What was the outcome of Tenancy Tribunal case 5158135?

The tribunal order states: Ian McGowan And Robyn McGowan As Trustees Of The McGowan Family Trust

How much money was awarded in case 5158135?

Property Damage: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5158135?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5158135?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11969322-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5158135?

The tribunal order states: Ian McGowan And Robyn McGowan As Trustees Of The McGowan Family Trust

How much money was awarded in case 5158135?

Property Damage: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5158135?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5158135?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11969322-Tribunal_Order.pdf.

Room 30 C1, 30 Waterford Road, Katikati 3129, The Old Mill Tenancy Tribunal Case 5158135 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5158135 — net $2,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$500.00	Bond not lodged
Exemplary damages: Unlawful entry	$1,000.00	Unlawful entry
Exemplary damages: Retaliatory notice	$1,000.00	Retaliatory notice
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,527.00
Total payable by Landlord to Tenant	$2,527.00

Order

Ian McGowan And Robyn McGowan As Trustees Of The McGowan Family Trust must pay Jamayne Wiha Aroha Porter and Lisa Dardenella Coe $2,527.00 immediately.

Reasons

Both parties attended the hearing. The Trust was represented by Mr McGowan.
This tenancy commenced on 18 October 2018 and ended on 7 February 2025.
The tenants seek the following: -Compensation and exemplary damages for the landlord’s failure to maintain the premises. -Exemplary damages for bond not lodged. -Exemplary damages for unlawful entry. -Exemplary damages for a retaliatory notice.

Did the landlord fail to maintain the premises?

The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenants say the flat was mouldy and smelly due a leak from the hot water cylinder and a crack in the wall. They say the roof was leaking above the stove and the stove itself was full of cockroaches from the start, and they could not use it because the temperature could not be controlled. They say that the flat was generally damp and mouldy, and it was due to the landlord’s neglect.
I find that the tenants have not provided sufficient evidence to prove that the landlord breached his obligations. I am satisfied that the landlord responded to and fixed the hot water cylinder leak within a reasonable time. He advised the tenant to turn off the water and came to the premises the following day. The tenants were given access to the hot water facilities in the downstairs flat and the cylinder was replaced within 11 days as noted in the landlord’s diary, and the mould cleaned down.
The tenants were unable to provide any photographs from the start of the tenancy to prove the oven was infested, and the landlord has provided an electrical certificate which shows that it was fully functional.
I accept the landlord’s evidence that the extraction hood would leak in bad weather depending on the wind direction. He made attempts to repair the leak on at least 3 occasions and a builder was brought in to seal and replace the flashings. The tenants were unable to provide any evidence they suffered any detriment and I therefore find no breach in this regard.
This part of the tenants’ claim is dismissed.

Did the landlord fail to lodge the bond?

The tenants claim 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 says he did not know there was any bond as another tenant was managing this tenancy at the start. The landlord says the bond was for the use of that tenant’s furniture and it was returned to the tenants at the end of the tenancy.
I find the landlord has 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) Residential Tenancies Act 1986.
Although the tenancy agreement mentions a bond being required for furniture, I find that the bond should have been lodged with the Bond Centre in any event. While I acknowledge that it was paid back to the tenants at the end of the tenancy without delay, this does not negate the landlord’s lawful obligation to lodge the bond. The bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limits 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.
Bearing in mind that the bond was returned to the tenants, I consider exemplary damages at the low end of the scale to be a just and appropriate award in this case. I therefore make an award of $500.00 exemplary damages.

Did the landlord enter the premises unlawfully?

The tenants claim the landlord has entered the premises without consent or notice. The tenants say the landlord entered on a few occasions because he knew the key entry code. They say he let himself in when one of the tenants was in the shower and he told them he had a right to come in whenever he wanted. They double locked the front door because they felt unhappy and uncomfortable.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord gave conflicting evidence. He says he only ever entered the deck except for one occasion when there was a water leak from the shower which was coming through to this office below. The landlord also says he knocked and usually waited for someone to reply before he entered. He says this was after the third tenant had left and he was in control of her room and had to get access.
I find the landlord has 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) Residential Tenancies Act 1986.
I find that the landlord intentionally entered the premises without permission or notice on at least a few occasions. The third bedroom was part of the wider premises, and the landlord had no right to enter at will. I accept the tenants’ evidence that the landlord told them he had a right to come in whenever he wanted which left them feeling uncomfortable and vulnerable.
Bearing in mind the high public interest in ensuring that landlords give the requisite notice before entering tenants’ homes, the negative effect on the tenants, and that this also constitutes a breach of their quiet enjoyment, I find it just to award $1,000.00 exemplary damages.

Was the 90-day notice retaliatory?

On 21 January 2025, the landlord gave the tenant a notice ending the tenancy on 22 April 2025. The tenants claim the notice was retaliatory as this was less than a week after they gave the landlord a 14-day notice for repairs. The tenants subsequently gave their own notice and left the premises on 7 February 2025.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness, giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.
It is the tenants’ burden to prove that the 90 day notice was motivated wholly or partly in response to the exercise of their rights and complaints to the landlord. However, in this case where there was short a short time between the complaint and the 90 day notice, there is a reasonable inference that the landlord has at least been partly motivated by the tenants’ actions. This puts the evidential onus on the landlord to establish that the complaint was not the reason for the notice.
The landlord says that the notice was not retaliatory, and work needed to be done. The landlord says he later offered to rescind the notice and let the tenants stay while the work was being done, but they gave their own notice.
After considering all of the evidence, I am satisfied it is more likely than not that the 90 day notice was retaliatory, at least in part. I find that the landlord was motivated, to some extent, by the tenants exercising their rights by issuing their 14-day notice. The landlord did not provide sufficient convincing evidence that their reason existed independently, and not because of, the actions of the tenants, and I do not accept that the timing was coincidental. The landlord was unable to provide any evidence that this was urgent extensive alterations, refurbishment, repairs, or redevelopment as required by section 51(2)(f) RTA (now amended). On his own evidence this was more in the nature of a general clean up and improvements therefore there was no genuine reason to end the tenancy. The fact that the tenants gave their own notice has no bearing on whether or not the initial notice was retaliatory.
I therefore find the landlord has committed an unlawful act. After considering all the relevant factors at section 109(3) RTA, I find it just to award $1,000.00 exemplary damages. Filing fee
As the tenants have partly succeeded with the claim, the landlord must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 5158135 — net $2,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$500.00	Bond not lodged
Exemplary damages: Unlawful entry	$1,000.00	Unlawful entry
Exemplary damages: Retaliatory notice	$1,000.00	Retaliatory notice
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,527.00
Total payable by Landlord to Tenant	$2,527.00

Order

Ian McGowan And Robyn McGowan As Trustees Of The McGowan Family Trust must pay Jamayne Wiha Aroha Porter and Lisa Dardenella Coe $2,527.00 immediately.

Reasons

Both parties attended the hearing. The Trust was represented by Mr McGowan.
This tenancy commenced on 18 October 2018 and ended on 7 February 2025.
The tenants seek the following: -Compensation and exemplary damages for the landlord’s failure to maintain the premises. -Exemplary damages for bond not lodged. -Exemplary damages for unlawful entry. -Exemplary damages for a retaliatory notice.

Did the landlord fail to maintain the premises?

The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenants say the flat was mouldy and smelly due a leak from the hot water cylinder and a crack in the wall. They say the roof was leaking above the stove and the stove itself was full of cockroaches from the start, and they could not use it because the temperature could not be controlled. They say that the flat was generally damp and mouldy, and it was due to the landlord’s neglect.
I find that the tenants have not provided sufficient evidence to prove that the landlord breached his obligations. I am satisfied that the landlord responded to and fixed the hot water cylinder leak within a reasonable time. He advised the tenant to turn off the water and came to the premises the following day. The tenants were given access to the hot water facilities in the downstairs flat and the cylinder was replaced within 11 days as noted in the landlord’s diary, and the mould cleaned down.
The tenants were unable to provide any photographs from the start of the tenancy to prove the oven was infested, and the landlord has provided an electrical certificate which shows that it was fully functional.
I accept the landlord’s evidence that the extraction hood would leak in bad weather depending on the wind direction. He made attempts to repair the leak on at least 3 occasions and a builder was brought in to seal and replace the flashings. The tenants were unable to provide any evidence they suffered any detriment and I therefore find no breach in this regard.
This part of the tenants’ claim is dismissed.

Did the landlord fail to lodge the bond?

The tenants claim 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 says he did not know there was any bond as another tenant was managing this tenancy at the start. The landlord says the bond was for the use of that tenant’s furniture and it was returned to the tenants at the end of the tenancy.
I find the landlord has 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) Residential Tenancies Act 1986.
Although the tenancy agreement mentions a bond being required for furniture, I find that the bond should have been lodged with the Bond Centre in any event. While I acknowledge that it was paid back to the tenants at the end of the tenancy without delay, this does not negate the landlord’s lawful obligation to lodge the bond. The bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limits 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.
Bearing in mind that the bond was returned to the tenants, I consider exemplary damages at the low end of the scale to be a just and appropriate award in this case. I therefore make an award of $500.00 exemplary damages.

Did the landlord enter the premises unlawfully?

The tenants claim the landlord has entered the premises without consent or notice. The tenants say the landlord entered on a few occasions because he knew the key entry code. They say he let himself in when one of the tenants was in the shower and he told them he had a right to come in whenever he wanted. They double locked the front door because they felt unhappy and uncomfortable.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord gave conflicting evidence. He says he only ever entered the deck except for one occasion when there was a water leak from the shower which was coming through to this office below. The landlord also says he knocked and usually waited for someone to reply before he entered. He says this was after the third tenant had left and he was in control of her room and had to get access.
I find the landlord has 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) Residential Tenancies Act 1986.
I find that the landlord intentionally entered the premises without permission or notice on at least a few occasions. The third bedroom was part of the wider premises, and the landlord had no right to enter at will. I accept the tenants’ evidence that the landlord told them he had a right to come in whenever he wanted which left them feeling uncomfortable and vulnerable.
Bearing in mind the high public interest in ensuring that landlords give the requisite notice before entering tenants’ homes, the negative effect on the tenants, and that this also constitutes a breach of their quiet enjoyment, I find it just to award $1,000.00 exemplary damages.

Was the 90-day notice retaliatory?

On 21 January 2025, the landlord gave the tenant a notice ending the tenancy on 22 April 2025. The tenants claim the notice was retaliatory as this was less than a week after they gave the landlord a 14-day notice for repairs. The tenants subsequently gave their own notice and left the premises on 7 February 2025.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness, giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.
It is the tenants’ burden to prove that the 90 day notice was motivated wholly or partly in response to the exercise of their rights and complaints to the landlord. However, in this case where there was short a short time between the complaint and the 90 day notice, there is a reasonable inference that the landlord has at least been partly motivated by the tenants’ actions. This puts the evidential onus on the landlord to establish that the complaint was not the reason for the notice.
The landlord says that the notice was not retaliatory, and work needed to be done. The landlord says he later offered to rescind the notice and let the tenants stay while the work was being done, but they gave their own notice.
After considering all of the evidence, I am satisfied it is more likely than not that the 90 day notice was retaliatory, at least in part. I find that the landlord was motivated, to some extent, by the tenants exercising their rights by issuing their 14-day notice. The landlord did not provide sufficient convincing evidence that their reason existed independently, and not because of, the actions of the tenants, and I do not accept that the timing was coincidental. The landlord was unable to provide any evidence that this was urgent extensive alterations, refurbishment, repairs, or redevelopment as required by section 51(2)(f) RTA (now amended). On his own evidence this was more in the nature of a general clean up and improvements therefore there was no genuine reason to end the tenancy. The fact that the tenants gave their own notice has no bearing on whether or not the initial notice was retaliatory.
I therefore find the landlord has committed an unlawful act. After considering all the relevant factors at section 109(3) RTA, I find it just to award $1,000.00 exemplary damages. Filing fee
As the tenants have partly succeeded with the claim, the landlord must reimburse the filing fee.

Tenancy Tribunal case 5158135 — Exemplary damages at Room 30 C1, 30 Waterford Road, Katikati 3129, The Old Mill

At a glance

Tenancy Tribunal case 5158135 — Exemplary damages at Room 30 C1, 30 Waterford Road, Katikati 3129, The Old Mill

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to maintain the premises?

Did the landlord fail to lodge the bond?

Did the landlord enter the premises unlawfully?

Was the 90-day notice retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to maintain the premises?

Did the landlord fail to lodge the bond?

Did the landlord enter the premises unlawfully?

Was the 90-day notice retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions