What was the outcome of Tenancy Tribunal case 4667530?

The tribunal order states: Jean Gibson must pay John Winder $177.53 immediately, calculated as shown

How much money was awarded in case 4667530?

Electricity Charges: $1,082.17 awarded to landlord; Electricity Charges: $556.21 awarded to landlord; Electricity Overpayment: $315.91 awarded to tenant; Property Damage: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4667530?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4667530?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10163042-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4667530?

The tribunal order states: Jean Gibson must pay John Winder $177.53 immediately, calculated as shown

How much money was awarded in case 4667530?

Electricity Charges: $1,082.17 awarded to landlord; Electricity Charges: $556.21 awarded to landlord; Electricity Overpayment: $315.91 awarded to tenant; Property Damage: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4667530?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4667530?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10163042-Tribunal_Order.pdf.

5A Swann Road, Cromwell, RD 2, Cromwell 9384 Tenancy Tribunal Case 4667530 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4667530 — net $177.53 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Electricity charges	$1,082.17		Electricity charges
Electricity charges	$556.21		Electricity charges
Exemplary damages		$1,500.00	Exemplary damages
Electricity overpayment		$315.91	Electricity overpayment
Total award	$1,638.38	$1,815.91
Net award		$177.53
Total payable by Landlord to Tenant		$177.53

Claims and awards in Tenancy Tribunal application 4667530 — net $177.53 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Electricity charges	$1,082.17		Electricity charges
Electricity charges	$556.21		Electricity charges
Exemplary damages		$1,500.00	Exemplary damages
Electricity overpayment		$315.91	Electricity overpayment
Total award	$1,638.38	$1,815.91
Net award		$177.53
Total payable by Landlord to Tenant		$177.53

Order

Jean Gibson must pay John Winder $177.53 immediately, calculated as shown in table below:

Reasons

Both parties attended this hearing on 21 March 2024. The tenant appeared in person and the landlord by teleconference.
An interim order relating to TT 4630573 was made by the Tribunal on 3 January 2024. That was an application by the tenant seeking a declaration that a notice of termination of the tenancy dated 14 July 2023 was invalid and for exemplary damages. Those applications were dismissed. The tenancy was ended by order of the Tribunal on 26 January 2024.
The tenant subsequently filed an appeal against the order. That application has now been withdrawn by the tenant.
All other remaining tenant claims from both TT4667530 and TT4630573 were adjourned to be heard at a later date and are the subject of this current order.
The documentary evidence supplied by the parties was extensive and exceeded 1,000 pages. Unfortunately, despite the Tribunal’s best efforts, the evidence was often presented in a disjointed manner, making it difficult to comprehend. General Law
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the tenant must establish that what they are claiming is more likely than not.
The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, both parties have submitted documentary evidence including emails, photos and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found the parties to this hearing to be diligent and honest people. I have absolutely no doubt that all parties came to the hearing with a genuine desire to provide their evidence in a truthful manner. The parties expressed strong feelings of disappointment and stress with how things evolved prior to and during the course of the tenancy. Tenant Claims Failure to provide a tenancy agreement.
The tenancy commenced on 1 August 2021.
The parties entered into a tenancy agreement, with all parties having signed the agreement prior to 1 August 2021. This was a fixed-term tenancy for the period from 1 August 2021 to 31 July 2022 (“the first tenancy agreement”).
The tenant does not dispute that the first tenancy agreement was prepared and executed prior to the commencement of the tenancy.
A second tenancy agreement was executed by the parties (“the second tenancy agreement”). But for an increase in the rent, the second tenancy agreement was on identical terms to the first tenancy agreement. The landlord used a copy of the first tenancy agreement, with handwritten amendments to the dates and rental amounts, as the second tenancy agreement.
The second tenancy agreement was also for a fixed-term from 1 August 2022 to 31 July 2023.
The copy of the second tenancy agreement provided in evidence, shows that the parties have signed it on various dates. As best as I can ascertain, the tenant signed it on 1 August 2022, the landlord, Jean Gibson signed it on 29 July 2022 and the solicitors for the landlord’s family trust, sometime later on 1 September 2022.
The tenant says that as a result, the landlord has breached s.13(2) RTA.
Section 13(2) RTA provides that a landlord must, before the tenancy commences, sign the tenancy agreement and provide a copy to the tenant (whether the tenant has signed it or not). Section 13(4) RTA provides that a landlord will have committed an unlawful act and be subject to exemplary damages where a breach of s.13(2) RTA has occurred.
The landlord says that a copy of the second tenancy agreement, which had been signed by the tenant and Jean Gibson, had been sent to her solicitor for execution. The document was not signed by the solicitor and returned until after 1 September 2022.
The tenant says that the delay in returning the second tenancy agreement to him caused him a degree of anxiety and stress as he did not feel that he had any rights during that period. Analysis.
The first tenancy agreement was a fixed-term agreement ending on 31 July 2022.
Section 60A RTA provides that on the expiry of a fixed-term tenancy of more than 90 days, the tenancy continues as a periodic tenancy with the same terms as the terms contained in the expired tenancy, as far as those terms are consistent with a periodic tenancy.
The continuation as a periodic tenancy referred to in s.60A RTA will not occur if before the expiry, the parties; • Renew or extend the existing agreement. • Agree not to continue with the tenancy. • The tenant gives at least 28 days’ notice to the landlord of their intention not to continue with the tenancy. • Either party gives notice in accordance with s.50(1)(a) to (b)

RTA

None of the exclusions contained in s.60A(2) RTA apply.
A tenancy agreement must be signed by the landlord party prior to the commencement date of a tenancy (see s.13(2) RTA).
The accepted evidence shows that the second tenancy agreement was not finalised (by the signing of the solicitors) until 1 September 2023, a month after the end of the first tenancy agreement.
Section 60A RTA provides that in those circumstances, the agreement reverts to a periodic tenancy. I find that during the period from 1 August 2023 until 1 September 2023, neither party having sought to terminate the tenancy, this was a periodic tenancy.
Upon final execution by the landlord of the second-fixed term tenancy, the periodic tenancy became a fixed-term tenancy lasting through until 31 July 2023.
The tenant claim is dismissed as there was at all relevant times an existing tenancy agreement. A tenancy agreement will not be unenforceable simply because it is not in writing (see s.13C RTA). Validity of tenancy agreement clauses
The premises are in a rural area.
The tenanted premises are surrounded by the landlord’s farm property with a shared driveway.
The tenancy agreements entered into by the parties are a standard form Tenancy Services tenancy agreement, the standard terms of which are not notable. The tenancy agreements do contain four extra pages entitled “Note of Intention” (“the extra pages”) which have been added by the landlord.
The extra pages contain clauses which could best be described as an attempt to invoke conditions that relate specifically to the rural nature of the property.
The extra pages essentially provide as follows; The tenant cannot complain about rural seasonal activities which may cause noise, dust, traffic movement, pest control and machinery noise (amongst others). No activities may be carried out which could affect the neighbouring vineyard. Limit noise late at night or early in the morning. No fireworks, firearms or drones. Visiting dogs may only be on the property on a leash and with the explicit approval of the landlord. Dogs must be in a current sheep measles dosing programme. The tenant will not be notified of rabbit poisoning operations, including bait laying. General farm etiquette is expected with regards to closing gates, notifying of any fence damage, water and irrigation leaks, reporting people or stock in danger. Cats are allowed unless they catch/ kill native birds, in which case they will need to wear a bell on a collar. Dogs on premises with tenant guests must be on a leash and only with permission of the landlord. If poison bait has been laid no dogs are permitted unless expressly provided for by the landlord. Visitors staying in a camper van or similar are only permitted by written permission of the landlord and are permitted for a short stay only, the length of time approved by the landlord. No business activity permitted including delivery of equipment or stock. No garage sales. No loud noise after 10 pm and no loud parties. Only minor items to be delivered to the tenant, most of which will be to the mailbox. Drone use- limited to short practice flights, not high enough to cause concern to the landlord or neighbours, when other people’s privacy will be interrupted or near horses and stock. The operator to comply with aviation regulations. The permission for drone use is at the discretion of the landlord and is subject to review. Firearms use to comply with the New Zealand firearms code for safe use and storage.
The landlord’s view was that the clauses were all entirely appropriate for a tenancy in a rural environment. Analysis
Section 13A RTA sets out the minimum terms required in a tenancy agreement.
Section 11 RTA is also relevant in this enquiry. That section generally provides that the RTA will apply to any tenancy agreement, despite provisions in the tenancy agreement which may be contrary to the RTA. Any purported waiver by a tenant of any right or power conferred upon tenant by the RTA shall have no effect.
The tenancy agreements clearly provide for greater limits on the tenant’s responsibilities as are set out in s.40 RTA.
It is not simply a matter of striking down these clauses. Section 11(1)(a) RTA states that the Tribunal shall exclude the provisions contrary to the RTA unless “the Tribunal is satisfied that having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties and all other relevant circumstances of the case, the inconsistency, exclusion, modification or restriction should be permitted.”
Examples of this can be found in Schmid v Murray North Shore TT 181/91, where the Tribunal held that a landlord’s construction work in breach of the tenant’s quiet enjoyment was allowed, where a tenant had enough information to consent to construction work by a landlord. In Morrison v Public Trust Office Auckland TT 1928/94, an agreement for a tenant to clean the premises in return for a rent reduction was allowed, even though a waiver of tenant’s rights because the agreement was fair.
In deciding if the extra clauses are invalid, I must consider; ▪ The nature of the tenancy. ▪ The provisions of the agreement. ▪ The interests of the parties. ▪ All other relevant circumstances. ▪ And whether the inconsistency exclusion, modification should be permitted.
This is a tenancy in a rural area. The inherent dangers and requirements in a rural area, will be different to those which may apply in an urban setting. Limitations in a rural setting which may seem obvious to anyone residing in a rural setting (i.e., the importance of closing gates), may not be appropriate in an urban tenancy agreement.
Limitations in the agreement which are for the safety of either landlord, tenant or stock should in my view be permitted as they are in the best interest of all parties. Limitations which go beyond the safety aspect require further consideration.
Clauses which allow for the interference with the tenant’s quiet enjoyment as a result of common and standard farming practices can also be permitted. The tenant was aware prior to entering into the agreement, that he was going to be living in a rural environment surrounded by working farms and lifestyle blocks. Farming operations such as stock movement and rabbit poisoning are an inevitable part of living in the country. Similarly, protecting visiting dogs by having them remain on a leash would be for the protection of the dog, preventing them from consuming poisoned bait and also stock that may be chased by the dog.
Other extra clauses take matters further and go beyond the need to protect the landlord and the farming operation. In particular, I consider that clauses which limit the following impinge on the tenant’s quiet enjoyment and the Tribunal declares that they should not be permitted. • No loud noise early in the morning or late at night. • Obligation to notify of any fence damage, water and irrigation leaks, reporting people or stock in danger. • Cats being allowed unless they catch/ kill native birds, in which case they will need to wear a bell on a collar. • Visitors staying in a camper van or similar only being permitted by written permission of the landlord and permitted for a short stay only, the length of time approved by the landlord. • No business activity permitted including delivery of equipment or stock. • No garage sales. • No loud noise after 10 pm and no loud parties. • Only minor items to be delivered to the tenant, most of which will be to the mailbox.
One clause which particularly concerned the tenant related to visitors. The clause states; Visitors- it is expected that anyone staying overnight on the property other than in the premises will be at the landlord’s discretion....”
The tenant considered that this clause limited his ability, as an adult to have visitors stay in his home overnight.
My interpretation of the clause is twofold. First, the tenant is not limited by the clause in having visitors stay overnight if they stay within the building. The tenant has misinterpreted the clause as being a blanket ban on visitors staying overnight. Secondly, the requirement that the tenant obtain landlord approval for overnight visitors, who are not staying within the premises (i.e., in a campervan or tent) is not a limitation which relates to safety or working farm requirements. That limitation is not consistent with the RTA, nor the interests of the tenant and the Tribunal declares that it is not permitted.
As long as the premises are principally used for residential purposes (see s.40(1)(b) RTA), the clauses removing the right to carry out business activity, including delivery of equipment or stock or deliveries, do not comply with the RTA. They do not relate to safety or farming operations. The tenant may have wished to carry out some business activity from inside the premises. The limitation is inconsistent with the RTA, is not related to safety or farming duties and is not in the interests of the tenant. The Tribunal declares that the clause is not permitted.
Clauses relating to parties, loud noises and garage sales are not permitted except where they may breach s.40(2)(c) RTA, where they may cause interference with the reasonable peace, comfort or privacy of any other person residing in the neighbourhood. To simply rule them out in all and any circumstances is not consistent with the RTA, nor the interests of the tenant and the Tribunal declares that the clause is not permitted. Harassment
The tenant seeks exemplary damages for alleged harassment on the part of the landlord. The harassment is intertwined with the claims relating to the extra clauses in the tenancy agreements referred to above
Section 38 of the RTA confirms that the tenant “shall be entitled to have quite enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that 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.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust.” The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation.” Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them.
In this case, the tenant submits that the landlord has harassed him as a result of the actions referred to below.
The tenant says that the landlord was on the grounds surrounding the house on an almost daily basis carrying out planting and watering plants. Sometimes, the landlord would give the tenant notice of her intention to be at the site and sometimes not. The tenant complained of this imposition to the landlord frequently. He specifically asked the landlord not to come in the evenings during spring and weekends as her presence interfered with his enjoyment of the premises and his privacy.
The landlord denied going to the premises on an almost daily basis. She said that she was there for a day at the weekend and there may have been a single week where she may have been there for two or three days. During spring and autumn, she accepted that she may have been there twice a week but generally not at all in winter and summer. The landlord denied ever having been asked to leave by the tenant.
Section 48 RTA provides that a landlord shall not enter the premises except with the consent of the tenant or in the circumstances described in s.48 (2) and (3) RTA. The definition of “premises” in this section does not include land or facilities.
The rules around entry apply only to the premises and a landlord does not have to give notice of entry to land. That does not give the landlord an ability to enter the premises at all times as and when they may wish. The Tribunal held in Cavanagh v Leung Christchurch TT, TT4090276 12 September 2017 that entering unannounced and without considering whether the entry might be inconvenient to tenants and the frequency of the visits and the time spent at the premises was a breach of the tenant’s right to quiet enjoyment.
The parties have provided conflicting evidence on the point. As is often the way, I consider that the reality of the situation is more likely than not to fall somewhere between the versions. I consider that the tenant is someone prone to anxiety and that any visits from the landlord would have caused him distress. It is more likely than not that the landlord did visit to carry out planting and watering frequently and that this was a pattern of behaviour likely to cause significant interference with the tenant’s peace, comfort and privacy.
I accept the evidence of the tenant that he has asked the landlord not to come onto the premises that form part of the tenancy property, in particular, at the weekends and spring evenings when he wished to sit outside and enjoy the setting. Despite this, the landlord continued to visit frequently and it is the frequency of the visits that I consider amounts to harassment.
Finding as I do that the landlord has harassed the tenant, I find that the landlord has acted unlawfully. Guests
The tenant said that his quiet enjoyment of the premises was breached by the landlord refusing to allow the tenant to have guests. I have already found that the tenancy agreement did not prevent the tenant from having guests stay at the premises. The extensive evidence from the tenant that he thought this was a term of the tenancy agreement and how it made him feel, does not alter the reality.
The issue before me is whether the requirement for the landlord’s permission for any visitors who may stay in a caravan, campervan or the like was a breach. In this issue, I prefer the evidence of the tenant. The tenant did not provide any evidence of any specific occasion when he had intended to have guests stay outside the premises. Having said that, the tenant said that he lived in fear of the tenancy being terminated due to any breach by him and so no one was invited. Email correspondence from the landlord to the tenant dated 15 August 2020 states “...we definitely don’t want to invite additional random people coming and going form the property. It would mean we would have to start locking our properties and our cars etc.”
I find that the clause resulted in an ongoing breach of the tenant’s quiet enjoyment amounting to harassment as the term is defined. There was no legitimate purpose served by the clause. The tenant was entitled to invite such people as he may wish to the premises.
In the circumstances as outlined, I consider that the landlord has acted unlawfully.
I must now consider whether exemplary damages can be ordered for the harassment caused by the landlord’s going onto the premises that form part of the tenancy property and denying the tenant the ability to have guests stay outside.
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.
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.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule RTA, which for a breach of section 38, is $3,000.00.
Taking the s.109 RTA factors into consideration, I conclude:
I consider that the landlord’s activity was intentional. The tenant complained of it and the landlord continued. I consider the landlord is likely to have been aware that the frequent attendances were causing discomfort for the tenant.
The effect of the unlawful act has been to reduce the tenant’s enjoyment of the premises and privacy.
The interest of this tenant and the public interest is for there to be a balance between the landlord’s right to enter the land for legitimate purposes with the frequency of those visits and their effect on the tenant.
I am not aware of any previous breaches by this landlord relating to other tenancies. As a “rule of thumb” damages awards of one third of the maximum are generally considered appropriate in the absence of any mitigating or aggravating factors. The aggravating factor in this case is that there has been more than one breach. The landlord is ordered to pay exemplary damages of $1,500.00 to the tenant, being half of the maximum award available. Gates, cattle stop and sunshade.
The tenant said that he thought that a cattle stop was going to be installed by the landlord. The failure to install the cattle stop resulted in the tenant having to open and close gates whenever he entered or left the premises.
The landlord agreed in her evidence that she had wanted to install a cattle gate, but that she had not done so during the course of the tenancy. The requirement that the gates be kept closed is a term of the tenancy agreement. There is no requirement that a landlord must install a cattle stop in the RTA or any related legislation. There has been no breach of the tenant’s quiet enjoyment in requiring him to open and close gates, nor can I see that the tenant has incurred any loss. The tenant application is dismissed.
Similarly, the tenant has complained that the landlord has failed to install an appropriate sunshade for the house. The planting complained of by the tenant was the landlord’s preliminary attempt to provide natural shading for the building. It may be some years before the plants provide any adequate shade.
There is no requirement that a landlord must provide shade in the RTA or any related legislation. The landlord did install an “Archgola” in December 2022. There has been no breach of the tenant’s quiet enjoyment in her failure to provide shade to the premises. The tenant application is dismissed.
The tenant has also claimed compensation for work carried out in erecting a temporary shade sail. John Winder Limited has invoiced the landlord by invoice dated 19 August 2023, for the erection of a temporary shade sail. The invoice is for $3,450.00 (incl GST). The invoice is from a separate entity to the tenant and is not a residential tenancy issue. The tenant may wish to have this claim dealt with in another jurisdiction. Drone
The tenant says that the tenancy agreements denied him the right to fly his drone, except in the very limited circumstances set out in the tenancy agreements.
The tenant’s evidence was that he only used the drone infrequently. On one occasion a documentary maker came to the premises to conduct an interview with the tenant. During the course of that interview, a drone was flown over both the tenant land and that of the landlord. The purpose of the flight was to record film of the tenant’s tiny house and the surrounds. At this time, the tenant operated a business building and designing tiny houses.
The tenant’s evidence was that he had spoken to civil aviation authorities and they had said that he could fly the drone over the land occupied by him, which would include the shared driveway.
The landlord’s evidence on this issue was that there had been a history of drone use by the tenant frightening stock. She was also concerned that the video recorded by the drone by the documentary maker included film of her farm.
I am not persuaded that any film which included shots from the air partly showing the landlord’s farm, were in any way a breach of the landlord’s privacy. As long as the tenant was abiding by civil aviation rules and was flying over his own premises or the shared driveway, I can see no basis for the clause denying the tenant the ability to fly his drone.
I find that the clause resulted in an ongoing breach of the tenant’s quiet enjoyment. I do not think that it amounted to harassment as that term is defined. In my view, the landlord has overreached the tenancy agreement clause relating to drone use but did not intend to cause distress by her actions. That does not amount to harassment and the application is dismissed. Subletting
The tenant said that he was unable to sublet the premises except in limited circumstances. The RTA provides that a landlord may expressly and unconditionally prohibit the tenant from subletting the premises (see.s.44(1) RTA). That section goes onto allow subletting in accordance with any conditions attached to that consent, as long as the conditions are not unreasonable. The conditions included in the tenancy agreement are that subletting can occur; • With prior approval of the landlord; and • For the purpose of minding the premises and caring for pets in the case of an extended holiday or sickness. • Any person staying must comply with the conditions of the tenancy.
Given the starting point that a landlord is entitled to expressly and unconditionally prohibit subletting, I do not consider that the tenant has proven that it is more likely than not that the landlord conditions allowing for subletting are unreasonable. The tenant application is dismissed. Sensor
The tenant says that his quiet enjoyment has been breached by the owner having a sensor which indicates movement of vehicles on the shared driveway.
The landlord’s evidence was that the sensor had not been working for a number of years. When it did operate, it simply recorded that the sensor light had been “broken” by a vehicle (and occasionally horses).
No evidence was provided to show that the sensor was operational during the tenancy and accordingly the application is dismissed. Facebook
The tenant says that his quiet enjoyment had been breached by the landlord viewing his Facebook platform. The landlord said that she had been told of the photos on the tenants Facebook site by neighbours. The photos included photos of her premises.
Facebook is with some exceptions, a “public” site. Page owners have the ability to limit the items being seen by other users. That the landlord was able to access the tenant’s Facebook page indicates to me that the information seen was not “private” and was available to be seen by any member of the public. In these circumstances, I do not consider that there has been a breach of the tenant’s quiet enjoyment. Failure to maintain.
Section 45 RTA sets out the landlord’s responsibilities, and that includes a responsibility to maintain the premises. A breach of the section renders the landlord potentially liable for exemplary damages.
The tenant says that at the commencement of the tenancy, the area around the tenanted premises consisted of thick mud. The landlord was told and her response was that the tenant should wear gumboots.
The tenant suggested to the landlord that gravel be installed to mitigate the problem. The landlord response was “if you want it, you do it, but I’m not paying for it.”
A small amount of gravel was placed, which the landlord paid for. The tenant subsequently invoiced the landlord for the work carried out at a later date at the end of the tenancy.
Section 45 RTA requires the landlord to maintain the premises in a reasonable state of repair having regard to the age and character of the premises. The obligation on the landlord to maintain is not absolute. The tenant needs to notify the landlord of the issue as soon as is possible. A landlord then has a reasonable time to complete the repair.
The obligation to repair applies even if the tenant has notice of the state of the premises when entering into the tenancy agreement. In these circumstances, the normal course of action would be for a tenant to give the landlord a 14-day notice to remedy, however that is not necessary of the landlord knew of the need for repair or the need for repair would be apparent from simple observation.
I consider that the surrounds to the premises were not in a reasonable state at the commencement of the tenancy due to the mud. The condition would have been apparent to the landlord from observation.
The landlord relied on clause 6 of the tenancy agreements which provides in part, that any maintenance work is to either be done by the landlord at their cost or by the tenant with prior written approval from the landlord. Quotes and estimates were to be provided to the landlord in the case of work undertaken by the tenant. The nature of the work was to include “landscaping, roading, fencing etc.”
A landlord is not in general required to pay for repairs carried out by a tenant without landlord approval. However, a landlord must compensate a tenant for reasonable expenses incurred in repairing the premises where disrepair has not been caused from a tenant 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 the tenant has given the landlord notice of the disrepair.
The landlord evidence was that she was charged $784.53 for gravel in May 2022 and that despite the tenant saying that he would pay for it, she paid for it.
I accept that there was mud surrounding the premises at the commencement of the tenancy. The landlord was told of the problem by the tenant. Was the issue sufficiently serious so as to be likely to cause injury to person or property or otherwise be serious and urgent? No evidence of any likely injury or damage was provided by the tenant. It was no doubt frustrating and unsightly, but that is not what is required to prove a breach. The claim is dismissed.
Further work on the driveway was carried out by the tenant in May 2023. The landlord says that this work was not prearranged with her and that she was not going to pay for it. She says that when she told the tenant, he said that the work had been prearranged with her the previous year and that this was simply completion of that work. The landlord went on to say that in 2023, she agreed that the tenant could put in lawns and a vegetable garden but had not said that she would pay for them.
After receiving notice of the termination of the tenancy, the landlord was sent an invoice from John Winder Ltd dated 18 August 2023.The invoice was for a total of $13,800.00 (incl GST). The work detailed in the invoice was for gardening and driveway landscaping, work on 500 sqm of driveway and a vegetable garden.
The work has been carried out and invoiced by John Winder Ltd and includes a claim for GST on the work. The tenancy is in the name of John Winder in his personal capacity. The tenant and John Winder Limited are separate legal entities. The Tribunal has jurisdiction to hear claims between landlords and tenants. It does not have the jurisdiction to consider a claim for payment under an invoice. John Winder Ltd retains the ability to commence proceedings in the Disputes Tribunal or other jurisdictions for the disputed sum.
The tenant claim for a failure to maintain is dismissed as the initial work to bring the surrounds to a reasonable standard was carried out and paid for by the landlord. Power and gas invoicing
This precise issue was considered by the Tribunal in Parangi v Zanetich (2021) NZTT 4287072. The Tribunal held; “12. Mr & Mrs Parangi submitted that this was not adequately explained to them when they moved in. They understood that electricity would only ‘kick in’ if the water temperature dropped below a certain level. Mr & Mrs Parangi submitted that it would be unreasonable to expect them to manually control the system.
Section 39(3) of the Residential Tenancies Act 1986 (“RTA”) states that tenants are responsible “for all outgoings that in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises.
The difficulty for Mr Zanetich is that there is no meter on the tenanted premises and therefore no means to calculate the power use that is exclusively attributable to the tenant’s occupation of the premises.
In Geraghty v Raui [2019] NZDC 3813, the District Court held that in considering whether to require the tenant to pay for outgoings when there is no means for calculating the tenant’s actual consumption the Tenancy Tribunal must have regard to section 85 RTA.
Section 85(2) RTA states: The Tribunal shall determine each dispute according to the general principles of law relating to the matter and the substantial merits and justice of the case but shall not be bound to give strict effect to legal rights or obligations or legal forms or technicalities.
Mr & Mrs Parangi accepted the common-sense proposition that they used power when they lived at the property, and they should pay for their reasonable use”.
The tenanted premises are a separate dwelling. The tenant’s gas supply is from gas bottles. The tenant spoke to a plumber who said that the gas bottles supply both the tenant’s premises and the landlords barn/ sleepout. The gas to the sleepout is used to provide hot water to a shower. There is no way of metering landlord usage from the gas bottles.
The landlord says that during a period when work was being done on her house, she and her daughter used the barn /sleepout shower on approximately ten occasions. The gas connection from the tenant to the sleepout has now been turned off. The landlord provided the tenant with a refill of his gas bottle in compensation for the use by the landlord.
Using s.85(2) RTA I am required to determine this dispute according to the general principles of law and the substantial merits and justice of the case.
In this matter there is no way of measuring accurately the landlord’s gas usage.
For the term of the tenancy, the tenant says that he has paid $1,136.53 for gas. The landlord says that she provided a bottle refill in compensation for her use. In those circumstances, I consider that the tenant has been more than reasonably compensated for the limited gas use by the landlord and the claim is dismissed.
The landlord says that she had to estimate power usage by the tenant. An electricity meter had been installed, but the landlord says that she did not initially know how to operate it.
The tenant said that at the end of his first year’s tenancy, he received an invoice for power from the landlord for $1,291.49. The landlord had used her previous years power use for the entire property (including her own) as a basis for calculating the power usage for the first year and as a result required the tenant to pay 34% of the total cost. The tenant says that he was too scared to query the amount and simply paid it.
A more complicated assessment of the tenant’s power usage for the period August 2022 to August 2023 was carried out by the landlord resulting in a charge to the tenant for the period of $1,352.72.
The landlord says that the amount remining outstanding by the tenant to the end of the tenancy is $2,047.99.
The tenant refused to pay that sum until such time as an invoice relating to his power use alone was received from Mercury Energy.
It is appropriate to record that there is no landlord counterclaim has been filed regarding the outstanding power account as of the date of this hearing.
The lack of an account from the power provider for the tenanted premises means that it is impossible to accurately measure the tenant use. The common-sense approach in Geraghty v Raui and the use of s.85 RTA means that I have to accept the proposition that the tenant has used some electricity during the period of the tenancy, and the tenant should pay the landlord fair compensation for that usage.
As best as I am able to on the evidence provided, I declare that the electricity charge for the first period is $975.59. The tenant is to be refunded $315.91 by the landlord.
The electricity charge for the period August 2022 to August 2023 is $1,352.72. The tenant has not paid this account. The Tribunal declares that the amount due to the landlord for that period is $1,082.17.
The balance owing by the tenant for the period from August 2023 to the end of the tenancy is, according to the landlord’s calculation, $695.27. The tenant has not paid this amount. The Tribunal declares that the amount due to the landlord for that period is $556.21. Overpayment of rent.
The tenant says that the rent charged was not the rent figure agreed upon.
Prior to the commencement of the tenancy, John Winder Limited and the landlord entered into an agreement for sale and purchase of the tiny home to be constructed on the landlord property by John Winder Ltd. Some of the essential terms of that agreement were that John Winder, in his personal capacity, would tenant the home after construction. He would have security of tenure at a weekly rental of $250.00.
The tenant says that the agreement was not complied with. Any dispute relating to the agreement for sale and purchase is not a matter over which the Tribunal has jurisdiction. The parties are entitled to have that dispute considered in another jurisdiction. The tenant has subsequently entered into tenancy agreements and those are the matters for consideration by the Tribunal. Duress
The terms of the tenancy between these parties are set out in the first and second tenancy agreements. The tenant says that he only entered into the agreements under duress as he was homeless and had no choice.
The first tenancy agreement was executed in August 2021. The second tenancy agreement was approximately one year later. The tenant did not attempt to repudiate the contract, until it was terminated in 2023 and has continued to comply with the contract from the commencement in 2021 through until that time.
“Duress” refers to a situation where a person is pressured into signing a document they would not otherwise have signed, without that pressure. Has the tenant been able to show that they were under illegitimate pressure?
I take into account the following in making my decision. • The pressure of becoming homeless at the commencement of the tenancy was not a pressure placed on the tenant by the landlord. The lack of housing is not caused by the landlord. Other housing is available in the area at a similar cost, as can be seen by the evidence provided by the landlord. • No steps have been taken by the tenant in the period between the commencement of the tenancy and the termination. The tenant has agreed to an extension of the tenancy by way of the second tenancy agreement. The tenant, despite his protestations to the contrary, had the option of not entering into either tenancy agreement. • The tenant has paid the rent agreed to by the parties in both tenancy agreements. • No evidence of a threat from the landlord was put before the Tribunal.
For these reasons, the tenant claim is dismissed. Estoppel.
The tenant claim under this heading was difficult to grasp. The law of estoppel essentially prevents a person from asserting a right that contradicts something that they had previously said or agreed to.
The tenant says that the second load of gravel added by him in 2023, was only added as he thought that his tenancy was to be extended. He bases this proposition on correspondence with the landlord. In that correspondence the landlord discussed an increased rent for the next year. No reference is made to an extension of the tenancy. There remained for the landlord the option of simply extending the tenancy as a periodic tenancy. The tenant has assumed that a discussion with the landlord regarding rent increases automatically meant that the fixed term would be extended. The claim is dismissed. Discrimination
The tenant’s claim for discrimination was based on the landlord not agreeing to certain guests of the tenant being allowed onto the premises. Without going into details on that issue, s.12 RTA makes discrimination an unlawful act as it relates to the grant, continuance, extension, variation, termination or renewal of a tenancy agreement in contravention of the Human Rights Act 1993.
The tenant claim, even if proven, would not amount to discrimination under s.12 RTA and the claim is dismissed.
The tenant has not been wholly or substantially successful in the applications and no order is made for reimbursement of the filing fee.
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings. In the present case, neither the tenant nor the landlord has been wholly or substantially successful.
I have considered if I should grant a name suppression order for the tenant and landlord having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the tenant and landlord’s names and identifying details outweigh the interest of the open justice reporting principle.
In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the tenant and landlord against the public interest, the public interest outweighs those of the parties.
Accordingly, no order is made for suppression of the tenant and landlord names and identifying details.

Tenancy Tribunal case 4667530 — Exemplary damages at 5A Swann Road, Cromwell, RD 2, Cromwell 9384

At a glance

Tenancy Tribunal case 4667530 — Exemplary damages at 5A Swann Road, Cromwell, RD 2, Cromwell 9384

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RTA

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RTA

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions