What was the outcome of Tenancy Tribunal case 4617669?

The tribunal order states: This order replaces the Tribunal order dated 25 October 2023 due to an error in

How much money was awarded in case 4617669?

Property Damage: $900.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4617669?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4617669?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9580666-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4617669?

The tribunal order states: This order replaces the Tribunal order dated 25 October 2023 due to an error in

How much money was awarded in case 4617669?

Property Damage: $900.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4617669?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4617669?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9580666-Tribunal_Order.pdf.

Unit/Flat 1, 19 Cleve Road, Green Bay, Auckland 0604 Tenancy Tribunal Case 4617669 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4617669 — net $920.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Quiet enjoyment	$900.00	Quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$920.44
Total payable by Landlord to Tenant	$920.44

Order

This order replaces the Tribunal order dated 25 October 2023 due to an error in paragraph 20 of that order.
No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Ian Loveday As Agent For Vincent Bernat must pay Emma Cooper-Williams $920.44 immediately.

Reasons

Both parties attended the hearing. The landlord was represented by his agent Ian Loveday.
The tenant has applied in relation to the late lodgement of her bond, a breach of quiet enjoyment, a breach due to unlawful discrimination, a breach on the assignment of agent and a breach of the Healthy Homes standards. Bond
The tenant said that she paid the bond of $1800.00 on 17 May 2023.
According to the landlord the bond was lodged with the Bond Centre on 14 June 2023 which is within the legislated 23 working day timeframe (see section 19(1)(b) Residential Tenancies Act 1986).
However, there was an error made in relation to the lodgement of the bond. The landlord lodged the bond under the name of a prospective tenant for the tenancy who while she had paid the bond money her situation changed, and she did not take up the tenancy. It was that person’s name that was given to the Bond Centre in error. Once the landlord became aware of the error it was rectified and the tenant’s name was provided to the Bond Centre.
On the evidence I do not consider that the tenant has been disadvantaged by the error although I accept that there was a period of confusion. An award against the landlord is not warranted in these circumstances. Quiet enjoyment
Emma Cooper-Williams 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 attended at the tenancy without notice and obtained the tenant’s health information without her consent or knowledge. 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.
On 21 May 2023 the landlord attended at the tenancy without notice. This was the day after the tenant had moved in. According to the tenant the landlord began discussing her health information including that she had cerebral palsy. He apparently said that he had asked the tenant’s mother why the tenant sometimes used a wheelchair.
An email from the tenant’s mother confirmed her recollection of the conversation being that the landlord said he noticed the tenant was in a wheelchair and wondered why.
When the tenant raised this with the landlord, he responded in an email which said, “We were so wiling to help you when we first realised you have some kind of handicap. I didn’t realise the full extent of the problem until I saw your wheelchair being offloaded when you moved in.”
In the email the landlord also said that the tenant’s health information is publicly available on her webpage and is therefore not private information. At the hearing the landlord’s agent said the landlord enquired about the tenant’s health information out of concern. He referred to a pathway which the landlord asked him to keep clear of plant growth for the tenant to have easy access in her wheelchair.
In relation to the landlord attending at the tenancy unannounced the landlord’s agent said that the tenancy is under the landlord’s home. This however is not a valid reason to attend at the tenancy unannounced.
The landlord intended to obtain the tenant’s health information without her knowledge or consent. While the landlord may consider that his reason for seeking this information was out of concern for the tenant the reality is that it is personal and private information. The tenant said she felt distressed, humiliated and her dignity was hurt by both the landlord obtaining the information and the follow up email in which he said she had “some kind of handicap”.
The tenant is entitled to live in a tenancy without unnecessary or intrusive contact from the landlord, even if he does live in the premises above the tenancy. It is not appropriate for the landlord to harass the tenant by obtaining her health information without her knowledge or consent. It is in the public interest for tenants to be able to live without such harassment.
I consider that it is reasonable for the tenant to be awarded $900.00 for this breach. Unlawful discrimination
Emma Cooper-Williams claims that the landlord discriminated against them.
A landlord must not discriminate against a tenant in relation to the grant, renewal, variation or termination of a tenancy, in contravention of the Human Rights Act 1999. See sections 12(1) and 109(3) Residential Tenancies Act 1986.
Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 12(1) and Schedule 1A Residential Tenancies Act 1986.
The landlord obtained the tenant’s health information without her consent and sent correspondence relating to her disability that the tenant found distressing and humiliating. While the landlord’s behaviour is likely to have amounted to discrimination it was not in relation to the grant, renewal, variation or termination of a tenancy. Therefore section 12(1) does not apply to this situation. However, I have taken account of the landlord’s behaviour in the award of a breach of quiet enjoyment.
The tenant’s claim in relation to unlawful discrimination is dismissed. Agent
The landlord’s agent acted on his behalf while the landlord was overseas. Section 16A(1) Residential Tenancies Act 1986 provides that a landlord who is out of New Zealand for longer than 21 consecutive days must ensure the landlord has an agent in New Zealand.
The landlord has complied with this requirement. The tenant was of the belief that she needed to receive documentation advising that there had been a change of landlord. But in these circumstances, it was not required.
The tenant’s claim in relation to the landlord’s agent is dismissed. Healthy Homes standards
The tenant claims that the landlord was in breach of the Healthy Homes standards.
The Healthy Homes compliance deadline for this property is 120 days after the commencement of the tenancy. The compliance date is therefore 17 September 2023.
On the tenancy agreement it states that the draught stopping had been assessed on 21 April 2023 and the property was free from unintentional and unreasonable gaps or holes. The landlord had obtained a Healthy Homes assessment which recorded that the premises complied with the standards.
The tenant did not agree with the assessment and obtained her own assessment which showed that the premises did not comply in relation to draughts. The tenant did not advise the landlord of this nor provide the landlord with a copy of the assessment.
If the landlord was aware of the non-compliance and took no steps, then there may have been merit in this claim. However, in a situation where the landlord has an assessment showing compliance, they are entitled to rely on it.
The tenant’s claim in relation to a breach of the Healthy Homes standards is dismissed.
Because Emma Cooper-Williams has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4617669 — net $920.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Quiet enjoyment	$900.00	Quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$920.44
Total payable by Landlord to Tenant	$920.44

Order

This order replaces the Tribunal order dated 25 October 2023 due to an error in paragraph 20 of that order.
No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Ian Loveday As Agent For Vincent Bernat must pay Emma Cooper-Williams $920.44 immediately.

Reasons

Both parties attended the hearing. The landlord was represented by his agent Ian Loveday.
The tenant has applied in relation to the late lodgement of her bond, a breach of quiet enjoyment, a breach due to unlawful discrimination, a breach on the assignment of agent and a breach of the Healthy Homes standards. Bond
The tenant said that she paid the bond of $1800.00 on 17 May 2023.
According to the landlord the bond was lodged with the Bond Centre on 14 June 2023 which is within the legislated 23 working day timeframe (see section 19(1)(b) Residential Tenancies Act 1986).
However, there was an error made in relation to the lodgement of the bond. The landlord lodged the bond under the name of a prospective tenant for the tenancy who while she had paid the bond money her situation changed, and she did not take up the tenancy. It was that person’s name that was given to the Bond Centre in error. Once the landlord became aware of the error it was rectified and the tenant’s name was provided to the Bond Centre.
On the evidence I do not consider that the tenant has been disadvantaged by the error although I accept that there was a period of confusion. An award against the landlord is not warranted in these circumstances. Quiet enjoyment
Emma Cooper-Williams 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 attended at the tenancy without notice and obtained the tenant’s health information without her consent or knowledge. 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.
On 21 May 2023 the landlord attended at the tenancy without notice. This was the day after the tenant had moved in. According to the tenant the landlord began discussing her health information including that she had cerebral palsy. He apparently said that he had asked the tenant’s mother why the tenant sometimes used a wheelchair.
An email from the tenant’s mother confirmed her recollection of the conversation being that the landlord said he noticed the tenant was in a wheelchair and wondered why.
When the tenant raised this with the landlord, he responded in an email which said, “We were so wiling to help you when we first realised you have some kind of handicap. I didn’t realise the full extent of the problem until I saw your wheelchair being offloaded when you moved in.”
In the email the landlord also said that the tenant’s health information is publicly available on her webpage and is therefore not private information. At the hearing the landlord’s agent said the landlord enquired about the tenant’s health information out of concern. He referred to a pathway which the landlord asked him to keep clear of plant growth for the tenant to have easy access in her wheelchair.
In relation to the landlord attending at the tenancy unannounced the landlord’s agent said that the tenancy is under the landlord’s home. This however is not a valid reason to attend at the tenancy unannounced.
The landlord intended to obtain the tenant’s health information without her knowledge or consent. While the landlord may consider that his reason for seeking this information was out of concern for the tenant the reality is that it is personal and private information. The tenant said she felt distressed, humiliated and her dignity was hurt by both the landlord obtaining the information and the follow up email in which he said she had “some kind of handicap”.
The tenant is entitled to live in a tenancy without unnecessary or intrusive contact from the landlord, even if he does live in the premises above the tenancy. It is not appropriate for the landlord to harass the tenant by obtaining her health information without her knowledge or consent. It is in the public interest for tenants to be able to live without such harassment.
I consider that it is reasonable for the tenant to be awarded $900.00 for this breach. Unlawful discrimination
Emma Cooper-Williams claims that the landlord discriminated against them.
A landlord must not discriminate against a tenant in relation to the grant, renewal, variation or termination of a tenancy, in contravention of the Human Rights Act 1999. See sections 12(1) and 109(3) Residential Tenancies Act 1986.
Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 12(1) and Schedule 1A Residential Tenancies Act 1986.
The landlord obtained the tenant’s health information without her consent and sent correspondence relating to her disability that the tenant found distressing and humiliating. While the landlord’s behaviour is likely to have amounted to discrimination it was not in relation to the grant, renewal, variation or termination of a tenancy. Therefore section 12(1) does not apply to this situation. However, I have taken account of the landlord’s behaviour in the award of a breach of quiet enjoyment.
The tenant’s claim in relation to unlawful discrimination is dismissed. Agent
The landlord’s agent acted on his behalf while the landlord was overseas. Section 16A(1) Residential Tenancies Act 1986 provides that a landlord who is out of New Zealand for longer than 21 consecutive days must ensure the landlord has an agent in New Zealand.
The landlord has complied with this requirement. The tenant was of the belief that she needed to receive documentation advising that there had been a change of landlord. But in these circumstances, it was not required.
The tenant’s claim in relation to the landlord’s agent is dismissed. Healthy Homes standards
The tenant claims that the landlord was in breach of the Healthy Homes standards.
The Healthy Homes compliance deadline for this property is 120 days after the commencement of the tenancy. The compliance date is therefore 17 September 2023.
On the tenancy agreement it states that the draught stopping had been assessed on 21 April 2023 and the property was free from unintentional and unreasonable gaps or holes. The landlord had obtained a Healthy Homes assessment which recorded that the premises complied with the standards.
The tenant did not agree with the assessment and obtained her own assessment which showed that the premises did not comply in relation to draughts. The tenant did not advise the landlord of this nor provide the landlord with a copy of the assessment.
If the landlord was aware of the non-compliance and took no steps, then there may have been merit in this claim. However, in a situation where the landlord has an assessment showing compliance, they are entitled to rely on it.
The tenant’s claim in relation to a breach of the Healthy Homes standards is dismissed.
Because Emma Cooper-Williams has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4617669 — Exemplary damages at Unit/Flat 1, 19 Cleve Road, Green Bay, Auckland 0604

At a glance

Tenancy Tribunal case 4617669 — Exemplary damages at Unit/Flat 1, 19 Cleve Road, Green Bay, Auckland 0604

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions