Published tribunal order
Tenancy Tribunal case 5191852 — Exemplary damages at 20 Victoria Road, New Plymouth, New Plymouth 4310
Decided 22 Apr 2025 · Published 22 Apr 2025 · Application 5191852
Tenant favoured
- Exemplary damages
Order
- No orders apply concerning the publication of this decision.
- The landlord’s notice to terminate the tenancy dated 6 March 2025 is retaliatory and is set aside.
- Marilyn Powell must pay Craig Huffam $2027.00 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing. The tenant attended in person and the landlord attended by telephone as this was requested by her and was granted.
- On 6 March 2025 at 4.29pm the landlord gave the tenant a notice by email ending his periodic tenancy on 8 June 2025.
- The tenant claims the notice is retaliatory. The tenant seeks for the notice to terminate to be set aside and he seeks exemplary damages.
- The tenant also made claims in his application relating to a new rent increase notice dated 6 March 2025 but the landlord has since withdrawn this increase and so this issue no longer needs to be decided. Civil burden of proof
- As explained, as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
- That means that it is for the party bringing the application (in this case, the tenant) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden. Importantly, as noted 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.
- The submissions and evidence given were lengthy. Not everything referred to in the hearing is mentioned in this decision, but the parties should know that it has been considered. Tribunal may declare notice retaliatory
- 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 Residential Tenancies Act 1986 that provides that: (1) This section applies in relation to a notice given by a landlord terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U). (2) The tenant may apply to the Tribunal for an order declaring that the notice was retaliatory on either or both of the following grounds: (a) that, 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 this or any other Act or any complaint by the tenant against the landlord relating to the tenancy: (b) that, in giving the notice, the landlord was motivated wholly or partly by the exercise or performance, or proposed exercise or performance, by the chief executive or any other person of any power or function conferred on the person under this or any other Act in respect of the tenancy or premises. (3) If the tenant makes the application within 28 working days after receiving the termination notice, the tenant may at the same time apply for an order declaring the notice to be of no effect. (4) If the Tribunal is satisfied that either or both of the grounds in subsection (2) apply, the Tribunal must declare the notice to be retaliatory and, if an order is applied for under subsection (3), of no effect. (5) However, the Tribunal need not declare the notice to be retaliatory and of no effect if the Tribunal is satisfied that, in the case of subsection (2)(a), the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (6) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (4) to be retaliatory.
- 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(6) and Schedule 1A Residential Tenancies Act 1986.
- The material inquiry under s 54(1) is directed towards the landlord’s actual motivation in ending the tenancy at the time that it was issued.
- Even though a tenant may have been exercising a right under the tenancy agreement or the RTA against the landlord, or have made a valid and reasonable complaint against the landlord for purported breach of the tenancy agreement or of the RTA, such as on maintenance issues, the Tribunal can only declare the landlord’s notice to be retaliatory if it considers, on the balance of probabilities, that 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, rather than some other reason.
- The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.
- Where there is a short period of time between the tenant exercising a right and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice. It is also important to note that it is still possible for a landlord to give notice when there have been complaints or assertions of rights so long as there is another reason which is proven to be an overriding one over and beyond that complaint or assertion.
- A notice of termination given for only genuine and fair reasons will not be considered retaliatory.
- In Ibrahim v Barfoot & Thompson Henderson TT 662/95, 30 November 1995, a notice to terminate the tenancy was given the day after unsuccessful mediation regarding maintenance of a swimming pool. This was held to be clearly retaliatory.
- The tenant has bought two previous applications to the Tribunal with significant orders being made on 12 November 2024 (Order 1) and 6 March 2025 (Order 2).
- Order 1 dealt with a number of work orders. These were made by consent. It also dealt with other tenant applications including a declaration about the use of the downstairs areas (concerning a room with a window that did not open and shower), a carpet cleaning clause, contents of a Healthy Homes statement and compensation for breach of quiet enjoyment.
- Order 2 dealt with a rent increase notice. The issues were whether the notice was valid and whether the proposed rent was in line with market rent. I found that the notice was not valid and so the market rent claim, despite being heard in detail, did not need to be addressed in the decision.
- The hearing in relation to Order 2 took place on 4 March 2024 (an earlier hearing also took place on 18 February 2025 but the hearing was adjourned to 4 March for parties to gather evidence of market rent) and Order 2 was sent to the parties on 6 March 2025 by email at around 2.56pm.
- The tenant says that the notice to terminate his tenancy was sent around 90 minutes after Order 2 was sent (at 4.24pm). He was also sent a rent increase notice on that day (but that has since been withdrawn).
- The tenant says that the landlord gave this notice because of the complaints he had made to the landlord and the Tribunal applications he made.
- The tenant referred to previous complaints made during the course of the tenancy such as the window in the downstairs room not being openable (this was dealt with in Order 1 – it did not have to open), the retaining wall (see Order 1 – work order), the deck not being safe (referred to orally in both the first and second applications but no order was sought in relation to the issue – the deck was an area excluded from the tenancy agreement and has since been removed), roof repairs/hole in ceiling (not part of a previous order), lighting (see Order 1 - work order), rail (see Order 1 – work order), and an issue with a blind cord and curtain (not part of a previous order).
- The tenant says that the landlord’s attitude is that if it is broken don’t use it, rather than undertaking maintenance.
- The tenant says that the landlord blatantly disregarded the information that was given to the parties at the hearing on 4 March 2025 when I explained that the legislation to set aside a notice because it is retaliatory related to termination notices rather than otherwise valid rent increases. The tenant says that the landlord has been hunting for a new tenant because this is shown by an email to Property Scouts dated 28 February 2025 describing her ideal tenant.
- The landlord says that the termination notice is not retaliatory. She insists that the termination notice was given so: (a) she could renovate the kitchen, overall décor and flooring to achieve a higher rental price of $700 per week given the desirable location of the home (some quotes and plans post-dating the notice of termination were provided) and (b) to get clarity as to the date the tenancy would end in order to start renovations because, the tenant said at the last hearing on 4 March 2025, that he did not want to stay and his plan was to leave. She says the email sent to Property Scouts on 28 February 2025 was to get a market rent appraisal after I encouraged this at the first hearing on 18 February so there was evidence for the market rent claim.
- The landlord says that she complied with the work orders made in Order 1 which she had agreed to in any event. They were all improvements to her property that she saw as a benefit so did not consider it to be a burden to do this work. She notes that she had succeeded in relation to the Tribunal adopting her view in relation to the use of the downstairs area/shower which had taken up the majority of the hearing time at the first hearing. The tenant had offered to solve the problem with the blind/curtain at the time himself and that the roof had been fixed.
- The landlord says that she sent out a new rent increase notice following the decision in Order 2 which found the previous rent increase notice to be invalid.
- She says that the termination notice she gave, on the same day, was a result of the tenant saying he was going to leave at the last hearing because she needed a date to organise the tradespeople for her renovations.
- She says that after she heard the evidence that the market rent of her property was low from the Rent Shop appraisal obtained by the tenant, she wanted to make improvements to get a higher rent. She says that once the property is renovated the tenant could have a right of first refusal to return if he wanted.
- The tenant says that when he said he would be leaving the property at the last hearing he had meant on his terms when he had located a new place to live, and the landlord was now trying to dictate when he would leave. He wants to leave because of her and not the property itself. There was also a disagreement as to whether the work order made in Order 1 had been fulfilled relating to the electrics and the dimmer switch. The tenant did not prove an ongoing issue in relation to this or that the landlord had been told of any issue since the electrician had attended (the tenant says he hadn’t actually used it). In any event, I find nothing turns on this. Analysis
- The termination notice was issued very shortly after Order 2 was sent to the parties by the Tribunal.
- This immediately raises the concern that the notice was motivated, at least in part, by the tenant’s participation in the Tribunal process and the outcome and impact of the decision in Order 2.
- I am satisfied at the time of giving notice that that landlord was partly motivated (or partially incited or impelled as set out in Easton v Marks Auckland TT 229/87, 27 May 1987) by the tenant taking recent action at the Tenancy Tribunal. I say this because of the proximity in timing between Order 2 and the landlord’s notice.
- I consider that the landlord has provided insufficient evidence to show that she was not motivated, even in part, by the tenant exercising his rights in relation to the tenancy to make the notice genuine and fair. The landlord’s reasons were not persuasive enough to explain or justify the timing of the termination notice.
- I am not persuaded that the whole reason the termination notice was issued was due to the desire of the landlord to increase the rent she thinks may be achievable of $700 following renovations, or to have certainty of a date upon which renovations might start. To accept these reasons as wholly the motivation for the notice would ignore the previous issues traversed between the parties and the proximity of Order 2 and the notice to terminate. The circumstances point to a strategy to push the tenant out of the tenancy premises. I am not persuaded that the landlord’s offer for the tenant to have the right to move back in after renovations are complete is genuine but rather offered in the context of these proceedings.
- The landlord's stated reasons were not supported by contemporaneous evidence that would justify issuing the notice immediately after Order 2. While some quotes and plans for renovations were submitted, they post-date the termination notice and do not sufficiently justify the timing of the action taken. There is no evidence to suggest the landlord had any intention of renovating the kitchen, flooring or décor prior to the notice. This undermines the credibility of the reasons offered.
- Further, if a landlord is going to terminate a tenancy for legitimate reasons it is most unusual to impose a significant rent increase on a tenant shortly beforehand and then take a very active role in a lengthy market rent application, as the landlord did here, just two days before the termination notice was given.
- For the sake of completeness, I mention here that I do not find the tenant’s submission that the landlord’s email to Property Scout shows a desire for the landlord to get a different tenant in February. I accept this was sent by the landlord simply to get a market rent appraisal for the Tribunal.
- I do not consider the action taken by the tenant was frivolous or vexatious.
- I conclude that it is more likely than not that the termination notice is a retaliatory notice. I make an order declaring it to be off no effect. I find the landlord has therefore committed an unlawful act.
- 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.
- Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
- I award the tenant $2,000 in exemplary damages as a result of this breach. This is just under a third of the maximum.
- This is because: a. I accept the effect of serving the notice has had a stressful impact on the tenant. I accept that it has caused him anxiety and, despite wanting to move out of the home when he can, he is constrained by the present housing market. It is in the tenant’s interest to receive exemplary damages for the unlawful act committed against him. b. Further, the Residential Tenancies Act is designed to set out the rights and responsibilities of both tenants and landlords. Retaliatory terminations undermine the principle that tenants should be able to exercise their legal rights, such as making complaints about maintenance or bringing a case to the Tribunal without the fear of being punished by eviction. It is in the public interest and in the interest of tenants to deter such conduct. If retaliatory notices were allowed to go unchecked, landlords could effectively silence tenants by evicting them whenever they assert their legal rights. This would create an environment where tenants are too afraid to speak up about issues. c. I am not aware of any other orders of this nature concerning this landlord. The landlord understood the tenant was going to be ending the tenancy in due course and the tenant remains in occupation. Some of the complaints raised by the tenant were not successful. Suppression and filing fee
- The tenant has been successful and so I award reimbursement of the filing fee.
- Neither party wants me to consider suppression of identifying details, so I do not need to consider this.