lodge the bond? •Did the landlord terminate the tenancy without valid grounds? Was the notice to terminate retaliatory? •Should the tenant be awarded compensation in addition to exemplary damages? •Can the Tribunal award the costs of representation?
On the landlord’s application, the issues are these: •Did the tenant fail to leave the premises in a reasonably clean and tidy condition, and did she fail to remove rubbish? •Did the tenant cause careless or intentional damage to the premises? If so, should the Tribunal award compensation? •Did the tenant commit any unlawful acts? If so, should the Tribunal award the landlord exemplary damages? •Various issues not directly related to the tenancy. Relevant legal considerations Statutory responsibilities
Section 13A of the Residential Tenancies Act 1986 (RTA) sets out the information that must be included in a tenancy agreement concerning insulation, compliance with the HHS and insurance details (among other things).
Section 19 RTA sets out the duties of a landlord on receipt of the bond, including the requirement to lodge it with the Bond Centre (expressed as forwarding it to the chief executive) within 23 working days.
Section 38 provides that the tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord; and the landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
Section 40 RTA sets out a tenant’s responsibilities. Included among them are the responsibility to pay rent when due; to keep the premises reasonably clean and tidy; to leave the premises in a reasonably clean and tidy condition; and to quit the premises when the tenancy ends.
The tenant must not intentionally or carelessly damage or permit any other person to damage the premises; interfere with or render inoperative any means of escape from fire; or use the premises, or permit the premises to be used, for any unlawful purpose.
Section 45 RTA sets out a landlord’s responsibilities. Included among them are the responsibility to provide the premises in a reasonably clean state; to provide and maintain the premises in a reasonable state of repair (having regard to the age and character of the premises); and to comply with the Healthy Homes Standards (HHS).
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541. Compensation and exemplary damages
The Tribunal may award compensation to a party for losses arising from a proven breach or breaches by the other party 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 (for a tenant) 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 like a fine.
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 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. Findings The tenant’s application
Having considered all the evidence, both oral and documentary, I have come to the following conclusions. Did the landlord fail to include all required information in the tenancy agreement?
Only 2 pages of the tenancy agreement were produced in evidence. I find that the landlord failed to comply with their section 13A RTA responsibilities in relation to insulation, HHS compliance, and insurance disclosure.
These failures are defined as unlawful acts for which exemplary damages up to $750.00 may be awarded.
Even if the landlord was unaware of these requirements, ignorance of the law is no defence. Mr Fletcher, as trustee, assumed responsibility for the tenancy. He is liable for the consequences of any breaches by the landlord.
The disclosure of this information is important because it impacts a tenant’s decision to take up the tenancy. And it can impact the tenant’s potential liability for damage as that depends on the amount of the insurance excess.
I find that this breach was an intentional one, it had an effect on the tenant, it was against her interests, and it was against the public interest. Landlord compliance with the requirements of the RTA is in the public interest as it ensures integrity in the landlord/tenant relationship.
For these section 13A RTA breaches I award the tenant exemplary damages of $250.00. Did the landlord breach the tenant’s quiet enjoyment? If so, did the breach or breached amount to harassment?
The tenant gave evidence that the landlord texted her repeatedly; persuaded her to provide statement evidence in his relationship property dispute with his former wife; and would show up without notice, banging on her door and yelling at her to come and answer it. She said she felt as though she had to provide security for the farm during the period when Mr Fletcher was in prison and ‘all sorts of people came and went from the farm’.
The evidence shows text communications between the parties, not just texts initiated by Mr Fletcher. In the overall context of this tenancy, I find there were aggravations caused by each party to the other. The evidence does not establish that the landlord breached the tenant’s quiet enjoyment so as to reach the threshold of harassment. I therefore decline to award exemplary damages. Did the landlord fail to provide the premises in a reasonable state of repair, and/or fail to maintain and repair the premises and comply with the Healthy Homes Standards (HHS)?
Although the tenant did not supply a HHS assessment to support her claim that the premises were non-compliant with the HHS, it is evident from the photos she produced in evidence that the premises probably did not comply. There are obvious holes in the guttering resulting in the ponding of water; gaps around windows; no working extraction fan in the bathroom; and a large hole in a wall – all issues relevant to the HHS.
The photos also establish that the landlord failed to maintain and repair the premises and that the premises were not provided, in part, in a reasonable state of repair.
That the landlord did some work, as detailed in the evidence, both before and during the tenancy, does not mean that his obligations as a landlord were satisfied.
The tenant gave evidence about the failing septic tank that resulted in water ponding and stench; the absence of stairs from French doors to the ground which created an unsafe drop; the ceiling and wall holes that required repairs; and the poor state of the roof that enabled water to ingress into the lounge and laundry.
Breaches of the HHS and the failure to maintain and repair are the same kind of breach for the consideration of exemplary damages.
The Tribunal may award exemplary damages up to $7,200.00 for these breaches - see section 45(1A) RTA.
I find that the tenant has proved that the landlord committed these breaches intentionally; the landlord’s actions affected her and were against her interests; and the landlord’s non-compliance was against the public interest. I award the tenant exemplary damages of $1,000.00 for the landlord’s proved section 45(1) RTA breaches. This takes into account the work the landlord did before and during the tenancy.

Did the landlord fail to lodge the bond?

The landlord failed to lodge the bond until the Tribunal directed him to. The bond was paid close in time to the start of the tenancy. The failure to pay the bond within the required statutory timeframe is a defined unlawful act for which the Tribunal may award exemplary damages up to $1,500.00.
I find that the landlord’s failure was not intentional in this case. The landlord explained that the tenant did not return the signed bond form; that his wife took a computer with the tenancy details when they separated; and that the person he employed to do the Trust’s administration (Kelly) liaised with the tenant but did not lodge the bond because she never received the documents.
In Burrowes v Jordan CIV-2014-009-000599 the District Court on appeal dealt with a similar fact situation. I am bound by that decision. I find that the landlord was negligent but did not act intentionally. I dismiss the application for exemplary damages for the non (late) lodgement of the bond. Did the landlord terminate the tenancy without valid grounds? Was the notice to terminate a retaliatory?
The landlord issued 2 separate notices to terminate the tenancy (on 27 March and on 3 May 2023), each for the same reason – that he (or rather the Trust) customarily uses the premises, or has acquired the premises, for occupation by employees of the landlord or by contractors under contracts for services with the landlord – notices under section 51(1)(b) RTA.
I find that the notices to terminate the tenancy were invalid notices. The evidence does not establish that the landlord customarily used the premises, or had acquired the premises, for use by employees. Before this tenancy started, Mr Fletcher’s family resided in the premises. That the premises were used on occasion by employees (and I note the evidence of Ben Price, the tenant who took up residence after Ms McMullen vacated) does not establish that the premises were acquired or used customarily by employees.
I find it probable that the landlord knew he was not able to terminate the tenancy but did so on made-up grounds. That is an unlawful act under section 60AA RTA for which the Tribunal may award exemplary damages up to $6,500.00.
The landlord acted with intent (twice). He wanted the tenant gone. His wrongful termination notice had an effect on the tenant. She said even though she wanted to challenge the termination, she felt anxious and stressed and decided to find another property to rent. The landlord’s action was against the tenant’s interests and against the public interest. For this unlawful act I award the tenant exemplary damages of $1,500.00.
It is possible that the landlord acted in a retaliatory manner. However, I cannot conclude that he did so on the balance of probabilities.
First, there is a 28-working-day time limited on such applications – see section 54(1) RTA. So, if based on the second notice to terminate as the retaliatory act, the tenant missed that time frame.
Second, the tenant’s 14-day notice for breaches by the landlord is dated 18 May 2023, almost 2 weeks after the second notice to terminate the tenancy had been given. Even if I found the notice to terminate the tenancy to be a retaliatory notice, nothing further would eventuate. The tenant had left the tenancy so a declaration setting aside the notice would be of no benefit. Nor would additional exemplary damages be awarded as the breaches are of a similar nature, both arising from the notice to terminate. Should the tenant be awarded compensation in addition to exemplary damages?
The landlord’s failure to provide the premises in a reasonable state of repair, maintain and repair the premises, and comply with the HHS all affected the tenant’s enjoyment of the tenancy.
As I have noted, compensation is different from exemplary damages which are punitive. Compensation addresses loss. In addition to the award of exemplary damages I award the tenant compensation of $1,000.00 for the effects of the landlord’s breaches.
The tenant raised other matters that the Tribunal cannot consider or compensate such as looking after Mr Fletcher’s animals while he was in prison, caring for his horses, working with colts, and him wanting her to complete a questionnaire relevant to charges for which he spent time in prison on remand.
Those are matters that do not directly relate to the parties’ rights and responsibilities under the RTA. The tenant chose to do those things, she was not forced. For clarity though, I do not find that there was any employment relationship between the tenant and Mr Fletcher/the Trust that would establish a service tenancy between the parties.

Can the Tribunal award the costs of representation?

The Tribunal cannot award costs for Ms Donald’s lay representation. She appeared as a lay representative, not as counsel. Costs may be awarded where a party is represented by counsel, though they seldom are, or if they are, they are minimal. I cautioned the parties early on about their respective exposure to meeting their own legal costs.
The Tenancy Tribunal is a lay tribunal. That counsel might be given approval to appear does not alter that. The decision to award legal costs is a discretionary one – see section 102(2) RTA. Findings The landlord’s application
On the landlord’s application, the issues are these: • Did the tenant exceed the number of tenants allowed at the premises? If so, what is the remedy? • Did the tenant permit the premises to be used for an unlawful purpose? • Did the tenant sub-let the premises by renting a caravan to another person? • The tenant missed rent payments – what is the remedy? • Did the tenant fail to leave the premises reasonably clean and tidy, and to remove all rubbish? • Did the tenant fail to leave chattels provided at the start of the tenancy? • Did the tenant damage the premises? If so should the landlord be paid compensation? • Did the tenant interfere with the peace, comfort, and privacy of other tenants? • Did the tenant fail to allow entry? • Should the landlord be compensated for the theft of fuel? Did the tenant exceed the number of tenants allowed at the premises? If so, what is the remedy?
The landlord states that the tenant had her partner BJ stay at the premises without consent and in breach of the tenancy agreement.
The 2 pages of the tenancy agreement produced in evidence do not state the maximum number of tenants that may reside at the premises. The part of the tenancy agreement where that would be recorded just refers to permission for 2 dogs to be allowed at the premises.
The landlord has not proved any breach by the tenant. This claim is dismissed. Did the tenant use or permit the premises to be used for an unlawful purpose?
The landlord alleges that there was drug use at the premises during the tenancy.
The landlord accepts that there was no pre-tenancy drug test completed. He said there was no need since the premises were newly redecorated for his wife.
The landlord referred to a methamphetamine test report dated 13 July 2023, two days after the tenancy ended. The composite sample was 1.99μg/100cm². The highest individual test was 4.2, the others 0.19, 3.0, and 0.35.
The report confirms that it is highly unlikely that methamphetamine was manufactured at the premises, but there was likely consumption. It was recommended that the premises be decontaminated.
The Tribunal works to a level of 15μg/100cm² before premises are considered to be contaminated in a way that presents a health risk. That reflects the advice given to the government at the time by the then chief science advisor, Professor Sir Peter Gluckman.
Here, the levels are so low in 2 tests as to be almost non-existent. The 3.0 and
2 levels mean that the premises are not considered contaminated in the sense of a health risk.
The tenant denied any drug use at the premises.
I find that the landlord has not established that the premises were used for an unlawful purpose. There was no pre-tenancy drug test completed and the test soon after the tenancy ended showed very low levels in 2 areas only. The landlord has not proved any intentional act by the tenant using or allowing the premises to be used for an unlawful purpose. Did the tenant sub-let the premises by renting a caravan to another person?
The landlord alleges that the tenant allowed a person to rent her caravan, without the landlord’s consent.
The tenant said she believed that Mr Fletcher had made a genuine error with this allegation. She said another tenant who resided elsewhere on the farm had a house bus and caravan and allowed a friend to ‘camp out’ there but without any tenancy agreement or the need to pay rent. She said it was ‘easy to mix up back yards’.
This claim is confused and confusing. The landlord has not proved on the balance of probabilities that the tenant ‘sublet the tenancy or parted with possession’ which is the prohibition in the tenancy agreement. Even if she allowed someone to live in a caravan that would not constitute parting with possession or subletting the tenancy. This claim is dismissed. The tenant missed rent payments – what is the remedy?
The landlord gave evidence that the tenant was late with her rent payments during the tenancy which meant he incurred costs for the time his agent Kelly spent collecting the rent.
There were no rent arrears at the end of the tenancy, although the landlord states that the tenant remained in possession for a further 3 days. The rent for that period is $214.29.
That all the rent was paid by the end of the tenancy means there is no issue to be remedied. Tenants often miss rent payments for a variety of reasons. The tenant said she was late in her payments on 4-5 occasions, but sometimes she was in advance.
This is a usual part of the business of being a landlord, akin to a self-employed person chasing up the late payment of an invoice. In the absence of any rent arrears at the end of the tenancy, there is no order the Tribunal can (or should) make. The RTA provides a mechanism for notifying unpaid rent – a 14-day breach notice.
If the tenant remained in possession for 3 days longer than she should have, the Tribunal declines to make a rent order for that time, given the finding that the landlord did not have grounds to terminate the tenancy for the reasons it gave. Did the tenant fail to leave the premises reasonably clean and tidy, and to remove all rubbish?
The landlord produced in evidence an invoice for $4,258.00 for exterior rubbish removal and dump fees and an invoice for cleaning the section, removing the tenant’s rubbish including old appliances and car parts, and interior cleaning for $3,500.00.
In evidence Mr Fletcher described how the property overall comprised 89 acres with five farm dwellings. Overall, the Trust had 3,500 acres and employed up to 10 employees.
The tenant said that much of the rubbish shown in the landlord’s photos was from an area that was not part of the tenancy premises, but part of the farm; trees and drainage coils had been there since a storm, and rubbish in a burn pile was so rusted which showed it had been there a long time.
The landlord is caught by an absence of evidence. Had this been a properly managed tenancy there would have been a completed tenancy agreement with an inspection report signed by both parties, and there would be clear photos taken at the start of the tenancy.
While some photos have been produced in evidence, the Tribunal cannot determine what rubbish removal was needed due to any tenant breach. Mr Fletcher was absent for a period whilst in prison. After that, he was at pains to explain that he never went to the premises.
Mr Fletcher, through his lawyer (email 2 December 2024), estimates that the Trust incurred between $12,000.00 and $15,000.00 to remediate the property after the tenant left. Yet, the invoices he produced total $17,923.00 and that is what he appears to seek.
Without documentary evidence pre and post tenancy and a completed pre- tenancy inspection report signed by the parties, the Tribunal is left with the competing oral evidence of the parties. Given the animosity between them, the Tribunal cannot prefer the evidence of one party over the other. The truth probably lies somewhere in between.
However, it is for the landlord to prove his claim. The absence of documentary evidence as I have described means he has not done that. The claim for rubbish removal and cleaning is dismissed.

Did the tenant fail to leave chattels provided at the start of the tenancy?

The landlord claims that the tenant took the lounge curtains when she vacated the tenancy; the tenant denies she did. There is no pre-tenancy inspection report in the tenancy agreement recording what chattels were provided as part of the tenancy. Photos produced in evidence show that there were curtains in the lounge. The tenant supplied other curtains which she took with her (as she was entitled to) at the end of the tenancy.
The tenant accepted that she disposed of net curtains.
The evidence is so conflicted that the Tribunal cannot make a reasoned decision on this issue. Even if it found that the tenant took the lounge curtains, there is no evidence as to their value for an award of compensation to be made.
The landlord also referred to property owned by the landlord being missing – a quad bike, 2 chain saws, work boots, an airless spray gun, and steps. The value of these items amounts to about $12,000.00.
Again, the theft of property (these were not chattels supplied as part of the tenancy and recorded in a list of chattels) is a police matter, not a matter the Tribunal has jurisdiction to determine.
Counsel for the landlord said that a police complaint would be made. Given the stated value of the items allegedly stolen it seems odd that the landlord has not initiated police action already.
This claim for compensation for chattels removed and/or allegedly stolen by the tenant is dismissed. Did the tenant damage the premises? If so would the landlord be paid compensation?
This claim for damage comprises carpet and underlay replacement ($4,000.00); internal repairs to window latches and catches, the pantry louvres; holes in walls; and damage to French doors (2,339.00); replacing missing steps; repainting walls; and fitting new curtain tracks ($3,826.00).
The tenant said she had 2 dogs, but they were kept in crates inside. She said that Mr Fletcher’s wife left a cat behind when she moved out, and the cat constantly came inside and would urinate inside the premises even though she fed it outside.
The tenant denied causing the damage alleged by the landlord. She said the premises were old probably built in the 1950s and were not easy to clean and maintain.
As with the landlord’s cleaning and rubbish removal claim, there is an absence of clear documentary evidence, and what evidence there is conflicts. I find it probable that the cat (even if left behind by Mr Fletcher’s wife) did cause damage to the carpet (described in the invoice as dog urine, but probably cat urine based on the tenant’s evidence).
It was the tenant’s responsibility to ensure the cat did not access the premises especially when she knew it was soiling inside.
Of the landlord’s claims for damage this is the only one I find proved. Because of the evidential inadequacy, I award the landlord compensation for the damage to the carpet of $2,000.00 only. That also takes into account depreciation and fair wear and tear. Did the tenant interfere with the peace, comfort, and privacy of other tenants?
The landlord alleges that the tenant’s dogs attached his horses, sheep and a cat; that the tenant’s boyfriend did burn outs up and down the road; that he chopped fences and opened gates; and that he was dealing drugs.
These allegations, all denied by the tenant, again have no objective evidential basis. The tenant gave evidence that there were well known issues locally with people doing burn outs, with numerous social media posts. She said there were on-going issues with wandering stock and gates being left open.
This claim fails for lack of evidence and is dismissed.

Did the tenant fail to allow entry?

This claim is a vague statement that Mr Webster, another trustee, went to the premises on several occasions and could not gain entry.
The tenant said that screenshots between her and Mr Fletcher showed she did not object when Mr Webster was at the premises, but she needed sufficient notice. She said that Mr Webster came unannounced on 3 occasions when she was not there and on one occasion entered the house.
These allegations are vague as I have noted, and unsupported by evidence such as breach notices. This clam fails for lack of proof.

Should the landlord be compensated for the theft of fuel?

The landlord said that fuel loss happened a lot on the farm and was a huge loss. If fuel was stolen, that is a police matter, not one that falls within the jurisdiction of the Tenancy Tribunal. There is no evidence to establish that the tenant stole fuel from the landlord and thereby caused him a loss. This claim is dismissed. Comment
This is a case where the parties would have the Tribunal believe that each was the innocent victim of the other’s bad behaviour. Seldom is that the case and I formed the conclusion that it was not the case here either.
After the tenant made her application, is seems to the Tribunal that the landlord, after several months, ‘threw the book at her’ in terms of the number of claims made against her.
However, that the landlord has been unable to prove most of his claims does not mean that the Tribunal believes that the tenant is blameless in the manner in which she treated the premises. It simply means that the landlord has been unable to prove the alleged breaches.
Tenancies of this nature that start on an informal basis and that are not managed properly, with limited documentary evidence and few inspections and few if any interventions when issues arise, only work for so long as they work. Once disputes arise, then the parties face evidential barriers proving their claims.
The landlord can claim many of his losses as deductions in the Trust’s books of account so by a different route can get some relief for the losses he claims to have suffered.
That might include his legal expenses since they will be considerable given the amount of work counsel was instructed to do.
Finally, counsel referred the Tribunal to several decisions by the Tribunal addressing similar issues. I have not referred to those decisions and I should explain why.
I have set out in some detail the legal principles that apply to cases such as this. Cases like this are highly fact specific. They are decided on their own facts but with reference to relevant case law. Result
The tenant’s application is successful in the amount of $3,750.00 comprising exemplary damages of $2,750.00, compensation of $1,000.00.
The landlord’s application is successful in the amount of $2000.00.
The landlord will pay the tenant $1,750.00.
The bond will be paid to the tenant in full.
There is no order for costs, the landlord’s application being mostly unsuccessful. Name suppression
Both parties sought a name suppression order. As neither has been fully or mostly successful, I make no name suppression orders – see section 95A RTA.

Tenancy Tribunal case 4606372 — Exemplary damages at 3132A Kaipara Coast Highway, Glorit, Warkworth 0984

At a glance

Tenancy Tribunal case 4606372 — Exemplary damages at 3132A Kaipara Coast Highway, Glorit, Warkworth 0984

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to lodge the bond?

Can the Tribunal award the costs of representation?

Did the tenant fail to leave chattels provided at the start of the tenancy?

Did the tenant fail to allow entry?

Should the landlord be compensated for the theft of fuel?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to lodge the bond?

Can the Tribunal award the costs of representation?

Did the tenant fail to leave chattels provided at the start of the tenancy?

Did the tenant fail to allow entry?

Should the landlord be compensated for the theft of fuel?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions