What was the outcome of Tenancy Tribunal case 4845060?

The tribunal order states: Paul Adams and Lee Adams must pay Heni Poi and William Hongara $1,150.44

How much money was awarded in case 4845060?

Property Damage: $800.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Overpaid Rent: $330.00 awarded to tenant

What type of tenancy dispute was case 4845060?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4845060?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10626330-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4845060?

The tribunal order states: Paul Adams and Lee Adams must pay Heni Poi and William Hongara $1,150.44

How much money was awarded in case 4845060?

Property Damage: $800.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Overpaid Rent: $330.00 awarded to tenant

What type of tenancy dispute was case 4845060?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4845060?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10626330-Tenancy_Tribunal_Order.pdf.

769 Wharekopae Road, Ngatapa, RD 2, Gisborne 4072 Tenancy Tribunal Case 4845060 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4845060 — net $1,150.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Overpaid rent	$330.00	Overpaid rent
Exemplary damages – breach of quiet enjoyment	$800.00	Exemplary damages – breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,150.44
Total payable by Landlord to Tenant	$1,150.44

Claims and awards in Tenancy Tribunal application 4845060 — net $1,150.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Overpaid rent	$330.00	Overpaid rent
Exemplary damages – breach of quiet enjoyment	$800.00	Exemplary damages – breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,150.44
Total payable by Landlord to Tenant	$1,150.44

Order

Paul Adams and Lee Adams must pay Heni Poi and William Hongara $1,150.44 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $660.00 (4017612-008) to Heni Poi and William Hongara immediately.
All other claims are dismissed.

Reasons

Heni Poi, aka Heni Hongara, and William Hongara, the tenants, along with Ms Finlay their support person, attended the hearing. Mrs Adams, one of the landlords, on behalf of both landlords. and her support person, Ms Talbot, also attended the hearing.
The tenants claimed breach of quiet enjoyment, recovery of overpaid rent, refund of the bond, exemplary damages and refund of the application fee. At the start of the hearing, the tenants also added a claim for compensation. Background
The background to these claims is that the tenants had to move out of the tenancy property due to Cyclone Gabrielle, which hit the Gisborne region on 14 February 2023. The property was hit by flooding and was rendered uninhabitable from the silt, mud and other debris left by the Cyclone. The tenants provided photographs of the level of flooding at the property, the silt, mud and debris left, and of the condition of the property post-Cyclone. They said that they lost all their physical possessions in the Cyclone, including all furniture and precious items from deceased loved ones. They explained that the family has experienced post-traumatic stress in severe ways after the Cyclone. Mrs Hongara and their autistic son have been receiving counselling and are on anxiety medications. The tenants reported that their autistic son has attempted self-harm at least twice, as he has struggled to deal with the loss of his belongings and home in the Cyclone.
The tenants’ main issue around having to leave the property post-Cyclone was the way they feel they were treated by the landlord, and the pressure they believed they were put under by the landlord to move out their belongings from the interior of the cottage, and then from the outside shed, at a time when going into the cottage building was dangerous and hazardous, and as they were attempting to deal with their autistic son’s inability to cope with the situation simultaneously.
The tenants spoke of an earlier very positive relationship with the landlords, saying they have much respect for them. The landlords have also experienced much loss with their farm, which is a neighbouring property to the tenancy property cottage. Mrs Adams explained that attempting to get the tenancy cottage repaired has been hugely challenging and it remains unrepaired currently. She said she and her husband have faced many struggles in dealing with their property also post-Cyclone Gabrielle. The landlord acknowledged having to give the tenants the required 7-days’ notice to terminate the property on 20 February 2023, as it was uninhabitable, which was not contested.
The tenants confirmed they received the landlord’s notice to leave the property on 20 February 2023 and that the landlord asked them to return the keys by 27 February 2024. The tenants said they put down corrugated iron inside the cottage to be able to access the house and get their belongings out and dispose of them, all of which was completed by 21 February 2024, for the landlord’s builders to get in there, as requested. The tenants said they left some of their belongings in the outside shed and asked for more time to get these items moved. This was mainly because they said they could not secure a trailer when so many others were booking trailers at that time. They spoke of their freezer in the shed that had had the food inside it emptied out from the flooding. They said that navigating the silt and thick mud was very difficult and unsafe. They had understood there was an agreement for them to have more time to move out the shed items, which was strongly disputed by the landlord. The tenants said their belongings from the outside shed were finally moved out by 4 March 2023, when a housing organisation brought out trailers to help them move. Texts referred to below between the parties are on dates that post-date 4 March 2023 and refer to the collection of remaining gear owned by the tenants. It was unclear from the evidence whether this remaining gear referred to after 4 March 2023 included disposable items damaged by the Cyclone or other items.
During the hearing, the landlord agreed to pay the tenants $330.00 as overpaid rent, as claimed, and for the tenants to receive the whole bond of $660.00, also as claimed. Therefore, I order that the landlord pay the tenants $330.00 in overpaid rent.
The Bond Centre is to refund the bond of $660.00 (#4017612-008) to the tenants, Heni Poi aka Hongara and William Hongara. Breach of quiet enjoyment
Heni Poi and William Hongara claimed the landlord harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants said they had left the property during the Cyclone on 14 February 2023, could not get back into the property because of the water levels on 15 February 2023 and finally returned to the property on 16 February 2023, when they found a note inside from the landlord dated 15 February 2023. They said this note told them the landlord had been into the property to take photographs and assess the damage and that the landlord asked them to walk up to their house to discuss matters. The tenants indicated they had not received any notice from the landlord of their intention to enter the property to do this, nor had they consented to the landlord going into the property on 15 February 2024.
Mrs Adams said she and her husband were pressured by their insurance company to get into the tenancy property and take photographs for their insurance claim, as soon as possible. She acknowledged not notifying the tenants of their visit to or entry into the property on 15 February 2023 and said she had not been confident of being able to receive a response from them quickly, even if she had notified them of this.
The tenants reported that, after they received a text from the landlord on 20 February 2023 giving them 7 days’ notice to leave the property, they then received a series of texts and visits from the landlord. They said these texts and visits made them feel highly pressured to get their belongings out of the property at a time when they felt shocked and traumatised by the Cyclone, and were dealing with their autistic son’s reaction to the loss of his home and belongings. Copies of texts between the parties were provided by both parties.
There was a text from the landlord on 19 February 2023, the day before they gave the tenants termination notice, saying “we really need your gear out of the cottage as we have tradies teed up to assess the damage lift carpets and lino b4 it goes mouldy. There is free dumping of water damaged goods at the recycling centre. Also concerned about any food that maybe left in the freezer with this hot weather. Will attract flies and rodents. Thanks lee.” A further text from the landlord on 19 February 2023 told the tenants that “2 to 3 weeks to empty the cottage is not acceptable. Suggest you try the storage depot in makaraka to put your furniture. I’m thinking they charge about $100 a week to hire a unit.” Notice to terminate was then given to the tenants on 20 February 2023.
From 28 February 2023 onwards, there was a series of texts between the parties where the landlord was asking for the return of the keys and saying tradespeople had been organised to check out the cottage and remove water damaged floor coverings and walls. The tenants responded on 28 February 2023 that most of the contents had been removed from the house and concrete floor shed but the back shed still had some items in in, and that rain and work had prevented them from removing all items.
When the tenants mentioned in the hearing that they got sick from removing their belongings from the property, Mrs Adams said this was unsurprising to her as the house had health and safety issues, as there was sewerage in the cottage from the broken septic tank from the Cyclone and silt and thick mud. She indicated she was surprised the tenants had not used protective gear when working at the property. She acknowledged she was pressuring them to move out quickly, despite being aware of these hazards, but explained that this was to minimise their exposure to these hazardous conditions. She agreed, however, that she had not mentioned this concern about these hazards in her texts to the tenants.
On 4 March 2023, the landlord texted they were hopeful of seeing the tenants that day to complete the pick-up of their belongings and leave the keys. The landlord threated to take all remaining gear of the tenants to the dump and change the locks unless it was collected. Mrs Adams said she finally got the keys back around 9/10 March 2023.
On 11 March 2023, the landlord texted the tenants that their builders had had to move some of the tenants’ gear to access the house for stripping, they assumed the tenants no longer wanted what had been left, and it would be dumped the following week. On 13 March 2023 the landlord texted the tenants that they were loading a truck with the tenants’ remaining gear that day and the tenants would be responsible for all dump fees. Mrs Adams said this was because she felt so frustrated at the tenants’ inaction in moving their belongings out. The tenants tried to clarify by text the same day that they had understood the landlord’s priority to be inside the house and the shed and that they requested time to remove the rest of their gear. They said it had been impossible for them to hire a trailer, given so many other people in similar situations had booked them all and that they had a trailer booked for 18 March 2023. Mr Hongara said the tone of the texts felt very threatening and bullying and the frequency of the texts, in the stressful situation from the Cyclone, felt overwhelming to his family.
The tenants said they also received at least two visits from Mr Adams, where his tone and manner in dealing with them about them having to move their belongings was quite bullying. Mrs Adams said her husband is 84 years old, is gentle and is highly unlikely to have bullied anyone. Mr Hongara said that a staff member of a support organisation helping them moved had had to ask Mr Adams to leave the property because of his behaviour. No direct evidence was provided from this staff member of the support organisation, however, and so I do not make any findings about the allegation that Mr Adams was asked to leave the property by a staff member of the support organisation.
Mr and Mrs Hongara said they found the landlord’s behaviour in the circumstances very unreasonable. They felt harassed by the landlord, due to the visits from Mr Adams and the repeated texts from the landlord, with their harsh tone.
I find the situation was not handled ideally by the landlords at the time. I acknowledge the difficult conditions created for all parties due to the Cyclone. However, the landlords were obliged to obtain the tenants’ consent to enter the tenancy property before going into the property on 15 February 2024, or provide appropriate notice of this, and yet had not obtained this consent from the tenants, or provided any such notice of their intention to visit the property. It is unfortunate that the landlord continued to pressure the tenants to move out their belongings swiftly, whilst knowing the conditions in the cottage, with sewage, silt, thick mud and debris in there, were dangerous and created health and safety issues for the tenants. Further, the tone of the texts from the landlord, even given the frustration felt by the landlord that the tenants were taking longer than anticipated, could be interpreted as rather lacking in empathy, given the situation, and were threatening at times. The visits by Mr Adams to the property, although Mrs Adams said he had gone there to offer help to move, were perceived by the tenants as putting further pressure on them, unfortunately, in the context of the unconsented visit by the landlord on 15 February 2023 and the series of texts they received from the landlord telling them to remove their belongings repeatedly.
In the circumstances, and given the evidence, I find the landlord breached the tenants’ quiet enjoyment and that, as the visits and series of texts were part of a pattern of behaviour that were perceived as intrusive, pressuring, and threatening by the tenants, that this behaviour amounted to harassment by the landlord.
As such, I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. There, damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
Similarly, in this situation, the landlord continued to pressure the tenants to move their belongings in a highly challenging situation post-Cyclone, with hazardous conditions in the property, likely knowing this would be stressful and dangerous for the tenants. As such, I find that the landlord committed this unlawful act intentionally.
I have dealt with the intent of the landlord above. As a result of the landlord’s actions in continuing to text and visit the tenants, and their unconsented entry into the tenancy property, the tenants said they felt stressed, overwhelmed and anxious at a time that was already traumatic for both of them and their autistic son. Because of the landlord’s pressure on them to move their belongings urgently, and the time taken up by having to do this, the tenants said they were unable to take sufficient care of their son’s well-being, as he struggled to cope with the loss of his home and belongings. Their son then attempted self-harm 3 weeks after they moved out and was apparently hospitalised. The tenants’ and their family’s interests do not appear to have been well-served in this situation. There is a public interest also in tenants being permitted to have quiet enjoyment of their tenancy property, and for landlords to take any remedial or other action, in a manner that is prescribed by the Residential Tenancies Act 1986, and, if required, through legitimate means, such as Tribunal applications.
The maximum level of exemplary damages is $3,000. I consider an order of one third of the maximum would usually be indicated in a similar situation. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. However, I also consider as mitigating factors that the landlord was also under significant stress post-Cyclone at the time and was attempting to have their cottage property assessed and repaired rapidly in the circumstances of the flooding, and that the tenants’ belongings remained in the outside storage area after the end of their 7-day termination notice. I recognise this caused huge frustration for the landlord, as they were trying to coordinate tradespeople to repair the property in a challenging situation. Given these mitigating factors, I order exemplary damages of $800.00. Compensation
The tenants claimed compensation for the damage to their well-being at the time they were leaving the tenancy. They said that both Mrs Hongara and their autistic son, have struggled with mental health issues, both are receiving counselling and are on anxiety medications. They indicated their son had attempted self-harm only 3 weeks after they moved out and again a month later. He had ended up in hospital after the first attempt. They spoke of having to put their son’s clothing through repeated washings to remove the silt so he could wear his same clothes again, given his condition. Mr and Mrs Hongara felt they had to set aside their son’s well-being at the time of leaving the property, due to the constant pressure they felt from the landlords to get out swiftly. This came at a time when Mr Hongara was working long shifts to maintain the family, with little sleep as he attempted to negotiate the hazardous conditions at the property to remove their belongings.
I asked the Hongaras to try and explain the difference between the impact on them of the Cyclone itself versus the impact on them from any actions of the landlord, given the situation they explained. They said the landlord’s pressure had mainly made them feel they had had to set aside their son’s best interests and that he then attempted self-harm shortly after that time.
The tenants did not submit an amount they claimed for compensation, nor did they provide any additional supporting medical or other evidence addressing this compensation claim against the landlord, other than their own direct evidence.
I recognise and acknowledge that the trauma experienced by the tenants and their family from the Cyclone, which resulted in the loss of all their belongings and their tenancy home, as well as the impact on their and their son’s well- being and health, has been severe. The tenants spoke eloquently of their struggles since the Cyclone. However, due to the lack of additional supporting evidence provided for this claim, I find the tenants have not proved that the landlord’s actions towards them after the Cyclone directly likely caused this trauma. In the circumstances, and given the evidence, I find it more likely that this stress, trauma and suffering experienced by the tenants and their son has been caused because of the Cyclone itself and the subsequent displacement of their lives from this. As such, I dismiss this claim. Filing fee
Because Heni Poi, William Hongara have been successful with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4845060 — Exemplary damages at 769 Wharekopae Road, Ngatapa, RD 2, Gisborne 4072

At a glance

Tenancy Tribunal case 4845060 — Exemplary damages at 769 Wharekopae Road, Ngatapa, RD 2, Gisborne 4072

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions