Tenant's Claims for Damages Dismissed by Tenancy Tribunal

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[2025] NZTT 5250059

TENANCY TRIBUNAL AT CHRISTCHURCH | TE TARAIPIUNARA RETIHANGA KI ŌTAUTAHI

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The [COMPANY] is to pay the bond of $700.00 to [NAME] immediately.

2. All other claims are dismissed.

Reasons:

1. Both parties attended the hearing. Both were represented; [NAME] by [NAME] and [NAME] by her daughter in law ([NAME])

2. [NAME] has applied for refund of the bond, which the [NAME] has agreed to. The bond is released accordingly.

3. [NAME] has also made claims for compensation and exemplary damages for alleged breaches of the [NAME] obligations. The written application is not specific and refers to breaches in very general terms.

4. I took some time at the start of the hearing to attempt to understand [NAME]’s claims and the issues for determination at the hearing. These can be summarised as issues with the bond, breaches of quiet enjoyment or unlawful

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access, reimbursement for gardening costs and an issue with a notice to terminate.

General Principles 5. The Tribunal’s role was well summarised in Birch v Otautahi Community

Housing Trust [2022] NZTT 4207456 at [8], as follows:

“The Tribunal is an adjudicative body. It is not a forum for general complaint. It is not a complaints service. It is not an investigative body. And it does not mediate disputes. It looks to what is set out in an application by [NAME] or a tenant; hears evidence and submissions from both parties; and makes a decision that is binding on the parties.”

6. The Tribunal has jurisdiction to determine any dispute between [NAME] and a tenant in accordance with the Residential Tenancies Act 1986 (RTA). See s77 RTA. The Tribunal may make orders for compensation and for exemplary damages. See s78 RTA.

7. Compensation is awarded for actual losses arising from a proven breach of the other party’s obligations. Compensation may also be awarded for less tangible effects of established breaches such as loss of enjoyment or amenity of the tenancy. See Tenants v Singh [2022] NZTT 4315225 for the approach to quantifying compensation for “general damages”.

8. Exemplary damages may be awarded, at the Tribunal’s discretion, where a party establishes that the other has intentionally committed an “unlawful act” as defined by the RTA. See s109 and schedule 1A RTA. Exemplary damages are intended to punish or deter.

9. A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. They must prove that the other party has breached its obligations and the loss (or consequence) they have suffered because of that breach. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

10. The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated:

“…[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”

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Bond Issues

11. [NAME] has applied for a refund of the bond. The [NAME] has agreed to that. The bond is released accordingly.

12. [NAME] also claims that [NAME] has breached her obligations on receipt of the bond and seeks exemplary damages. The tenancy started in September 2017 and ended in May 2025. The bond was not lodged until shortly before the end of the tenancy.

13. [NAME] must send any bond payment to the [COMPANY] within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

14. 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.

15. The [NAME] did not lodge the bond within time. I find that she has committed an unlawful act.

16. 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.

17. The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).

18. [NAME] is elderly. Her daughter in law explained that these premises had been her home and she moved, in 2017, to support ill family members. [NAME]’s position is that she is not an experienced [NAME] and understood that the [COMPANY] provided a service for looking after bonds but did not understand that there was a requirement for bonds to be lodged.

19. [NAME] and [NAME] submitted that [NAME] is an experienced [NAME] and claimed that she had other tenants at the property. They invited me to call a neighbour, “[NAME]”, who could confirm that. They did not know [NAME]’s last name, and I declined to phone a witness whose identify I could not verify and who I could not view in person.

20. In any event, I find that the failure to lodge the bond was an oversight, rather than an intentional act, having regard to the upheaval [NAME] was experiencing at the time.

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21. This claim for exemplary damages is dismissed. However, [NAME] is now on notice of her obligations and risks an award of exemplary damages being made if there are similar claims against her in the future.

Unlawful Entry and/or Breach of Quiet Enjoyment

22. [NAME] claims the [NAME] engaged in threatening and intimidating behaviour throughout the tenancy. She says that [NAME] acted to belittle her and that she never felt as if the premises were her home. Conversely, she also told me that she loved living at the property.

23. [NAME] claimed that [NAME] failed to give notice of visits, acted as if she could call in whenever she liked, and [NAME] felt as if [NAME] “shut down” any of her concerns. She also said that [NAME] repeatedly referred to the property as her home and said that she could make [NAME] leave whenever she liked.

24. I have treated these complaints as claims for either unlawful entry or breach of quiet enjoyment.

25. [NAME] 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.

26. 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.

27. [NAME] 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.

28. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

29. 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". [NAME] v [NAME], CIV-2009-[PHONE], DC Hamilton, 26 February 2010.

30. [NAME] was very vague in her evidence and submission. I gave her extensive latitude and direction to try to understand precisely what it was about [NAME]’s alleged behaviour that caused [NAME] to feel uncomfortable, intimidated, harassed and bullied. She was unable to provide me with clear and specific examples.

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31. [NAME] played an audio recording of a telephone conversation between [NAME]/[NAME] and [NAME] from April 2025. [NAME] did not know she was being recorded. [NAME] maintained that the recording was an example of [NAME]’s behaviour throughout the tenancy.

32. The Tribunal may call for and/or receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law (see s 97(4) RTA).

33. In He v [NAME] (DC Waitakere, CIV-2013-090-455, 23 October 2013) the District Court held that a covert recording was relevant and admissible. [ADDRESS] said:

[20] The right of silence preserved by s 23 of the New Zealand Bill of Rights Act 1990 applies to protect a person accused of criminal conduct from self incriminating [sic]. Even in criminal cases Courts have been willing to admit covertly recorded statements if voluntarily given. Accordingly there is no blanket ban even in that jurisdiction especially in those cases where the statements are not made to a person in authority such as a police officer …

[21] Accordingly the evidence of the recording itself was in my view directly relevant for a point in issue in the case and did not require the consent or even the knowledge of [NAME] as a pre-condition to its admissibility. …

34. The overriding principle is one of fairness to both parties. Where a recording of a conversation is made without the knowledge of the other party, this is a factor which can be considered in determining the weight given to the evidence.

35. After listening to the recording, I do not find that it supported [NAME]’s claims. She and [NAME] had been discussing another matter when [NAME] took over from [NAME]. If the tone of the conversation can be described as aggressive from that point, it was not because of [NAME]’s approach or demeanour.

36. At the hearing, [NAME] denied visiting the property without notice. In fact, she hardly went there at all as she was confident that [NAME] was taking good care of it. Mrs [NAME] acknowledged that sometimes [NAME] didn’t visit for over a year. [NAME]’s evidence was that she responded to requests for repairs or maintenance but otherwise didn’t really engage with [NAME].

37. Despite numerous requests for [NAME] to provide examples of the behaviour that made her feel uncomfortable, she was unable to do so. She said that she didn’t realise she would have to go into that level of detail. At the end of [NAME] and [NAME]’s evidence and submissions, I am unable to discern any tangible evidence to support a finding that [NAME] has either entered the premises without notice or has breached [NAME]’s right to quiet enjoyment. These claims are dismissed.

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Reimbursement of Gardening Invoices

38. [NAME] claimed for reimbursement of tree pruning and garden maintenance invoices.

39. [NAME] had an issue with a note provided at the start of the tenancy which recorded that she was not to cut trees and shrubs. That note was consistent with the usual obligations; a tenant is responsible for keeping a garden tidy and mowing lawns and the [NAME] is responsible for maintenance such as pruning of large trees and shrubs.

40. [NAME] said that she was happy for pruning to be done if [NAME] had requested it. [NAME]’s evidence was that she did not want [NAME]’s family to attend the property to prune and complete garden maintenance, so arranged for this herself, without advising [NAME].

41. [NAME] has not breached any obligation in relation to the trees and shrubs. [NAME] is not entitled to reimbursement of the pruning invoices. The claim is dismissed.

Notice to Terminate

42. [NAME] took issue with a Notice to Terminate the tenancy dated on 4 February 2025, and delivered to her letterbox that day. It was not clear what order [NAME] was seeking in respect of the Notice, as the tenancy has now ended.

43. [NAME] intends to move back into the premises once some renovation work is completed. The Notice date 4 February records [NAME]’s intention.

44. The Notice period to end a periodic tenancy is (at least) 42 days’ if it is being ended because the owner, or their family member intends to live in as their main residence, within 90 days’ of tenancy ending and will remain living there for at least 90 days.

45. [NAME] gave 85 days notice to end the tenancy. [NAME] claims that the notice was deficient in that it did not state an end date. The Notice of Termination states that [NAME] would like [NAME] to vacate “by the end of April.”

46. [NAME] was attempting to give [NAME] more than the minimum 42 days notice as she is aware that it can be difficult to find a rental. [NAME] and [NAME] submitted that [NAME] should have clearly specified an end date for the tenancy. In my view, she did; it was the end of April. The end of April is 30 April; the end date can easily be ascertained from the letter.

47. [NAME] did not raise any issue with the Notice to Terminate until a telephone call on 14 or 15 April (the recorded conversation referred to above).

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In that conversation, [NAME] asserted that the Notice was deficient and said [NAME] would not be moving. [NAME] noted that the end of April is the last day of April and said, “it isn’t May”. I agree. I would have had more difficulty if [NAME] had said “mid-April” or “around May”, but the “end of April” is finite and definite.

48. [NAME] has not established that there was any deficiency with the Notice to Terminate dated 4 February 2025, nor did she identify the remedy sought (if a defect had been proved). This claim is also dismissed.

49. Having regard to the respective degrees of success of the parties, I decline to reimburse the Tribunal application fee or grant [NAME]’s application for suppression.

[NAME]

06 June 2025

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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 [NAME] 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: