Published tribunal order
Tenancy Tribunal case 5081976 — Exemplary damages at 120A Awaruku Road, Torbay, Auckland 0630
Decided 15 Sept 2025 · Published 15 Sept 2025 · Application 5081976
Landlord favoured
- Exemplary damages
- Rent arrears
Order
- Paul Bloemendal must pay Susanne Fisher $17,642.86 immediately, as follows:
Reasons
- Sadly, Mr Bloemendal is terminally unwell.
- Due to his illness and the need to attend treatment, there have been adjournments during the course of these proceedings.
- At a case conference on 6 August 2025, I directed that Mr Bloemendal appoint a representative to appear for him at the next hearing so it could proceed if Mr Bloemendal could not appear himself.
- Shortly before this hearing, Mr Bloemendal requested an adjournment as he wanted to attend the hearing but had a conflicting medical appointment. He confirmed that Mr Steven Thomas was his representative. Mr Thomas attended this hearing.
- After discussion with counsel for Ms Fisher and Mr Thomas, I determined that the hearing should proceed, rather than being adjourned so Mr Bloemendal could attend.
- I did so reluctantly, as Mr Bloemendal should be able to participate if reasonably practicable. Against that must be balanced Ms Fisher’s interests in having her claims determined and the Tribunal’s responsibility to, “....exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants..” 1
- The considerations persuading me in favour of proceeding are: a. the delays to date; b. the distinct possibility that any future scheduled hearings will also conflict with Mr Bloemendal’s treatment regime; c. Mr Bloemendal having appointed a representative; d. importantly, that the prejudice to Mr Bloemendal by not being heard in person is mitigated by the issues the Tribunal has to decide being capable of documentary proof. Introduction
- Ms Fisher rented out these premises for air b’n’b type accommodation. That is how Mr Bloemendal came to be staying there with his son.
- The parties then agreed that Mr Bloemendal could rent the property.
- They agree that there was a fixed term tenancy in place from 26 March 2024 to 29 October 2024.
- They do not agree: a. whether a bond was paid and if so how much; b. whether the bond was lodged with the Bond Centre; c. what the rent was; 1 S85 RTA d. what rent was paid.
- At the end of that fixed term, the parties agreed that Mr Bloemendal would buy the property (“first sale agreement”). According to Ms Fisher’s application, Mr Bloemendal failed to pay the deposit and the agreement did not proceed. The evidence does not include a copy of that first sale agreement, which appears not to have been recorded in writing.
- Another sale and purchase agreement was signed on 26 January 2025 (“second sale agreement”). Under that agreement the purchaser was Stephen Thomas Investments Limited (“STIL”). Mr Bloemendal signed as guarantor.
- Mr Thomas is the sole shareholder and director of STIL. He says he had the company enter into this agreement as a favour to Mr Bloemendal, with the intention that the company was later to be transferred to Mr Bloemendal.
- The agreement contained the special condition that, “The property is sold subject to occupation by Paul Bloemendal and his invitees or if they have vacated or ceased occupation, with vacant possession.”
- The agreement contained a provision that, “21.6 On receipt of the payments in accordance with clause 21.1 and 21.2 the Vendor agrees to withdraw her claims for unpaid rental in respect of the Property currently with the Tenancy Tribunal.” A further clause, “23.1 This Agreement is without prejudice to the claims of the vendor against the tenant for unpaid rent and the unpaid bond, subject to clause 21.6”, was inserted then deleted.
- Settlement of the second sale agreement was not completed either.
- Mr Bloemendal remained occupying the property until 30 July 2025 as recorded in the Tribunal’s Order of 14 July 2025.
- Those circumstances give rise to the additional questions for the Tribunal, noted in the 6 August Order: a. was there a tenancy agreement in place between 30 October 2024 and 30 July 2025, and if so: i. what rent was payable under the agreement; ii. what rent was paid under the agreement.
- Mr Bloemendal first filed an application with the Tribunal. His application seeks compensation of $25,000.00. Apart from issues with the bond, those claims either relate to the circumstances in which the sale and purchase agreements came to an end, which are matters outside the Tribunal’s jurisdiction, or respond to the landlord’s claims.
- Ms Fisher later filed her cross application. She claims compensation for unpaid rent of $69,657.14, being: a. $1,250.00 per week from 26 March 2024 to 30 July 2025 ($87,857.14); less b. $18,200.00 she acknowledges receiving from WINZ between 26 March 2024 and 8 October 2024.
- Ms Fisher also claims $5,000.00 for the bond. That is not a sum she can separately claim as it is not a debt owed but surety for a tenancy that has now ended. What rent was payable and paid under the fixed term tenancy from 26 March 2024 to 29 October 2024?
- Ms Fisher has provided in evidence a copy of a txt setting out what she says are the agreed terms. They include that $1,250.00 was payable weekly, including power, water and internet. Her evidence is that the rent was to be $900.00 per week with the services provided making up the $350.00 balance. The bond was to be $5,000.00 – unlawful as being more than 4 weeks rent 2 . Rent was to be paid 4 weeks in advance - also unlawful 3 . The failure to provide necessary information and a signed agreement is unlawful too 4 .
- The evidence does not prove an acceptance of that offer by Mr Bloemendal. He says that Ms Fisher was only entitled to the rent that WINZ was prepared to pay.
- WINZ records were provided through a summons to produce documents. They show an application on 11 April 2024 by Mr Bloemendal for rent assistance at a rental of $1,250.00 per week and for payment of a bond of $5,000.00. The application was declined on the basis that it was not sustainable. It records the tenant having been asked to try and negotiate a lower rent.
- Assessment notes from an application for assistance by Mr Bloemendal on 26 April 2024 record Mr Bloemendal advising his rental situation as being that “..he pays $500, his son pays $400 and a third person pays $350.....for utilities...”
- That corroborates Ms Fisher’s evidence about the agreed rent payments.
- However, a tenant can only be required to pay for outgoings that are exclusively attributable to the tenant’s use. 5 For services which are charged on consumption basis, a landlord cannot make a fixed charge that may (or may not) mean the tenant is paying the landlord more than the charges made for the services used. 2 S.18 RTA 3 S.23 RTA 4 Ss. 13 and 13A RTA 5 S.39 RTA
- That being so, only charges for actual use can be recovered by the landlord. The evidence does not show what those usage charges were so that part of the landlord’s claim is dismissed.
- I find that the rent recoverable by the landlord for that fixed term agreement is $900.00 per week, totalling $28,028.57.
- The landlord accepts having received payments of $650.00 per week from WINZ during that tenancy totalling $18,200.00. That evidence is not contradicted by other evidence. The remaining rent owed for that fixed term tenancy is $9,828.57.
Was a bond paid?
- The WINZ records provided show two payments made to Ms Fisher’s business, coded for bond payment. $900.00 was paid on 1 May 2024 and $1,600.00 on 3 May 2024. I find it proved more likely than not, that Ms Fisher received those payments as bond – they have not been incorporated into her rent statements. Credit for those bond payments should be given.
Was the bond lodged?
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received 6 . Failure to do so is an unlawful act for which exemplary damages of up to $1,500.00 may be awarded.
- There is no record of the tenant’s bond payments having been lodged. The landlord has thereby committed an unlawful act. I find that failure to have been intentional. It is the act itself (not lodging the bond) not an intention to act unlawfully, that is the relevant consideration.
- Where a party has committed an unlawful intentionally, the Tribunal may award exemplary damages where it considers it just to do so, having regard to the party’s intent in committing the unlawful act, the effect of the unlawful act, the interests of the other party and the public interest. 7
- The landlord’s rent statements show that she has not acknowledged receipt of the bond and she has continued to seek payment of the whole of the bond, including in this application.
- The payment situation was somewhat confused with WINZ making partial payment of the rent and separate hardship support payments being made for each of Mr Bloemendal and his son. It seems likely that the landlord overlooked 6 S.19 RTA 7 S.109(3) RTA those bond payments. A result has been the tenant continuing to be subjected to demands for payments already made.
- There is a clear public interest in ensuring that bond payments are identified and dealt with correctly. Though not the subject of separate claims by the tenant, I have noted other clear breaches of the landlord’s obligations which are unlawful acts. I take those into account as exacerbating factors and find that an award of exemplary damages of 2/3 the maximum would be just. Was there a tenancy agreement in place between 30 October 2024 and 30 July 2025?
- The question here is whether Mr Bloemendal occupied the premises after 30 October 2024 as “overrun” of his occupation under the tenancy agreement. If so, he remained liable for his obligations under the agreement by s.60(1) RTA which provides that, “Where a tenant remains in occupation of the premises after the tenancy has terminated or has been terminated, all the obligations of the tenant shall continue in force as if the tenancy were still subsisting until such time as the tenant ceases to occupy the premises.”
- The other possibility is that Mr Bloemendal’s occupation of the premises was not a continuation of his occupation as tenant, but under a new and separate right of occupation given by the first and/or second sale and purchase agreement.
- As noted, the first agreement is not in evidence. Considering the provisions of the second sale agreement, it is safe to infer that it also included a right for Mr Bloemendal to have occupation of the premises pending completion of the sale. It is also clear from the evidence that from Ms Fisher’s point of view at least, Mr Bloemendal’s rent obligations would continue, unless satisfied by completion of the sale agreement
- Under s.5(1)(o), the RTA does not apply, “......where the tenant is the purchaser of the premises under an agreement for sale and purchase with the landlord as vendor, not being an agreement that is revocable at will by the vendor”
- At first glance that seems to be the case here. It is likely that the agreed terms under the first sale agreement, incorporated consideration for Mr Bloemendal’s occupation of the premises, as was the case under the second sale agreement.
- In the absence of evidence that the first sale agreement was recorded in writing, s.24 Property Law Act 2007 has relevance. It provides that a contract for the sale of land is not enforceable unless it is in writing and signed.
- If, because of that, the first sale agreement was not enforceable, Ms Fisher could revoke it at will. I also means that any provision of that agreement intended to provide consideration for Mr Bloemendal’s occupation of the property, could not be enforced.
- I find that the first sale agreement did not create an enforceable contract whose terms overrode Mr Bloemendal’s obligation to pay rent for his continuing occupation of the premises under s.60(1) ie. it did not create an effective alternative basis for Mr Bloemendal’s occupation of the property.
- The second sale agreement, which was recorded in writing and signed, was effective and enforceable.
- It included consideration for Mr Bloemendal’s occupation of the premises. From that point, Mr Bloemendal’s occupation of the premises was no longer a continuation of his occupation under the tenancy agreement, but pursuant to the terns of an enforceable sale and purchase agreement between the landlord and the third party. Requiring payment for Mr Bloemendal’s occupation of the premises was, from then, through enforcement of the terms of the sale agreement, not the prior tenancy.
- For those reasons, I find that: a. Mr Bloemendal was required to pay rent for his continuing occupation of the premises until 25 January 2025; but b. his occupation of the premises from 26 January 2025 was not pursuant to a tenancy agreement or subject to the RTA.
- Each party has had some success. No award is made in respect of the filing fee.