What was the outcome of Tenancy Tribunal case 4642550?

The tribunal order states: The Tribunal makes the following declarations:

How much money was awarded in case 4642550?

Lost Rent: $850.00 awarded to landlord

What type of tenancy dispute was case 4642550?

The primary dispute was Lost Rent.

Where can I read the official tribunal order for case 4642550?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11926460-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4642550?

The tribunal order states: The Tribunal makes the following declarations:

How much money was awarded in case 4642550?

Lost Rent: $850.00 awarded to landlord

What type of tenancy dispute was case 4642550?

The primary dispute was Lost Rent.

Where can I read the official tribunal order for case 4642550?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11926460-Tribunal_Order.pdf.

27/27A/31 Riverglade Drive, Tamahere, RD 3, Hamilton Tenancy Tribunal Case 4642550 — Lost Rent

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Order

Claims and awards in Tenancy Tribunal application 4642550. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
rental income received from the premises from 17 March 2022 d) Damages in the form of lost rental for the main house at	$850.00		rental income received from the premises from 17 March 2022 d) Damages in the form of lost rental for the main house at

The Tribunal makes the following declarations: a) All the property/premises including the cottage, main house, and flat referred to in the Licence to Occupy (LTO) dated 29 April 2021 are residential premises for the purposes of the Residential Tenancies Act 1986 (RTA). b) The LTO is a residential tenancy agreement to which the RTA applies. c) Mrs Keith is entitled to sublet any or all the houses, subject to the landlord’s consent (consent not to be unreasonably withheld) and to collect and keep the full gross rental. d) Mrs Keith’s tenancy is subject to the sub-tenancy of the flat already in existence as of 17 March 2022 (the date of Mr Keith’s death) with Mrs Keith having the benefit of that tenancy as sub-landlord. e) Mrs Keith as the tenant is not liable for the cost of repairs and maintenance including water damaged carpet in the flat and main house, the repair of a leaking tap and a crack in the shower in the main house. f)Mrs Keith as the tenant has no liability for rates or other general outgoings such as insurance despite the LTO stating that she does.

The tenant’s application for the following orders is dismissed: a) That the landlord Trust immediately provides Mrs Keith all tenancy agreements and rental records entered after 17 March 2022 by the trustees or by Waikato Real Estate together with evidence of the payments. b) That all rent collected in respect of the flat be paid to Mrs Keith (less any proper charges and deductions made). c) That Mrs Keith receive any other rental income received from the premises from 17 March 2022 d) Damages in the form of lost rental for the main house at the rate of $850.00 per week. e) Exemplary damages for the landlord demanding the tenant pay rates and other outgoings – a prohibited transaction. f)Compensation and /or exemplary damages for the landlord’s breaches of the tenant’s quiet enjoyment of the premises. g) Interest under the Interest on Money Claims Act 2016.

The Trustees’ application is dismissed.

Reasons

I heard these applications on 13 February 2025. Mr Keith attended as did Mr Hong for McCaw Lewis Trustees (No 2) Limited (ML). Mrs Keith, widow of the settlor of the Colin Keith Family Trust attended with her counsel Mr Piggin. I adjourned the hearing part-heard for counsel for the tenant to provide further submissions addressing the orders sought and for the respondent trustees to reply.

I received submissions and reply submissions according to the time table I set. The hearing was to conclude on 7 March 2025, but I extended the timetable for submissions and further evidence. The hearing concluded on 24 March 2025. Background

The hearing I held was by way of rehearing ordered by His Honour Judge Spiller dated 8 October 2024 1 .

The issue determined by the Court was whether an agreement between Mrs Keith and the trustees of the Colin Keith Family Trust (trust deed dated 8 June 2008) described as a LTO in respect of the property at 27/27A/31 Riverglade Drive, Tamahere, Hamilton owned by the Trust was a residential tenancy agreement under the RTA. The Court held that it was.

The issues raised by these applications go beyond the rights and obligations of the parties under the RTA. There are broader issues about the interpretation of the deed of trust itself and the Contracting Out agreement under the Property (Relationships) Act 1976 that Mr and Mrs Keith entered on 29 April 2021 the same day as the LTO was entered.

I began the hearing by noting these complexities. I invited submissions as to whether the Tribunal should transfer the applications to the District (or High) Court under sections 83(2) or 103 RTA. The parties preferred to remain within the Tribunal’s jurisdiction but accepted the limitations in terms of the orders the Tribunal can make on the facts.

The Tribunal has no jurisdiction to make orders in relation to the interpretation of deed of trust, nor the interpretation of the Contracting Out agreement. Its jurisdiction here is limited to the LTO which for the purposes of the RTA is the residential tenancy agreement. In ordering a rehearing, Judge Spiller has confirmed that the Tribunal has jurisdiction. Inherent in that finding is that there is a residential tenancy agreement between the parties. The orders sought by the tenant

The tenant seeks the following declarations: •That all the property/premises including the cottage, main house, and flat referred to in the LTO dated 29 April 2021 are residential premises. •The LTO is a residential tenancy agreement to which the RTA applies. 1 see Elaine Cheryl Keith v McCaw Lewis Trustees (no 2) Limited and Mark Anthony Keith, as trustees of the Colin Keith Family Trust, and Mark Keith [2024] NZCS 24220 •That Mrs Keith is entitled to sublet any or all the houses, subject to the landlord’s consent (consent not to be unreasonably withheld) and to collect and keep the full gross rental. •That Mrs Keith’s tenancy is subject to the sub-tenancy of the flat already in existence as of 17 March 2022 (the date of Mr Keith’s death) with Mrs Keith having the benefit of that tenancy as sub-landlord. •That Mrs Keith as tenant is not liable for the cost of repairs and maintenance including water damaged carpet in the flat and main house, the repair of a leaking tap and a crack in the shower in the main house. •A declaration that the tenant has no liability for rates or other general outgoings.

The tenant seeks the following orders: •That the landlord immediately provides Mrs Keith all tenancy agreements and rental records entered after 17 March 2022 by the trustees or by Waikato Real Estate together with evidence of the payments. •That all rent collected in respect of the flat be paid to Mrs Keith (less any proper charges and deductions made). •Any other rental income received from the premises from 17 March 2022. •Damages in the form of lost rental for the main house at the rate of $850.00 per week. •Exemplary damages for the landlord demanding the tenant pay rates and other outgoings – a prohibited transaction. •Compensation and /or exemplary damages for the landlord’s breaches of the tenant’s quiet enjoyment of the premises. •Interest under the Interest on Money Claims Act 2016. •Costs.

After the hearing both parties provided further evidence and submissions. I have considered everything placed before the Tribunal even if I do not specifically refer to it. Relevant legal considerations

The following sections of the RTA are directly applicable 45 Landlord’s responsibilities (1) The landlord shall— (a) provide the premises in a reasonable state of cleanliness; and (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and (ba) comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A; and (bb) comply with the healthy homes standards; and (bc) [Repealed] (bd) comply with all requirements in respect of contaminants imposed on the landlord by regulations made under section 138C(3)(c); and (c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and (d) if the premises do not have a reticulated water supply, provide adequate means for the collection and storage of water; and (e) compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where— (i) the state of disrepair has arisen otherwise than as a result of a breach of the tenancy agreement by the tenant and is likely to cause injury to persons or property or is otherwise serious and urgent; and (ii) the tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so; and (f) take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. 40 Tenant’s responsibilities (1) The tenant shall— (a) pay the rent as and when it is due and payable under the tenancy agreement; and (b) ensure that the premises are occupied principally for residential purposes; and (c) keep the premises reasonably clean and reasonably tidy; and (ca) comply with all requirements in respect of smoke alarms imposed on the tenant by regulations made under section 138A; and (d) notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs; and (e) on the termination of the tenancy,— (i) quit the premises; and (ii) remove all his or her goods from the premises; and (iii) leave the premises in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish; and (iv) return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for the use of the tenant; and (v) leave in or at the premises all other chattels provided by the landlord for the use of the tenant. (2) The tenant shall not— (a) intentionally or carelessly damage, or permit any other person to damage, the premises; or (ab) cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004; or (b) use the premises, or permit the premises to be used, for any unlawful purpose; or (c) cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood. (3) Where the tenancy agreement specifies a maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant shall ensure that no more than that number ordinarily reside in the premises at any time during the tenancy.

Section 85 RTA is important in this case for reasons I will explain. So, I will set it out in full: 85 Manner in which jurisdiction is to be exercised (1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. Compensation and exemplary damages

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord 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 and the accompanying stress and anxiety.

In Birch v Otautahi Community Housing Trust 2 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: 2 [2020] NZDC 17667 • 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. Other considerations

When the Tribunal makes decisions, it is charged with a significant responsibility. The decisions it makes affect people’s lives directly both financially and emotionally.

While the Tribunal is principally guided by case law, it can look more widely for guidance on principles relevant to the decision-making process. Important too is that the Tribunal is not a de facto Court of general civil jurisdiction. It has its own jurisprudence.

In 2024, Patrick Girard (now Associate Professor Girard) published his book Logic in the Wild. 3 He explains how logic informs reasoning across science, religion, and, for the present purposes, law. He explains how logic applies to address (and resolve) conflict in thought and action.

Work such as his is important because it can guide decision makers towards making just and fair decisions. He explains a form of logic known as ceteris parabus logic. Ceteris parabus means ‘all things being equal’.

In the matters before me, the tenant’s submissions are based on this kind of logic. Her argument goes something like this. The RTA provides sanctions for certain actions by a landlord. The landlord committed those actions against her as a tenant. Therefore, the landlord (the trustees of the Trust) should be sanctioned.

While logical, the enquiry is not that simple. What if all things are not equal? What if there are other relevant considerations that disrupt that kind of logical analysis?

The RTA recognises that this kind of logic might not always lead to a just outcome. That is why I set out section 85 RTA in full. That section directs the Tribunal to consider the substantive merits and justice of the case, to ensure the fair resolution of the dispute. Discussion

As I observed at the hearing, this case involves competing claims (and emotions) as between the late Mr Keith’s widow and his son, each of whom has suffered a bereavement, but each of whom has separate interests.

Although ML has been and are a trustee up to the date of the hearing, Mr Hong informed me that Mr Keith had agreed to the company retiring as a trustee and intended to sign the necessary documents to give effect to the retirement of the company as co-trustee on the day of the hearing.

This order has named both ML and Mr Keith as trustees to reflect the legal position as at the date of hearing. Probably (if the deed recording the retirement of ML as trustee has been signed as was suggested) the order will have little or no effect on ML as trustee. But it must be and is included as a party.

The landlord’s cross application cannot succeed. Mr Hong confirmed that ML as trustee did not support or agree with the application. Mr Keith accepts that he cannot act alone when there are joint trustees. He noted that the issues he 3 McGill-Queen’s University Press. wanted addressed would essentially be addressed by the Tribunal’s finding on the tenant’s application. I agree with that.

For completeness, I dismiss the landlord’s application for orders against Mrs Keith.

So then, what of Mrs Keith’s application as a tenant under the LTO that the District Court has determined is a residential tenancy agreement between her as tenant and the trustees of the Trust as landlord?

The only orders that the Tribunal can, or will, make are by way of the declarations Mrs Keith seeks, though one is restricted. That is the declaration that Mrs Keith’s tenancy is subject to the sub-tenancy of the flat already in existence as of 17 March 2022 (the date of Mr Keith’s death) with Mrs Keith having the benefit of that tenancy as sub-landlord. While Mrs Keith will have the benefit of that tenancy as sub-landlord (as the LTO provides) for reasons described below, the Tribunal is not prepared to make a retrospective order.

The declarations are that: •All the property/premises including the cottage, main house, and flat referred to in the LTO dated 29 April 2021 are residential premises. Why? Because that is the effect of Judge Spiller’s order. •The LTO is a residential tenancy agreement to which the RTA applies. Why? Because Judge Spiller has found that is the case. •Mrs Keith is entitled to sublet any or all the houses, subject to the landlord’s consent (consent not to be unreasonably withheld) and to collect and keep the full gross rental. Why? Because that is what the LTO says should happen. •Mrs Keith’s tenancy is subject to the sub-tenancy of the flat already in existence as of 17 March 2022 (the date of Mr Keith’s death) with Mrs Keith having the benefit of that tenancy as sub-landlord. Why? Because that is what the LTO provides for. But no account of retrospective rent or profits is ordered. •Mrs Keith as the tenant is not liable for the cost of repairs and maintenance including water damaged carpet in the flat and main house, the repair of a leaking tap and a crack in the shower in the main house. Why? Because those are landlord responsibilities under section 45 RTA. Landlords cannot contract out of their RTA responsibilities. •Mrs Keith as the tenant has no liability for rates or other general outgoings. Why? Because those are not tenant liabilities under the RTA for a residential tenancy. Landlords cannot impose obligations on tenants that are not permitted by the RTA.

The Tribunal will not make the substantive orders sought – an account of profits for rent from and after 17 March 2022; any other rental income; damages in the form of lost rental; and interest. Why? Because in the overall context of this trust/relationship property dispute it would be unjust to do so considering the section 85 RTA directives and probably beyond the Tribunal’s jurisdiction.

If the tenant wanted orders of that nature, she could have made an application to a Court of general (or specific) jurisdiction. By choosing to remain within this Tribunal’s jurisdiction she is limited in the kind of relief she can reasonably claim. I was careful to clarify that with counsel at the start of the hearing. I offered to transfer the proceedings to the District (or High) Courts. The offer was declined.

Because of the unclear nature of the relationship between the Trust and Mrs Keith, who is both tenant and sub-landlord (she having the right to sublet the premises and enjoy the income she receives), retrospective orders would offend the section 85 RTA directives. The legal status of the parties for the purposes of the RTA was not immediately clear. The Tribunal first declined jurisdiction. It required an appeal before the status of the parties was determined.

In terms of the application for exemplary damages, the Tribunal could not find that the landlord (the Trustees) turned their minds to committing unlawful acts and deliberately set about to commit those acts (as referred to in Birch). Nor does it find compensable breaches of quiet enjoyment in this case. The overall context and the relationships involved must be considered.

The Tribunal’s declarations therefore clarify the position of the parties and will apply from now on. Mrs Keith is a tenant of the Trust, and the trustee(s) can set the rents (which must not exceed market rents) she must pay for all the residential premises on the property. She then may rent the premises in her capacity as sub-landlord. And just as she as a tenant can look to the trustee(s) of the Trust to fulfil their landlord responsibilities under section 45 RTA, so too can her sub-tenants look to her as their landlord to fulfil her responsibilities under that section as well. Result

The application for declarations as to the rights and responsibilities of the parties is successful.

The orders sought by the tenant (as distinct from the declarations) are dismissed.

The landlord (Trustees’) application is dismissed. Costs

The Tribunal’s preliminary view is that costs should lie where they fall in this case. However, if costs are pursued, I will provide a timetable for submissions on application. Comment

This decision does not advance the position of the parties greatly, but it clarifies their relationships as landlord/tenant and sub-landlord/sub-tenant under the RTA. Essentially, the broader issues remain.

What was the intention of the settlor Mr Keith when he settled the Trust. How did he want his widow’s financial position to be guaranteed? In that aspects of the LTO conflict with the provisions of the RTA how does that conflict get resolved taking the settlor’s intentions into account?

The Tribunal cannot decide those matters. Unless, the parties can find a way ahead, which will require co-operation and sensible compromise, it is likely that an application to the High Court in its equitable jurisdiction will be inevitable, or that some other outcome will eventuate.

Order

Claims and awards in Tenancy Tribunal application 4642550. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
rental income received from the premises from 17 March 2022 d) Damages in the form of lost rental for the main house at	$850.00		rental income received from the premises from 17 March 2022 d) Damages in the form of lost rental for the main house at

The Trustees’ application is dismissed.

Reasons

The hearing I held was by way of rehearing ordered by His Honour Judge Spiller dated 8 October 2024 1 .

Exemplary damages are different. They are designed to punish and to deter. They are like a fine.

When the Tribunal makes decisions, it is charged with a significant responsibility. The decisions it makes affect people’s lives directly both financially and emotionally.

While logical, the enquiry is not that simple. What if all things are not equal? What if there are other relevant considerations that disrupt that kind of logical analysis?

For completeness, I dismiss the landlord’s application for orders against Mrs Keith.

The application for declarations as to the rights and responsibilities of the parties is successful.

The orders sought by the tenant (as distinct from the declarations) are dismissed.

The landlord (Trustees’) application is dismissed. Costs

The Tribunal’s preliminary view is that costs should lie where they fall in this case. However, if costs are pursued, I will provide a timetable for submissions on application. Comment

Tenancy Tribunal case 4642550 — Lost Rent at 27/27A/31 Riverglade Drive, Tamahere, RD 3, Hamilton

At a glance

Tenancy Tribunal case 4642550 — Lost Rent at 27/27A/31 Riverglade Drive, Tamahere, RD 3, Hamilton

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions