What was the outcome of Tenancy Tribunal case 4834846?

The tribunal order states: Residence (Panmure) General Partner Limited must pay Paul Bird $650.00

How much money was awarded in case 4834846?

Property Damage: $500.00 awarded to tenant; Property Damage: $150.00 awarded to tenant

What type of tenancy dispute was case 4834846?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4834846?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10693424-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4834846?

The tribunal order states: Residence (Panmure) General Partner Limited must pay Paul Bird $650.00

How much money was awarded in case 4834846?

Property Damage: $500.00 awarded to tenant; Property Damage: $150.00 awarded to tenant

What type of tenancy dispute was case 4834846?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4834846?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10693424-Tenancy_Tribunal_Order.pdf.

Room G05, 120 Queens Road, Panmure, Auckland 1072 Tenancy Tribunal Case 4834846 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4834846 — net $650.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages (failure to comply with Section 23(1)(b) of the Residential Tenancies Act 1986	$500.00	Exemplary damages (failure to comply with Section 23(1)(b) of the Residential Tenancies Act 1986
Exemplary damages (failure to comply with Section 29(3) of the Residential Tenancies Act 1986	$150.00	Exemplary damages (failure to comply with Section 29(3) of the Residential Tenancies Act 1986
Net award	$650.00
Total payable by Landlord to Tenant	$650.00

Claims and awards in Tenancy Tribunal application 4834846 — net $650.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages (failure to comply with Section 23(1)(b) of the Residential Tenancies Act 1986	$500.00	Exemplary damages (failure to comply with Section 23(1)(b) of the Residential Tenancies Act 1986
Exemplary damages (failure to comply with Section 29(3) of the Residential Tenancies Act 1986	$150.00	Exemplary damages (failure to comply with Section 29(3) of the Residential Tenancies Act 1986
Net award	$650.00
Total payable by Landlord to Tenant	$650.00

Order

Residence (Panmure) General Partner Limited must pay Paul Bird $650.00 immediately, calculated as set out in the table below:

Reasons

The tenant attended the hearing. Mr Stokes attended the hearing for the landlord.
The premises is a boarding house with over 60 rooms and a live-in manager. The tenant resided at the premises from 26 February 2024 until 18 March 2024.
The tenant claims the landlord required him to pay rent before it fell due, failed to provide a rent statement when requested and breached his right to quiet enjoyment of the premises.

Did the landlord require payment of rent before it fell due?

Section 23(1)(b) of the Residential Tenancies Act 1986 (RTA) provides that a landlord shall not require payment of any rent “... before the expiry of the period for which rent has already been paid”. A landlord commits an unlawful act if they breach this provision, for which the Tribunal may award exemplary damages up to $1,500.00. 1
Clause 5 of the Terms of Stay and Rules of the House signed by both parties prior to the commencement of the tenancy provides: Rent is required to be paid in advance at all times. Rent is due every Thursday for the following week’s rent period Monday to Sunday.
The application form states the sums due for the period up to and including 10 March 2024. It then states: “Next rent of $420 is due on: 7/03/2024 (For period 11/03/24); to 17/03/24).”
On Friday, 08 March 2024, the tenant received a text message from the landlord saying that his rent had not been received on Thursday, 07 March 2024 and asking for payment to be made before 5pm that day. Rent was not payable until 11 March 2024. The tenant responded by saying he believed that the rent had been paid two weeks in advance and was not due until 12 March 2024. The landlord replied by text message referring the tenant to the application form.
Mr Stokes said he was aware of the prohibition on requiring rent before it fell due. Mr Stokes said that clause 5 of the Terms of Stay and House Rules and the text message were simply reminding the tenant that rent would become due and that the landlord did not issue a formal notice until the new period had started. I do not accept this. I find that both clause 5 of the Terms of Stay and House Rules and the practice of messaging the tenant requiring payment in advance of the due date to be a breach of section 23(1)(b) of the RTA.

Did the landlord fail to provide a written statement in contravention of the RTA?

Section 29(3) of the RTA provides: [o]n the written request of the tenant, the landlord shall also give to the tenant a written statement of the period to which any payment of rent relates.
Breaching this obligation is an unlawful act for which the Tribunal may award 1 See section 23(4)(a) and Schedule 1A of the RTA. exemplary damages up to a maximum of $350.00. 2
On 8 March 2024, the tenant sent an email to Mr Stokes saying that he had requested a rental summary and that he was waiting for the rental summary.
The landlord says the information was contained in the completed tenancy application form which he had already referred the tenant to in a text message earlier that day. I do not consider that this form satisfied the requirement to provide a written statement under section 29(3) of the RTA: It does not state the date when rent was due, how much had been paid by the tenant and if the tenant was in arrears.
I find that the landlord breached section 29(3) of the RTA by failing to provide a written statement when requested. Did the landlord breach the tenant’s right to quiet enjoyment of the premises in contravention of the RTA?
Section 66G(2) of the RTA provides that: [t]he landlord must 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 tenant claims that the landlord breached his right to quiet enjoyment of the premises by: a. Failing to address (or to satisfactorily address) his concerns regarding smoking by other tenants outside his window; b. Failing to address (or to satisfactorily address) his concerns regarding noise made by other tenants after 10pm at night; c. Sending him a notice of rent without having reason to do so; and d. Breaching his privacy by telephoning his sister without his permission. a) Complaint regarding smoking by other tenants outside the tenant’s window:
Mr Stokes provided photographs showing the outside of the room occupied by the tenant and the smoker’s area. From this photograph, the smoker’s area appears to be outside on the ground floor below the tenant’s room but to the left. The tenant’s evidence is that the smoke would go into his window. The tenant said that the landlord should have moved the smoking area.
I accept that even though the smoker’s area was not directly underneath the tenant’s window, smoke could be blown into his room. Mr Stokes did not dispute 2 See section 29(5) and Schedule 1A of the RTA. that smoke may have entered the tenant’s room from the smoking area below. He said that on becoming aware of the tenant’s complaint, he removed the chairs that had been put outside for those tenants who smoked in the hope that this would reduce the problem and he offered to move the tenant to another room in the premises.
The tenant was asked if he explored the option provided by the landlord of moving to another room. The tenant said he did not do so because he believed the only other rooms available were internal rooms without access to a window. Mr Stokes said that was not correct and there were other rooms with windows available at the time.
I find that it was not reasonable for the tenant to expect the landlord to move the smoking area. The offer of an alternative room was a reasonable manner to address the tenant’s complaint about this matter. It was not reasonable for the tenant to assume that there would not be any similar rooms available without checking with the landlord. This claim is dismissed. b) Complaint regarding noise after 10pm at night:
The tenant said that he was often kept awake at night after 10pm by other tenant’s use of the common facilities. Mr Stokes said that the tenant’s room was close to the common areas. He said that he responded to the tenant’s concern by offering to move his room. The tenant said he did not receive a response to this concern.
Neither party was able to provide contemporaneous written evidence of this complaint/response. Given Mr Stokes’ response to the smoking complaint, I consider it is more likely than not that he did offer the tenant to move rooms. I consider this is a reasonable way to address the complaint. This claim is dismissed. c) Issuing a notice to pay arrears without reason to do so:
On 12 March 2024, the landlord issued a “Notice to Pay Arrears”. This notice states that the landlord had not received rent for the week commending on 11 March 2024 and that if payment was not made within 10 days, the tenant’s tenancy may be terminated.
The tenant said that as the payment of rent had been made, the landlord did not have grounds to issue the notice and that it should have been withdrawn.
At the hearing, the landlord provided a rent summary sheet. This sheet showed that the payment for rent for the period 11 March to 17 March was, in fact, made on 11 March.
Mr Stokes acknowledges that payment of rent was made on 11 March 2024 and said that the Notice to Pay Arrears was issued in error. He says this was a genuine mistake and that the payment had not been picked up because a different reference had been used.
The tenant was critical of the landlord for not withdrawing this notice once it realised that payment had been made. The landlord said that once it realised its mistake it did not act on the notice and the withdrawal was by acquiescence.
Section 66G(4) of the RTA provides that 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 RTA. It is defined in section 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. 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), 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. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
I accept the issuing of the notice was an error and not an attempt to harass or bully the tenant. I do not consider this amounted to a breach of the tenant’s rights to quiet enjoyment of the premiseses or harassment. While it would have been 3 Section 38 (Quiet Enjoyment) of the RTA provides to general tenancies, section 66G (Quiet Enjoyment) of the RTA applies to to boarding house tenancies. good practice to confirm in writing that the notice was issued in error, I do not consider that failure to do so amounts to a breach of section 66(G) of the RTA. This claim is dismissed. d) Breaching the tenant’s privacy by telephoning his sister without his permission
As set out in paragraph 7 above, on Friday, 08 March 2024, the tenant received a text message from the landlord saying that his rent had not been received on 07 March and asking for payment to be made before 5pm that day. The tenant responded by saying he believed that the rent had been paid two weeks in advance and was not due until 12 March 2024. The landlord replied by text message referring the tenant to the application form.
Mr Stokes said that he then telephoned the tenant to see if he could resolve the issue. He said that the tenant became angry and was shouting during the call. Mr Stokes said it was after this telephone call that he telephoned the tenant’s sister.
The tenant provided an unsigned statement from his sister stating that Mr Stokes had called her and that he wanted to talk to her about “what was going on with [the tenant] and the rent”. She wrote that Mr Stokes had said he was worried that the tenant “would burn the place down”.
Mr Stokes said he telephoned the tenant’s sister because he was concerned about the tenant’s welfare. Mr Stokes said he had met the tenant’s sister previously and she was listed as the tenant’s emergency contact. Mr Stokes said he could not recall exactly what was said during that conversation.
During the hearing, the Tribunal tried to telephone the tenant’s sister on two occasions, but the call went to answerphone.
The Privacy Act 1993 is outside the Tribunal’s jurisdiction. In Thompson-Huntle and KJP Investments Limited [2021] NZTT Waitakere 4260498, the Tribunal was asked to decide it a landlord advising Oranga Tamariki of suspected use by the tenants of methamphetamine was a breach of the tenant’s privacy. The Tribunal sated: The word ‘privacy’ in section 38(2) RTA does not mean privacy in the sense of the Privacy Act 1993. The purpose of the section is to ensure tenants are free from unwarranted or undue intrusion or disturbance in their private lives while living at the tenancy premises.
Mr Stokes said that when he spoke with the tenant that afternoon the tenant was very angry and was shouting at him. This is consistent with the tenant’s evidence which was that he was very upset by the messages sent to him on 08 March 2024. I find that Mr Stokes predominant reason for telephoning the tenant’s sister was because he was concerned for the tenant and wished to resolve the issue. I do not find that Mr Stoke’s actions were malicious or intended to harass or otherwise harm the tenant. This claim is dismissed.

Should an award of exemplary damages be made and, if so, how much?

I have found that the landlord committed the following unlawful acts: a. Contrary to section 23(1)(b) of the RTA, the landlord required payment of rent before it fell due; and b. Contrary to Section 29(3) of the RTA, the landlord failed to provide a written statement of rent when requested.
Section 109(3) of the RTA provides that 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.
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.
I find that the landlord was aware of the prohibition set out in section 23 of the RTA on requiring rent before it fell due. The response that the provisions in the tenancy documentation and the messages sent to the tenant on 08 March were to remind him to pay when it fell due were, at best, unconvincing.
The tenant provided evidence at the hearing that the matter had a negative effect on him. He said he was very upset from the text message exchange and had to contact a health provider. This is consistent with Mr Stoke’s evidence which was that following the telephone call about the matter with the tenant he became so concerned for the tenant’s welfare that he contacted his sister.
There is a strong public interest in ensuring that landlords comply with their legal obligations under the RTA.
The maximum award for this breach is $1,500.00. I have ordered exemplary damages of $500.00.
When asked about the rent statement, the landlord says the information was contained in the completed tenancy application form. As set out above, I do not consider that this form satisfied the requirement to provide a written statement under section 29(3) of the RTA.
In T.M.T New Zealand Limited Trading as Strata Property Management v Kirk Liam Sweeney and Anne-mette Holmgard Sundahl [2021] NZDC 16182, the landlord had failed to provide an insurance and healthy homes compliance statement. The Court held that: The obligation to provide these documents are fundamental obligations on landlords of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequence for the unlawful acts involved by claiming ignorance of the law.
I find that as a professional landlord, the landlord either knew or ought to have known a written statement was required upon request and what information should have been provided in that statement. I also find that the failure to provide the written statement contributed to the tenant’s distress. Again, I find that there is a public interest in landlords complying with their legal obligations. The maximum award for a breach of this obligation is $350. I award $150 in respect of this breach. Claim for defamation:
Following the end of the tenancy, the tenant wrote a negative google review about the landlord. The landlord responded by stating “... this ex tenant we were forced to evict ...”.
The tenant was not evicted.
Mr Stokes said this comment was written by a director of the landlord. Mr Stokes acknowledged that this statement was factually incorrect and says it was in response to the negative comments left by the tenant. I find it surprising that a professional landlord would make a comment that it knew to be factually incorrect about a former tenant online. However, the Tribunal does not have jurisdiction to deal with complaints of defamation.
If the matter had occurred during the tenancy, it may have amounted to a breach of section 66G (Quiet enjoyment) of the RTA. However, the post was not made during the tenancy. This claim is dismissed.
Paul Bird has not been wholly or substantially successful with the claims. Therefore, I decline the application for reimbursement of the filing fee or suppression of his name.

Tenancy Tribunal case 4834846 — Exemplary damages at Room G05, 120 Queens Road, Panmure, Auckland 1072

At a glance

Tenancy Tribunal case 4834846 — Exemplary damages at Room G05, 120 Queens Road, Panmure, Auckland 1072

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord require payment of rent before it fell due?

Did the landlord fail to provide a written statement in contravention of the RTA?

Should an award of exemplary damages be made and, if so, how much?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord require payment of rent before it fell due?

Did the landlord fail to provide a written statement in contravention of the RTA?

Should an award of exemplary damages be made and, if so, how much?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions