What was the outcome of Tenancy Tribunal case 5107868?

The tribunal order states: Joanne Dysart must pay Brandon Charles Johnson $3,660.00 immediately,

How much money was awarded in case 5107868?

Compensation: - failing to lodge bon…: $500.00 awarded to tenant; Compensation: - tenants travel to co…: $160.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 5107868?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 5107868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11312102-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5107868?

The tribunal order states: Joanne Dysart must pay Brandon Charles Johnson $3,660.00 immediately,

How much money was awarded in case 5107868?

Compensation: - failing to lodge bon…: $500.00 awarded to tenant; Compensation: - tenants travel to co…: $160.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 5107868?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 5107868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11312102-Tenancy_Tribunal_Order.pdf.

431 Omaunu Road, Kaeo, RD 2, Kaeo 0479 Tenancy Tribunal Case 5107868 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5107868 — net $3,660.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: - tenants travel to collect goods	$160.00	- tenants travel to collect goods
Exemplary damages: - failing to provide tenancy agreement in writing	$250.00	- failing to provide tenancy agreement in writing
Exemplary damages: - failing to provide HHS statement	$250.00	- failing to provide HHS statement
Exemplary damages: - failing to meet s 45 obligations	$2,500.00	- failing to meet s 45 obligations
Compensation: - failing to lodge bond	$500.00	- failing to lodge bond
Net award	$3,660.00
Total payable by Landlord to Tenant	$3,660.00

Claims and awards in Tenancy Tribunal application 5107868 — net $3,660.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: - tenants travel to collect goods	$160.00	- tenants travel to collect goods
Exemplary damages: - failing to provide tenancy agreement in writing	$250.00	- failing to provide tenancy agreement in writing
Exemplary damages: - failing to provide HHS statement	$250.00	- failing to provide HHS statement
Exemplary damages: - failing to meet s 45 obligations	$2,500.00	- failing to meet s 45 obligations
Compensation: - failing to lodge bond	$500.00	- failing to lodge bond
Net award	$3,660.00
Total payable by Landlord to Tenant	$3,660.00

Order

Joanne Dysart must pay Brandon Charles Johnson $3,660.00 immediately, calculated as shown in table below:
The balance of the claims are dismissed.

Reasons

The tenant attended the hearing by phone.
The landlord was telephoned twice on the phone number provided but the phone calls went unanswered. Preliminary matters
The tenant’s application and notice of hearing were served on the landlord by the email she used to send the terms of the tenancy and to correspond with the tenant.
The landlord has not provided the tenant with any other address for service.
I have treated the application and hearing notice as being served on the landlord pursuant to s 91B(2)(b) of the Residential Tenancies Act 1986 (RTA) as I consider emailing the documents would have ensured the landlord had notice of the application and hearing. The hearing proceeded in her absence.
The tenant seeks compensation and exemplary damages on the basis of various alleged breaches of the RTA. Relevant legal provisions
The relevant law that applies is found in the RTA.
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
Section 85 of the RTA requires the Tribunal to exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants and to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but it is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined this application with these provisions in mind.
In the decision that follows I may not have referred to all the evidence provided, but the tenant should know that I have considered all the evidence. Refund of Bond
The tenant applied for a refund of the bond however he confirmed at the hearing he has received the bond.
Accordingly, I dismiss the application for payment of the bond. Tenancy agreement
A landlord must ensure that the tenancy agreement is in writing and must sign the tenancy agreement before the tenancy commences and provide a copy of the tenancy agreement to the tenant (whether or not the tenant has signed it). See section 13 (1) and (2) of the RTA.
The tenancy commenced on 31 October 2024.
The tenancy agreement was effectively an email between the parties confirming the terms of the tenancy. The tenant provided the Tribunal with the email. The tenant says the agreement was not signed by the landlord.
I find the landlord has failed to comply with section 13 of the RTA in relation to the tenancy agreement.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages. See section 13(4)(a) I will address the claim for exemplary damages below. Healthy homes compliance statement
A landlord must also include in the tenancy agreement a statement, made and signed by the landlord that states that, on and after the commencement of the tenancy, the landlord will comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) and the statement must include the information prescribed by HHS regulations. See section 13A (1 CA) of the RTA.
The information prescribed by the HHS is set out in regulations 34 to 39 of the HHS and a template is provided on the Tenancy Services website.
The tenant says the landlord did not provide the HHS statement and the emailed terms of the tenancy has no reference to the HHS.
I find the landlord has not provided the HHS compliance statement.
Breaching this obligations is an unlawful act for which the Tribunal may award exemplary damages. See section 13 A(1F) of the RTA. I will address the claim for exemplary damages below. Landlord’s obligations
The tenant claims that the landlord has breached the obligations under section 45 of the RTA. A landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair. See section 45 (a) and (b) of the RTA.
The tenant says when the tenancy commenced the premises was unclean and was not provided in a reasonable state of repair.
Photographs were provided to show that there were areas in the premises that were not in a reasonable state of repair.
The persuasive evidence the tenant provided included: a. a photograph of a tap glued in place, b. photographs of damage to walls, and c. a photograph of a pipe taped up.
The tenant also provided a detailed written description of the property which outlines the poor state of the premises at the start of the tenancy.
The tenant says there was a persistent issue with dust coming from the road over the property and into the premises. The tenant says he would not have rented the premises if he had known about the dust issue. No photographs of the dust in the premises were provided. I consider that there is insufficient evidence that the landlord has breached any obligation in the RTA in relation to the dust issue.
I addition, I am not satisfied on the evidence that the premises was not in a reasonable state of cleanliness at the commencement of the tenancy. The claim is respect of cleanliness in dismissed.
On the evidence provided I consider that the landlord did not provide the premises in a reasonable state of repair.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages. I will address the claim for exemplary damages below. Locks
A landlord must provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure. See section 46 of the RTA.
Failure to comply with section 46(1) of the RTA is an unlawful act for which the Tribunal may award a tenant a maximum penalty of $1,500.00 exemplary damages.
I am not satisfied that there is sufficient evidence provided that the landlord has failed to provide and maintain the locks as necessary to ensure that the premises are reasonably secure.
Accordingly, the claim in respect of the locks is dismissed. Landlord retaining property
If a tenant leaves goods that are neither foodstuffs nor other perishable goods at the end of the tenancy, the landlord must, immediately after taking possession of the premises, make all reasonable efforts to contact the tenant and to agree with the tenant on a period within which the tenant is to collect the goods. See section 62 of the RTA.
Section 62A and 62 B of the RTA set out the process the landlord must follow for disposal of abandoned goods following the end of the tenancy if the tenant does not collect the goods within the agreed period.
The tenant says arrangements were made with the landlord for him to travel from Auckland to Kaeo to uplift his roll bars on 8 January 2025.
The tenant says when he arrived the roll bars were not at the property as arranged and the landlord has not returned the roll bars.
The tenant claims compensation for the roll bars of $350.00 (this being the amount he had arranged to sell them for) and petrol costs of $160.00.
The tenant has provided text messages which confirm the landlord told the tenant to collect his belongings, but she did not make reasonable arrangements to provide his property to him and the text message exchange indicates he travelled to Kaeo but could not collect the goods.
The tenant has not provided sufficient evidence as to the value of the roll bars therefore the claim for compensation for the roll bars is dismissed.
However, the landlord has not complied with the provisions of the RTA in respect of the tenants’ goods, and I make an order compensating the tenant for his travel costs of $160.00.
The amount claimed is proved by the tenant’s oral evidence and text messages provided. Harassment
The tenant claims the landlord has harassed him.
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. 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 tenant says over a three-month period the landlord sent daily text messages about the tenancy, for example, saying she would be selling the house or that she might move into the garage.
The tenant has not provided all the messages he says relate to the claim and on the evidence provided I am not satisfied harassment has occurred.
The claim in respect of harassment is dismissed. Retaliatory notice
The Tribunal may declare a notice to terminate a tenancy of no effect, and retaliatory if in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by the RTA or any other Act or any complaint by the tenant against the landlord relating to the tenancy. See section 54 of the RTA.
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.
The Tribunal in Easton v Marks Auckland TT 229/87, 27 May 1987 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions. The Tribunal in that case noted that: It is one thing to say that an owner of a property has grown somewhat tired of his property being tenanted to persons, it is another thing to say that the tenants gave impetus to, or incited, or impelled the owner to give the notice to quit. Termination before claim filed
The tenant’s application to the Tribunal was filed on 13 December 2024.
I understand when the tenant filed his claim the landlord had given notice to terminate his tenancy by text message.
The text messages indicate the tenant told the landlord he could not pay rent and that he had requested to use the bond to cover rent – to which the landlord agreed on the basis the tenancy ended on 1 January 2025.
The tenant seeks an order that this is notice terminating the tenancy that is retaliatory.
The tenant has vacated the tenancy therefore the remedy if the tenant is successful in respect of this claim would be compensation.
The text messages provided by the tenant between himself and the landlord in relation to the termination were undated, and it appears there are a number of messages that have not been provided making the correspondence difficult to follow.
The tenant says that he asked the landlord to use the bond to cover rent for a period when he had no income. This is not a right or power the tenant has under the RTA.
The tenant also says he complained to the landlord about problems with the premises. I am not satisfied on the evidence that the tenant’s complaints about the premises motivated the landlord to terminate the tenancy.
On the evidence before me I consider the notice of termination was motivated by the tenant breaching their obligation to pay rent. Second notice
On 17 December 2024 the tenant emailed the Tribunal with additional information in support of his application, outlining the poor state of the premises.
On 18 December 2024 the landlord gave the tenant a further termination notice by email. The notice said: hi brandon the last rent deposit was $300 on the 4th dec 2024 with this understanding ... I give notice that you need to vacant on the 1st of january 2025, as the agreement has been broken . i do allow the bond to be used as the rent for these last 4 weeks . i will inspect on the 1st jan 2025 as i will be on my property from that day . thank you for this i hope this has helped your situation joanne
However, by 18 December 2024 I understand the landlord had given notice to terminate the tenancy by way of the text messages referred to above and this second notice was to confirm the basis for the tenancy ending – being rent arrears.
I consider there is insufficient evidence that the tenant raised complaints to the landlord prior to the landlord terminating the tenancy by text message.
I am not satisfied on the evidence provide that the landlord was at least partly motivated by the exercise of a right or power that the tenant had in relation to the tenancy, or a complaint by the tenant in relation to the tenancy.
Accordingly, the application for an order that the notice terminating the tenancy is retaliatory and of no effect is dismissed. Healthy Homes Standards
The tenant has claimed that the landlord has breached the obligations in relation to the HHS. The RTA requires compliance with the HHS. See Section 45(1)(bb) of the RTA
The HHS provides for a minimum set of requirements for residential tenancies as it relates to heating, insulation, ventilation, draught stopping, and moisture ingress and drainage.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
The 90 period by which the landlord must comply with the HHS had not lapsed by the end of the tenancy; therefore, I find the landlord has not breached the HHS. Bond not lodged
A landlord must pay any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA. The tenant claims that the landlord did not lodge the bond with the Bond Centre.
The Bond Centre records confirm the Bond was not lodged. I find that the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages and I address this further below. Exemplary damages
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act.
I have determined that the landlord has committed unlawful acts, for which exemplary damages can be ordered.
The Tribunal must take a global approach to exemplary damages meaning one order to a single maximum irrespective of the number of breaches of a section. See MBIE v Hillis Shearing Limited [2024] NZDC 27583.
The maximum level of exemplary damages that can be ordered are set out in Schedule 1A of the RTA and the following apply: a. Landlord failing to ensure tenancy agreement in writing, signed, and provided to tenant – s 13 (4) - $750. b. Landlord failing to provide HHS statement. – Section 13A(1F)(a) - $750 c. Landlord failing to meet obligations in respect of cleanliness, maintenance, smoke alarms, the healthy homes standards, or buildings, health, and safety requirements - s 45 (1A) - $ 7,500.00. d. Breaching duties on receipt of bond - s 19 (2) - $ 1,500.
I must take account of the factors set out in section 109 of the RTA, specifically: a. the intent of that person in committing the unlawful act; and b. the effect of the unlawful act; and c. the interests of the landlord or the tenant against whom the unlawful act was committed; and d. the public interest,
Landlords are required to know the law and there is a public interest in ensuring landlords comply with the RTA.
The requirement to provide a written tenancy agreement with a HHS statement, lodge the bond and comply with the responsibilities set out in s 45 of the RTA are so fundamental that I find that the landlord has acted intentionally. This finding is supported by terms in the tenancy agreement in which the landlord sought to specifically avoid landlord responsibilities.
The effect of the tenant for the unlawful acts are the inconvenience, stress and worry for the tenant. It is in the tenant’s interest to receive exemplary damages for the unlawful acts committed against him. However, it is also relevant that this was a short tenancy and the bond was refunded.
Having regards to the above factors I consider an award of exemplary damages of a third of the maximum is appropriate for each amount that applies in the Schedule.
Accordingly, the amount ordered exemplary damages are as follows: a. Failing to provide tenancy agreement in writing - $250.00 b. Landlord failing to provide HHS statement. - $250.00 c. Failing to meet section 45 obligations - $2,500. d. Failing to lodge the bond - $500.00. Filing fee
Because the tenant has not substantially succeeded with the claim, I have not reimbursed the filing fee. Suppression
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. See Section 95 A (1) of the RTA.
As the tenant has not had substantial success, I have not made an order for name suppression.

Tenancy Tribunal case 5107868 — Exemplary damages at 431 Omaunu Road, Kaeo, RD 2, Kaeo 0479

At a glance

Tenancy Tribunal case 5107868 — Exemplary damages at 431 Omaunu Road, Kaeo, RD 2, Kaeo 0479

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