Published tribunal order
Tenancy Tribunal case 4962459 — Exemplary damages at 282 Lakeview Terrace, Lake Hawea, RD 2, Lake Hawea
Decided 29 Aug 2024 · Published 29 Aug 2024 · Application 4962459
Tenant favoured
- Exemplary damages
Order
- Darrin Birley and Elisabeth Birley must pay Lucca XU and Cassie Ruan $627.00 immediately as shown in the schedule below.
Reasons
- The tenant attended the hearing on 29 August 2024. The tenant was assisted by an interpreter.
- The landlord did not attend the hearing.
- Notice of the hearing was given to the landlord on 13 August 2024. On 19 August 2024 the landlord applied for an adjournment on the grounds that on the day of the hearing he had to take his wife to hospital for a medical appointment.
- On 23 August 2024, Tenancy Services asked the landlord to provide supporting evidence of the appointment.
- No evidence was received.
- On the morning of the hearing, the landlord contacted Tenancy Services and said that he had applied for an adjournment and that he didn’t understand the message that he had received from Tenancy Services.
- The Tribunal sent an email to the landlord at 11.40 am today giving the landlord the opportunity to attend the hearing by telephone, but that otherwise advising that the hearing would proceed. No response has been received from the landlord.
- The request for an adjournment by the landlord has never been granted by the Tribunal and the matter proceeded in the absence of the landlord.
- This was a short-term tenancy.
- The tenant confirmed that it was not an Air BNB arrangement. That was confirmed in writing by the landlord in an email exchange with the tenant. The tenant provided a copy of the email.
- The tenant confirmed that this was not a holiday accommodation, nor was the accommodation temporary or transient accommodation (such as provided by hotels and motels) being accommodation ordinarily provided for periods of less than 28 days. As a result, the exclusion in s.5(1)(k) of the Residential Tenancies Act 1986 does not apply.
- The tenant has applied for refund of the bond. The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.
- Section 22B (2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. As the landlord has not filed a counterclaim, the bond is refunded in full to the tenant.
- The landlord is ordered to pay the balance of $300.00 to the tenant immediately.
- The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord has not lodged the bond with the Bond Centre. 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 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) RTA).
- A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
- The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
- However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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.
- I consider that the failure to lodge the bond was intentional for the reasons set out in paragraph 22 above, as I have received no explanation for the failure by the landlord.
- It is in the best interest of this tenant and tenants generally to have the bond held by an independent entity such as the Bond Centre
- The tenant explained that she had been put to no small amount of effort to get the balance of the bond funds from the landlord. Balanced against that is the fact that the remaining amount of outstanding bond is modest.
- Having weighed all of those factors, the landlord is ordered to pay exemplary damages to the tenant of $300.00.
- The tenant applied for costs against the landlord. The Tribunals power to award costs is limited. See s.102 RTA.
- As Lucca XU, Cassie Ruan has substantially succeeded with the claim I have ordered the landlord to reimburse the filing fee.