What was the outcome of Tenancy Tribunal case 5048173?

The tribunal order states: Irelands Real Estate Limited as agent for Naoko Tani must pay Brittany Jean

How much money was awarded in case 5048173?

Compensation: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5048173?

The dispute type was not classified.

Where can I read the official tribunal order for case 5048173?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11285835-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5048173?

The tribunal order states: Irelands Real Estate Limited as agent for Naoko Tani must pay Brittany Jean

How much money was awarded in case 5048173?

Compensation: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5048173?

The dispute type was not classified.

Where can I read the official tribunal order for case 5048173?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11285835-Tenancy_Tribunal_Order.pdf.

31A Quinns Road, Shirley, Christchurch 8013 Tenancy Tribunal Case 5048173 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 5048173 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation arising from wrongful termination of tenancy	$2,000.00	Compensation arising from wrongful termination of tenancy
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Total payable by Landlord to Tenant	$2,027.00

Both parties attended the hearing. Ms Harding represented the landlord.

The tenants have sought exemplary damages for the wrongful termination of their fixed term tenancy and compensation for their costs and for the mental distress that they suffered as a result. Background

The tenancy started on 17 July 2017 and ended on 30 September 2024 following a 90-day termination notice given (wrongly) by the landlord.

The tenants have been on fixed term tenancies. After the last tenancy came to an end on 23 February 2024, the tenants wanted a further fixed term tenancy.

The parties met and signed a fixed term tenancy renewal. The agreement, signed on 15 March 2024, provided for an extension of the fixed term tenancy until 23 February 2025.

On 2 July 2024, the landlord emailed the tenants a 90-day notice terminating the tenancy on the basis that the owner wanted to carry out extensive alterations, refurbishment, repairs, or redevelopment and it would not be reasonably practicable for the tenants to live at the premises while the work was done.

On 8 July 2024, the tenants emailed the landlord and advised that they had a fixed term tenancy and the termination notice given was invalid. Unfortunately, the email address the tenants used was incorrect, so the landlord did not receive that advice.

The tenants complied with the termination notice and vacated the premises on 30 September 2024. They had no place to move to and stayed in a friend’s garage for 2 weeks before they found somewhere else to live.

The tenants incurred costs – cleaning, rubbish removal, truck hire, lost wages, and storage fees amounting to $3,676.47. They seek those costs as well as compensation for the mental stress as a result on the landlord’s notice to end the tenancy. The also seek exemplary damages for the wrongful termination of the tenancy. Relevant legal considerations

Section 60AA of the Residential Tenancies Act 1986 (RTA) provides: 60AA Landlord acting to terminate tenancy without grounds A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as mental stress and harm. In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.

Exemplary damages are different. They are designed to punish and to deter. They are like a fine.

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.

In Birch the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Discussion

The tenants had a fixed term tenancy until 23 February 2025. The landlord was not able to end it by giving notice. The only way the tenancy could end was by agreement between the parties or in certain limited circumstances, none of which is relevant here.

Ms Harding admitted that she made a mistake. Despite signing the tenancy agreement for the landlord, she did not upload it to the landlord’s electronic system, and she believed that the tenancy was a periodic tenancy.

Acting on that belief, she, on the owner’s instructions, issued the 90-day termination notice based on extensive alterations or repairs being carried out.

In fact, the work to be done (which has since commenced) was re-levelling foundation work. Ms Harding said the work could have been deferred until the end of the fixed term had she known that the tenancy was not a periodic tenancy.

So, even if the tenancy had been a periodic tenancy, the work was not of such importance that it justified the giving of notice, nor was it in any sense necessary work to be done then.

Had the tenants challenged the termination notice, the Tribunal almost certainly would have set it aside. Exemplary damages

Property managers, as professional landlords, are expected to be fully knowledgeable about the statutory responsibilities the RTA imposes on them.

I have considered awarding exemplary damages against the landlord because the tenancy was terminated without grounds, first, because the tenants had a fixed term tenancy, and second, because the work was not required to be done at that time; it could have been deferred. The termination of the tenancy was therefore an unlawful act.

I have to consider whether the landlord ‘turned their mind to the unlawful act and deliberately set about to commit it’.

From Ms Harding’s evidence I cannot conclude that she acted with intent, a necessary element before the Tribunal awards exemplary damages. Rather, she was negligent by not ensuring there were systems in place to record that the tenancy was a renewed fixed term tenancy. She acted on a false (but genuine) belief that the tenancy was a periodic tenancy.

I would have reached a different conclusion had the tenant’s email dated 8 July 2024 been received by the landlord, but it was not. The email address was incorrect.

So, in giving the notice to terminate the tenancy, Ms Harding believed she had grounds to terminate the periodic tenancy, even though she did not.

As I have noted, the remedy for the termination notice would have been an application to set it aside, because the grounds given for the notice were not valid. But the tenants made no application to have the notice declared invalid.

For these reasons, I have decided not to award exemplary damages in this case. Compensation

Most of the costs claimed by the tenants were costs they would have incurred regardless of when the tenancy ended – cleaning, rubbish removal, truck hire, loss of wages. Their storage costs might or might not have been incurred. They incurred those costs because they could not find a place to move to. Some storage costs are on-going because they have more goods than they can accommodate in their new premises. The same might have happened even if the tenancy had run to term.

However, I am persuaded to award the tenants compensation arising from the wrongful termination of their tenancy. They described the mental stress involved in moving, all the while knowing they had a fixed term tenancy, something the landlord would not acknowledge.

The family was split up for a time. Mrs and Ms Fitzgibbon moved into a friend’s garage. Mrs Fitzgibbon’s son had to stay with his father for 6 weeks.

Mrs Fitzgibbon said her mental health conditions, which pre-existed, were exacerbated, and she had to re-engage with counselling.

In response, Ms Harding said the tenants had caused her stress during the tenancy and she referred to their refusal to de-clutter as though that was some mitigating factor. But she accepted that she had wrongly terminated the tenancy and apologised for that.

This was a long tenancy by New Zealand standards. It is unfortunate that it ended in the manner it did. Landlords sometimes under-estimate the effects on a tenant of the termination (wrongful in the case) of a tenancy. As a direct consequence of the landlord’s wrongful action, the tenants experienced inconvenience, prematurely incurred costs, and mental stress and distress. For this, I award them compensation of $2000.00. Result

The landlord will pay the tenants compensation of $2,000.00 together with the filing fee on the application a total of $2,027.00.

The application for exemplary damages is dismissed. Name suppression

The tenants did not seek name suppression. The landlord sought name suppression, but I make no order as the tenants’ application is largely successful, the landlord’s defence largely unsuccessful – see section 95A RTA.

Reasons

Claims and awards in Tenancy Tribunal application 5048173 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation arising from wrongful termination of tenancy	$2,000.00	Compensation arising from wrongful termination of tenancy
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Total payable by Landlord to Tenant	$2,027.00