How much money was awarded in case 4648646?

Compensation: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4648646?

The dispute type was not classified.

Where can I read the official tribunal order for case 4648646?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9514866-Tenancy_Tribunal_Order.pdf.

How much money was awarded in case 4648646?

Compensation: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4648646?

The dispute type was not classified.

Where can I read the official tribunal order for case 4648646?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9514866-Tenancy_Tribunal_Order.pdf.

32 Checketts Avenue, Halswell, Christchurch 8025 Tenancy Tribunal Case 4648646 — Tenancy dispute

Q: What was the outcome of Tenancy Tribunal case 4648646?

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

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Order

Claims and awards in Tenancy Tribunal application 4648646 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for termination of tenancy without grounds	$1,500.00	Compensation for termination of tenancy without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.

Curtis & Co Real Estate Limited as agent for R Elkington must pay Frantisek Zuchnicky and Zuzana Cerna $1,520.44 immediately, as set out below:

The application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing. Mr Curtis represented the landlord.

The tenants have applied for compensation and exemplary damages for what they say was the termination of their tenancy without grounds. Background

The tenancy started on 22 October 2021.

During the tenancy drainage work was undertaken over a period of about 3 weeks and other repairs and maintenance were done.

The tenants repeatedly raised the issue of rotten weatherboards needing to be replaced.

The tenants’ final email querying when the work would be done is dated 10 May 2023. The landlord then issued a 90-day notice to terminate the tenancy on 11 May 2023.

The tenants found another tenancy and vacated this tenancy following which the weatherboards were repaired/replaced. The work took about 10 days.

The tenants had to pay a higher rent for the new premises they rented. The rent is higher by $185.00 per week.

Soon after the weatherboards were replaced the landlord rented these premises for a rent $100.00 more than these tenants paid. Issues

The issue the Tribunal must determine are: •Did the landlord terminate the tenancy without grounds? If so, should the

Tribunal award exemplary damages?

•Was the reason for terminating the tenancy a valid reason? If not, should the Tribunal award the tenants compensation? Did the landlord terminate the tenancy without grounds? If so, should the

Tribunal award exemplary damages?

Section 51(2)(f) of the Residential Tenancies Act 1986 (RTA) allows a landlord to terminate a periodic tenancy on 90 days’ notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be caried out by the landlord or the owner and it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken.

Mr Curtis said he carried out his own health and safety assessment having first spoken with a builder from whom he obtained a quote for the work. He formed the view that it would not be reasonably practicable for the tenants to remain in occupation while the work was undertaken.

The work comprised the removal of weatherboards from the front of the house only.

The section 51(2)(f) provision must be viewed objectively. Otherwise, any landlord could decide subjectively that a tenant could not remain in occupation while the work is undertaken. That would mean the decision to terminate would not be able to be challenged.

The quote Mr Curtis obtained from the builder (not accepted by the owner) does not address at all whether the tenants could remain in occupation.

Mr Curtis referred to drainage work undertaken at the premises. He said he did not consider there was any health and safety issue with that work, because it was outside work.

As the tenants (who are respectively a builder and an architectural draftsperson) noted, the drainage work went on for longer, involved a digger excavating drains, and resulted in open trenches. The replacement of the weatherboards was less intrusive and on the face of it posed less risk. It was also outside work.

I find that the landlord did not have reasonable grounds to terminate the tenancy based solely on Mr Curtis’ assessment and his discussions with the first builder who was asked to quote the job. The landlord should have at least consulted the tenants, who gave evidence that they were prepared to accommodate the work being done (something they had done with the drainage work).

So, the landlord terminated the tenancy without an objectively valid reason.

Section 60AA provides that a landlord commits an unlawful act if they give notice to terminate the tenancy knowing they are not entitled to do so.

When a party to a tenancy agreement commits an unlawful act, the Tribunal may award exemplary damages.

Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: 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.

Before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 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: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.

In this case I do not find that Mr Curtis acted with intent. In other words, he did not turn his mind to whether he was terminating the tenancy when he was not entitled to, and then deliberately set about to do so.

I find that Mr Curtis was negligent by not making further enquiries to determine (objectively) whether or not it would be reasonably practicable for the tenants to remain in occupation while the work was being done. But negligence is not sufficient to establish a claim for exemplary damages.

I therefore dismiss the tenants’ application for exemplary damages. Was the reason for terminating the tenancy a valid reason? If not, should the Tribunal award the tenants compensation?

I find that the reason for terminating the tenancy was not a valid reason. As I have noted, Mr Curtis’ own subjective assessment was not sufficient justification to end the tenancy. There is no objective evidence to support his view that the tenants could not remain in possession while the work was done.

I have recorded at paragraphs 16 and 17 points relevant to this issue as well.

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 inconvenience, a loss of enjoyment of the tenancy, stress, and anxiety.

In Birch the District Court confirmed that the Tribunal must take into account the following factors when deciding whether to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.

The tenants sought the difference in rent between their former tenancy (terminated wrongly) and their new tenancy, for a 1-year period. That amounts to $9,620.00. As well they sought compensation for their time and effort moving houses.

The tenants had the option of ignoring the notice to terminate the tenancy and applying to the Tribunal for a declaration as to its validity. Had they done so, the Tribunal would likely have set aside the notice to terminate.

A claim for the difference in rent is not therefore realistic.

However, ending a tenancy is a decision that has real consequences for a tenant, and should always be a decision made with care. Here, the landlord acted negligently, and the tenants suffered tangible and intangible losses. They wanted to remain in this tenancy but felt they were forced to move.

For the losses the tenants experience, both tangible and intangible, I award them compensation of $1,500.00. Result

The landlord will pay the tenants compensation of $1,500.00 for terminating their tenancy without an objectively valid reason. The landlord will also pay the filing fee of $20.44.

The application for exemplary damages is dismissed. Name suppression

Upon my enquiry, neither party sought a name suppression order.

Order

Claims and awards in Tenancy Tribunal application 4648646 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for termination of tenancy without grounds	$1,500.00	Compensation for termination of tenancy without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44