Published tribunal order
Tenancy Tribunal case 4617170 — Tenancy dispute at 172A Ohauiti Road, Hairini, Tauranga 3112
Decided 9 Aug 2023 · Published 9 Aug 2023 · Application 4617170
Tenant favoured
- Exemplary damages
- Filing Fee
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Jasmine Chappell must pay Stephanie Williams $560.44 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing, conducted via teleconference.
- The tenant sought the return of her bond and exemplary damages for the landlord’s failure to lodge to the bond with the Bond Centre. Return of the 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 (“RTA”) 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. Failure to lodge the bond
- The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- 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 Residential Tenancies Act 1986.
- The landlord did not lodge the bond. I find they have technically 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.
- I do not find there was any intent in the landlord’s failure to lodge the bond I and decline to order any exemplary damages for this. As part of the hearing, consideration of any possible exclusion under s 5(n) Residential Tenancies Act 1986 meant both parties made submissions on the arrangements. The landlord has other people at the premises whom she describes as flatmates. She has also taken bonds from them that have not been lodged. The rooms are advertised on a room-only basis via social media. The landlord is away on an extended working holiday, expecting to return in October this year. The tenant occupied what was the landlord’s (master) bedroom prior to her leaving for the working holiday. However, the landlord intents to return and use the smallest bedroom from then and rent out the master bedroom. She was advised to review her current practise vis-à-vis renting out the rooms.
- Section 10 RTA requires, where, in any proceedings before the Tribunal, a party contends that the RTA does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that the RTA does not apply.
- The landlord accepted this Tribunal’s jurisdiction and indicated her intention to lodge a counterclaim.
- I do not find grounds for any exclusion of this tenancy or application due for lack of jurisdiction under s 5(n) or s 10 RTA. Application filing fee
- Because Stephanie Williams has wholly succeeded with the claim I must reimburse the filing fee.