What was the outcome of Tenancy Tribunal case 5203091?

The tribunal order states: By declaration, the agreement between the tenant and the landlord, in relation

How much money was awarded in case 5203091?

Compensation: - Toilet Seat: $20.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5203091?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5203091?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11982850-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5203091?

The tribunal order states: By declaration, the agreement between the tenant and the landlord, in relation

How much money was awarded in case 5203091?

Compensation: - Toilet Seat: $20.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5203091?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5203091?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11982850-Tenancy_Tribunal_Order.pdf.

44 a Crane Street, Mount Maunganui, Mount Maunganui Tenancy Tribunal Case 5203091 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5203091 — net $1,137.00 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
Reimbursement of bond	$590.00	Reimbursement of bond
Compensation: - toilet seat	$20.00	- toilet seat
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,137.00
Total payable by Landlord to Tenant	$1,137.00

Claims and awards in Tenancy Tribunal application 5203091 — net $1,137.00 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
Reimbursement of bond	$590.00	Reimbursement of bond
Compensation: - toilet seat	$20.00	- toilet seat
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,137.00
Total payable by Landlord to Tenant	$1,137.00

Order

By declaration, the agreement between the tenant and the landlord, in relation to the lower level at 44a Crane St, Mount Maunganui is a residential tenancy subject to the Residential Tenancies Act 1986.
Brian Millar and Joanne Millar must pay Jamie Mathew Phillips $1,137.00 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
Ms Millar attended by phone on behalf of both landlords.
The tenant claims: a. Exemplary damages for the bond not being lodged. b. Refund of the balance of his bond of $590. c. Payment of his invoice to the landlord for repairs. d. Orders in respect of Healthy Homes Standards. e. Compensation in relation to a failure to maintain the premises -15% of rent. f. Exemplary damages for failure to maintain.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“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 1 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.

JURISDICTION

1 Kaipo v Clarke & McCarthy (DC) TT233/02,

The landlord says the Tribunal does not have jurisdiction to determine this matter. Therefore, the preliminary matter I must determine, is whether the Tribunal has jurisdiction to consider this claim. Questions of jurisdiction are fundamental and must be decided before the Tribunal can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then the Tribunal cannot proceed to hear the case.
The Tribunal can only consider disputes in relation to residential tenancies which fall within the RTA between a landlord and a tenant or between a landlord and the guarantor of a tenant. 2
The RTA sets out the following relevant definitions: a. landlord in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement. b. tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement. c. residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. d. tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy. e. premises is defined as including: (a) Any part of any premises; and (b) Any and appurtenances, other than facilities; and (c) Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land. 2 See section 77 (1) (a) - (b) of the RTA. f. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises. 3
There is a statutory presumption that the RTA will apply to all residential tenancies, unless specifically excluded. 4 The Act sets out several cases which are excluded from the RTA. 5 While the RTA confirms that certain cases may be an ‘excluded tenancy’, the RTA also confirms that the parties can agree to contract back into the RTA in writing. 6 Where a party says that the RTA does not apply, that party must establish the facts upon which it is claimed that the RTA does not apply. 7
In this case the landlords said the tenant was a flatmate of the head tenant that occupied the upstairs premises.
I consider the definition of “flatmates” set out by the District Court in Musson v Dobrisek 8 is helpful: [22]By "flatmates" I understand a co-operative arrangement whereby, in a functional sense, all occupants are on same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens. However, the legal position of people quite legitimately described as flatmates can vary considerably:
The owner may share occupation with others who pay him rent. The others may be tenants of the owner or mere licensees.
A tenant may hold the tenancy of the whole dwelling and arrange for others to share occupation with him or her. Again, the others may be subtenants or mere licensees of the head tenant. The head tenant may make a profit, or subsidise his or her own rent, by charging proportionately more of the rent to the other occupants. He or she is also at risk of loss if there are vacancies.
A group of people may take a joint tenancy of the dwelling, with the intention (not always achieved) that incoming tenants would replace outgoing ones vis-a-vis the landlord so that they all have a liability for rent to that landlord.... ...[24) It follows that the use of the word "flatmate" does not in itself define the nature of the legal relationship between a flatmate and any landlord. The word is no more 3 Section 2 of the RTA. 4 See section 4 of the RTA. 5 See section 5 of the RTA. 6 See section 8 of the RTA. 7 See section 10 of the RTA. 8 Musson v Dobrisek CIV-2006-032-36, 5 May 2006 than a convenient label reflecting a functional reality; and it remains necessary to ascertain the legal nature of the relationship on the basis of the evidence.
The landlord says the tenant is a flatmate of their other tenant, Ms C (who I will refer to as “Ms C”). There is no evidence that Ms C has entered into a flatmate agreement with the tenant. In addition, as I set out further below, I am not satisfied that Ms C and the tenant occupied the same premises.
On 17 January 2025 the landlord signed a variation of a tenancy agreement (“variation agreement”) with the tenant. The variation agreement records that all new tenants are to sign and lodge a new bond through the landlord and that this would mean the new tenant is subject to the terms of the existing tenancy agreement. I consider that the landlords granted the tenant a tenancy pursuant to the variation agreement.
By declaration I find that the tenant is subject to a residential tenancy to which the RTA applies, and the Tribunal has jurisdiction. I gave this decision to the parties at the hearing and proceeded to hear the tenant’s claims.
There is no dispute that the tenancy for the tenant has ended in relation to the downstairs floor of the premises. However, as I understand it the tenancy of Ms C, on the upstairs floor, continues.
The further issue I must consider, which arose during the hearing, is whether this is one tenancy or two separate tenancies. That is whether the tenancy relates to the whole home or whether the tenant rents only the downstairs floor.
The tenant says he lived separately and exclusively from Ms C.
The landlord says the tenant lived in the same premises as Ms C
In Harding v Schellevis & Ors 9 Justice Walker in the High Court, in considering whether the s 5(1)(n) exemption applied in that case, determined that part of the premises may be a separate premise. Justice Walker said in that case: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared 9 Harding v Schellevis & Ors [2021] NZHC. spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. (emphasis added) The relevant premises is instead the functionally independent granny flat.”
I consider these factors relevant to the issue here as to whether the tenant’s premises and tenancy is separate to that of Ms C’s.
The tenant says that he and Ms C lived separately of each other. The property is two levels. The tenant says Ms C resides in the upstairs space. Text messages dated 24 January 2025 between the landlord and tenant refer to Ms C being upstairs, implying she lives separately.
The tenant says he resided in the downstairs space. The tenant provided a video of the downstairs premises. There is a bathroom, kitchenette, separate bedrooms and living area.
The variation agreement records Ms C is to relay maintenance issues in relation to the upstairs premises to the landlord and the downstairs premises maintenance issues are to be relayed to the landlord by the tenant. This is indicative of the separate nature of the premises and that Ms C and the tenant lives separate and independent of each other. I consider the term of the variation agreement illustrates the landlord’s knowledge of the separate nature of the tenant’s living situation.
The tenant paid a “new bond” to the landlord in cash. The landlord says this was on paid to Ms C as the head tenant. The tenant says he paid his rent to Ms C who on paid the rent to the landlords. The tenant was to pay outgoings to Ms C, although he disputed that this was agreed to.
When the tenant vacated, he cleaned and left the bottom floor clear of all belongings and left the keys on the kitchen bench. The video provided by the tenant shows he provided vacant possession of the premises at the end of the tenancy.
The landlord said they rented the one premises to the tenants and how they lived was not something they were involved in.
While the tenant paid his rent to Ms C, I consider that the tenant’s separate occupation of the downs stairs premises constitutes a separate residential tenancy to that of Ms C’s. The result of this finding is that I find that the bond paid by the tenant is separate to that of Ms C’s.

TENANTS CLAIMS

The Tribunal may award compensation to a party for losses arising from a proven breach or breaches by the other party of their statutory responsibilities under the RTA. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell 10 the Court of Appeal 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 under the RTA. Before the Tribunal may award exemplary damages, the Tribunal must take into account the following factors: a.the intent of the person in committing the unlawful act, b.the effect of the unlawful act, c.the interests of the landlord or the tenant against whom the unlawful act was committed, d.the public interest, e.whether it is just to make the award. 11
The maximum level of exemplary damages that can be ordered are set out in Schedule 1A of the RTA. The Tribunal’s usual approach to exemplary damages is to award one third of the maximum unless there are aggravating or mitigating factors in play. 12
The District Court has confirmed in the appeal of Ministry of Business, Innovation and Employment v Hillis Shearing Limited 13 , that exemplary 10 Auckland City Council v Blundell [1986] NZLR 732(Cooke P) 11 Section 109 of the RTA. 12 Wellington Property Management Ltd v Hardie [2022] NZTT 4399281 4374781. 13 Ministry of Business, Innovation and Employment v Hillis Shearing Limited [2024] NZDC 27583 damages under the RTA are ordered on a global basis, rather than separately for each and every breach under the same section of the RTA.

BOND NOT LODGED

The tenant claims 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. 14 Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. 15
The variation recorded all new tenants are to sign and lodge a new bond through the landlords. The change of tenant form records the tenant paid $2,000.00. The landlords have not lodged the tenant’s bond in the tenant’s name. I find the landlords have committed an unlawful act.
Landlords are required to know the law. The requirement to lodge the bond is so fundamental that I find the landlord has acted intentionally by not doing so.
The bond belongs to the tenant. It is vital that the bond money is protected by the Bond Centre so that it can be released in accordance with an agreement between the parties or Tribunal order at the end of the tenancy. There is a public interest in bonds being lodged in the name of the current tenant. The landlord is aware of the obligation to lodge the bond but did not ensure the bond paid by the tenant was lodged with the Bond centre in the tenant’s name.
In having regard to these factors, I make an order of $500 exemplary damages for the landlord’s failure to lodge the tenant’s bond.

REIMBURSEMENT OF BALANCE OF THE BOND

The tenant claims the balance of the Bond of $590.00.
The landlord said they have a claim against the bond but they have not filed a counterclaim with Tenancy Services. 14 See section 19(1) Residential Tenancies Act 1986. 15 See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlords have not filed a counterclaim the balance of the bond (held by the landlords) is refunded in full to the tenant.

HEALTHY HOMES STANDARDS

The tenant had claimed in the application form that the landlord has breached their obligations as it relates to the Healthy Homes Standards. The RTA requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”). 16
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. 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.
It became apparent at the hearing that the tenant’s claim was not in relation to a breach of the HHS but rather a failure to maintain the bathroom toilet and upstairs shower pipe.

REASONABLE STATE OF REPAIR

The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986. Under section 45, a landlord is required to provide and then maintain the property in a reasonable state of repair, taking into account the age and character of the building. 17 Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 18
The tenant claims compensation, exemplary damages and payment of his invoice in relation to three alleged breaches of s 45. 16 See Section 45(1)(bb) of the RTA 17 See section 45 (1) (b) of the RTA. 18 See section 45(1A) and Schedule 1A RTA.
Section 45 (1)(d) RTA provides that the landlord must compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where— (i) the state of disrepair has arisen otherwise than as a result of a breach of the tenancy agreement by the tenant and is likely to cause injury to persons or property or is otherwise serious and urgent; and (ii) the tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so.
The tenant invoice (on a quote form) was for $441.35 for repairing a leak in the bathroom, repairing a leak in the garage and repairing the toilet seat, which he invoiced the tenant on 29 January 2025. I address this invoice further below. Toilet seat
The tenant says there was a cracked toilet seat in the bathroom.
The tenant provided a photograph of the toilet seat showing that it had a crack in it. The landlord disputed the claim and say they were not informed of the damage. I find it more likely than not that the toilet seat was cracked at the commencement of the tenancy, based on the photograph provided by the tenant.
As best I can assess the toilet seat was cracked from the commencement of the tenancy, 16 January 2025 until the date of the tenant’s invoice, 29 January 2024 (approximately two weeks). There is insufficient evidence that the state of disrepair was serious and urgent and there is insufficient evidence the tenant informed the landlord of the damaged toilet seat and allowed them a reasonable opportunity to repair the toilet seat. Although I also note the damage should have been evident at the commencement of the tenancy.
I decline to award reimbursement of part of the tenant’s invoice in relation to the toilet seat for the reasons above and as it not been itemised and a receipt for the toilet seat was not provided.
However, The tenant should be compensated for the toilet seat not being in a reasonable state of repair. In assessing a fair level of compensation, I consider the following factors are relevant: the short period of inconvenience to the tenant and the short term of the tenancy. I consider $20 reasonably compensates the tenant in respect of this claim. I consider there to be insufficient evidence of intent in this case for the Tribunal to award exemplary damages in relation to a failure to maintain, since it has not been shown that the landlord intended to fail to maintain the toilet seat. Bathroom toilet leak
The tenant says the bathroom toilet was leaking from the start of the tenancy. The tenant said this was a persistent issue. The tenant has provided a photograph from one occasion to show that the toilet leaked, however it is not particularly clear that the leak is from the toilet.
The tenancy commenced on 16 January 2025 and the tenants invoice indicated he attended to the repairs on or before 29 January 2025.
The landlord says she did not authorise the repairs and felt pressured by the tenant to be paying him to attend to repairs. The landlord also said that they had difficulty arranging for their usual plumber to attend at the property to assess and complete repairs due to communication issues with the tenant. The landlord provided messages between herself and the tenant as evidence of the lack of communication from the tenant.
I consider there is insufficient evidence of a persistent leak from the toilet. I am not satisfied that the tenant gave the landlord a reasonable amount of time to assess and attend to the repair, if required. I am also not satisfied that the tenant has provided sufficient evidence to support a claim of compensation. I dismiss the claim for compensation and exemplary damages in relation to this claim. Upstairs shower leak
The tenant claims the upstairs shower leaked due to a fault in the pipe.
The tenant says the upstairs shower leaked into the garage and he attended to repairing it. He seeks compensation, payment of this aspect of his invoice and exemplary damages in relation to this breach.
There is no documentary evidence of the upstairs shower leaking into the garage and the photographs do not show an area of damage resulting in a leak. I dismiss the claim in respect of the shower leak as there is insufficient evidence in support of this claim.

FILING FEE

Because the tenant has been partly successful with the claim, I have reimbursed the filing fee.

SUPPRESSION

Neither party sought name suppression.

Tenancy Tribunal case 5203091 — Exemplary damages at 44 a Crane Street, Mount Maunganui, Mount Maunganui

At a glance

Tenancy Tribunal case 5203091 — Exemplary damages at 44 a Crane Street, Mount Maunganui, Mount Maunganui

At a glance

Award balance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

JURISDICTION

TENANTS CLAIMS

BOND NOT LODGED

REIMBURSEMENT OF BALANCE OF THE BOND

HEALTHY HOMES STANDARDS

REASONABLE STATE OF REPAIR

FILING FEE

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

JURISDICTION

TENANTS CLAIMS

BOND NOT LODGED

REIMBURSEMENT OF BALANCE OF THE BOND

HEALTHY HOMES STANDARDS

REASONABLE STATE OF REPAIR

FILING FEE

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions