Exemplary Damages Claim Denied by Tenancy Tribunal

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[2025] NZTT 5170631

TENANCY TRIBUNAL AT NORTH SHORE | TE TARAIPIUNARA RETIHANGA KI ŌKAHUKURA

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

The tenant’s claim is dismissed

Reasons:

1. Both parties attended the hearing.

2. [NAME] seeks orders for exemplary damage

Background

3. The Tribunal previously heard the tenant’s earlier claims in respect to this tenancy and issued a 14-page decision on 20 January 2025.1

4. In that decision, the Tribunal noted:2

[NAME] did not apply for exemplary damages prior to the hearing in accordance with RTA, s 109(1). Exemplary damages are therefore not available.

5. This claim mainly mirrors the earlier claim and seeks exemplary damages.

6. [NAME] submits:

1 [NAME] v [NAME] [2025] NZTT 4870583, 4913633 2 At note 9 of the decision.

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The Tenancy Tribunal decision did not consider the issue of exemplary damages. According to RTA, s 109(1) exemplary damages are subject to the establishment of an unlawful act. As noted above, the facts of unlawful acts by [NAME] were established within the framework of the Tenancy Tribunal decision of 20.01.2025. Moreover, [NAME] intentionally committed the unlawful actions, which follows from the facts established by the Tenancy Tribunal of intentional misleading of the tenant regarding the legality of the tenancy of the premises and its compliance with HHS requirements, as well as from the landlord's statements about the absence of the need to conclude a written lease agreement and issue receipts for payment. In addition, [NAME]'s failure to comply with established standards created both a direct threat to the life and health of me and my family (breach of smoke alarm duties) and made me feel depressed and extremely uncomfortable in a foreign country under psychological pressure and manipulation of laws by landlords.

Therefore, as the most vulnerable party, I ask the Tenancy Tribunal to award the following exemplary damages from [NAME]:

- failure by the landlord to provide a written tenancy agreement (RTA ground s 13(4)), NZD 750;

- a requirement by the landlord to pay rent more than 2 weeks in advance (RTA ground s 23(4)(a)), NZD 1,500;

- failure to provide a receipt for rent (RTA ground s 29(5)), NZD 350;

- breach of tenant's privacy (RTA ground s 38(3)), NZD 3,000;

- failure by the landlord to comply with fire alarms, healthy housing standards, health, and safety requirements (RTA ground s 45(1A)), NZD 7,200;

- actions taken by the landlord to terminate the lease without grounds (RTA grounds, s 60AA), amount 6000 NZD;

7. I note that the amounts [NAME] seeks for exemplary damages are maxima, and that the Tribunal seldom makes awards at or even close to the maxima. Awards are usually made at only a fraction of the maxima.

8. The landlord submits the current claims should be dismissed for being res judicata (already decided).

Legal principles

9. The principle of res judicata is a common law rule that bars parties from bringing claims that have already been decided. Underlying the rule is the desirability of finality in proceedings. Otherwise, cases would continue until the party successively bringing proceedings go the result they wanted.

10. A related principle, the rule against splitting causes of action applies to the extent that [NAME]’s current claim includes some matters which were not the subject of the earlier hearing. That rule requires a claimant to exercise reasonable diligence to bring all its related claims in one hearing.

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11. If a party fails to raise an argument that they could and should have raised in an earlier proceeding, they will generally not be allowed to do so in a subsequent proceeding. Litigation should not be undertaken by instalment.3

Discussion

12. [NAME]’s claim is in substance a claim for exemplary damages for the same factual circumstances that the Tribunal dealt with in its earlier decision. The Tribunal turned its mind to exemplary damages but found they were not available because [NAME] had not applied for them prior to the hearing.

13. If [NAME] considered the decision was wrong he could have appealed the decision or applied for a rehearing. He did not do so.

14. If it is any consolation to [NAME], on the facts as I found them at the hearing, I would not have been inclined to ordering any exemplary damages even if I had considered they were an available remedy.

Conclusion

15. This claim is dismissed.

R Kee

16 May 2025

3 Shaw v Green & Centrepoint Ltd [2023] NZHC 605 at [45].

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: