Tenant's Claims for Damages Dismissed by Tenancy Tribunal

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[2025] NZTT 5176720

TENANCY TRIBUNAL AT WAITAKERE | TE TARAIPIUNARA RETIHANGA KI WAITĀKERE

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. By way of declaration, the notice issued by [NAME] on 31 January 2025 is declared lawful. The tenancy of [NAME] at [ADDRESS], [POSTCODE] will terminate at 11:59pm, Friday 2 May 2025.

2. [NAME]’s claims for compensation and/or exemplary damages are dismissed.

Reasons:

1. Both parties attended in-person for the hearing.

The tenancy

2. The tenancy commenced on 8 February 2023. [NAME] is the sole tenant named on the tenancy agreement, however, [NAME]’s niece and her family occupy the premises. [NAME] does not live at the property, but lives on the same street.

3. The landlord confirmed he was aware, prior to the parties entering into the tenancy agreement, that [NAME]’s niece would be living at the property. Essentially, there was agreement between the parties that [NAME] could sublet the premises to his niece.

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4. The tenant filed two prior applications in relation to the same tenancy.1 The two prior applications were heard together and a decision was issued on 11 December 2024.2

5. Pursuant to that decision, the landlord’s notice of termination issued on 6 September 2024 was found to be lawfully given, however it was declared of no effect on the basis that the Tribunal’s order required the landlord to carry out specified repairs on the property by 17 January 2025, and also because the date for termination under the 6 September 2024 notice had passed by the date of the hearing.3

6. On 31 January 2025, the landlord served the tenant with a notice to terminate the tenancy. The notice served by email advised the tenants that they had 90 days to vacate the premises. The email states the “move-out date” will be 2 May 2025.

The tenant’s claims

7. The tenant seeks the following orders:

a. Compensation and/or exemplary damages for the landlord’s breach of s48(4)(a) of the Residential Tenancies Act 1986 (RTA), by entering the premises without giving the required notice on two occasions:

i. 10 September 2024; and

ii. 7 January 2025.

b. Compensation and/or exemplary damages for the landlord’s breach of s38 of the RTA on the above two dates in that, on the same two occasions, the landlord breached the tenant’s quiet enjoyment of the premises.

c. Compensation and/or exemplary damages for the landlord’s breach of s19(2) of the RTA by failing to lodge the bond within 23 working days.

d. Declaration that the notice of termination served 31 January 2025 is retaliatory and should be declared of no effect.

8. The landlord denies all of the tenant’s claims. The landlord accepts that he failed to lodge the bond within the required time but says it was not done deliberately or intentionally and he therefore denies liability for any compensation and/or exemplary damages.

9. At the hearing, the tenant also sought clarification regarding the outgoings a tenant is liable for in relation to water. As discussed during the hearing, a tenant

1 [2024] NZTT 4997948, 5011753. 2 The decision is subject to an appeal brought by the tenant in the District Court. 3 See paragraph [43] of [2024] NZTT 4997948, 5011753.

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is responsible for the charges directly attributable to a tenant’s water consumption. The landlord is responsible for any fixed charges relating to water supply.

10. This is set out at s39 of the RTA which states: (3) The tenant is responsible for all outgoings in respect of the premises that are

exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.

(4) Without limiting the generality of subsection (3), the tenant is responsible for the following charges, incurred during the tenancy, in respect of the premises:

(a) electricity and gas:

(b) telephone and Internet:

(c) supply of water if the water supplier charges for water provided to the premises on the basis of consumption.

11. The tenant confirmed they did not wish to puruse a claim in relation to the payment of water outgoings, they only wished to seek clarification as to each parties’ responsibilities.

Burden and standard of proof

12. The relevant law that applies is found in the RTA.

13. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.

14. That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction 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.

15. 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.

16. As noted by the District Court 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.

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Exemplary damages

17. In the tenant’s claim, the Tribunal must consider claims for exemplary damages. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said:

Exemplary damages 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.

18. Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.

19. Section 109 of the RTA relates to exemplary damages and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to:

a. The intent of the person committing the unlawful act.

b. The effect of the unlawful act.

c. The interests of the landlord or tenant against whom the unlawful act was committed.

d. The public interest; and

e. Whether it is just to make the award.

20. The maximum levels of exemplary damages are set out in Schedule 1A of the RTA.

Unlawful entry by landlord

21. [NAME] claims the landlord entered the premises without consent or after giving the required notice on two occasions.

22. 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 specified purposes under the RTA. Relevant to this matter, a landlord may enter for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry. See section 48(1) and (2)(d) of the RTA.

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23. 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 of the RTA.

24. The tenant claimed both compensation and exemplary damages in respect of the landlord’s unlawful entry onto the premises. The application form states the tenant seeks compensation of $80,000 for the breaches, and also $100,000 for stress related to those breaches.

25. The tenant did not produce evidence to support the tenant’s claim for $80,000 in compensation, or how that figure was reached (nor for the claim of $100,000 for related stress). The tenant did not identify any loss suffered by the tenant, or his sub-tenant, who occupied the premises.

26. Given this, I approach the claim in relation to unlawful entry as a claim for exemplary damages.

27. In relation to the entry on 10 September 2024, the tenant says that on Sunday 8 September 2024, he received a text message from the property manager [NAME] asking to come to the property on Tuesday 10 September 2024 to repair the clothesline and two fences.4

28. The tenant says the [NAME] came to the property on Tuesday 10 September 2024 at 7am. The tenant does not occupy the premises. He says his niece, who occupies the premises, told [NAME] that the contractor arrived at that time. The tenant says he came to see the contractor from his property on the same street.

29. The landlord says the correct notice was given by his property manager.

30. I am not satisfied the tenant has established, to the requisite standard, that the landlord entered the premises without giving the required notice. The text message received on Sunday 8 September 2024 was more than 24 hours before the intended entry.

31. As regards the time of entry, I am not satisfied it is more likely than not that the contractor arrived before 8am on 10 September 2024. The tenant did not call evidence from his niece, who occupies the premises, nor from the contractor who attended the premises on that day. The only evidence received was the tenant’s second-hand evidence that the contractor knocked on the door at 7am. Given the tenant was not occupying the premises at the time, I am not satisfied the tenant has discharged the burden of proof.

32. In relation to 10 September 2024, I find the landlord did not commit an unlawful act.

4 A copy of the text message was not filed prior to the hearing. During the hearing, [NAME] was provided the opportunity to email a screenshot of the text message to the registry. At the conclusion of the hearing, the registrar had not received an email containing the text message.

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33. In relation to the entry on 7 January 2025, the tenant says that on 3 January 2025 he met with a contractor, [NAME], at the premises. [NAME] was the contractor employed by the landlord to carry out the works required under the Tribunal’s order issued 11 December 2024. Those works were due to be completed by 17 January 2025.

34. [NAME] says that on 3 January 2025 [NAME] was at the premises and stated he needed to return to complete the works the following week. [NAME] says he reminded [NAME] that the tenant required the necessary notice before he returned.

35. [NAME] says he received a text message from [NAME] at 6:30am on 7 January 2025 asking if [NAME] could return to the premises that day to complete the work necessary to the front door. [NAME] says he did not see the message until after [NAME] arrived on the property at 8:30am on 7 January 2025.

36. The landlord says he relied on his contractor to carry out the works necessary and relied on both [NAME] and the property manager to communicate with the tenant in regards to any notice required.

37. The landlord called [NAME] as a witness. [NAME] confirmed he had talked to [NAME] on 3 January 2025 and indicated to [NAME] that he would need to return to the property the following week to complete the work on the front door. [NAME] says he did not state a specific day he would return the following week.

38. [NAME] said he sent [NAME] a text message in the morning and then arrived at the premises at 9:30am. [NAME] said [NAME] objected to the contractors ([NAME] and one other) being present and they were told to leave. [NAME] says they were on the property for 5 – 10 minutes before leaving as requested.

39. [NAME] accepts he did not give the tenant at least 24 hours’ notice of his intention to carry out repairs to the front door. The landlord did not separately give the tenant notice in relation to the entry on 7 January 2025. Given that, I am satisfied the landlord committed any unlawful act.

40. 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.

41. In the District Court decision of [NAME] v [COMPANY],5 the Court needed to consider a case where the landlord had unlawfully entered the tenancy. The fact there was an unlawful entry was not disputed. The evidence

5 [2020] NZDC 17667.

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was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first been served on the tenant.

42. Judge Neave agreed with an earlier summary of the law from the Tribunal that: Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.

43. Judge Neave went on to accept that the unlawful entry was made in error, and on that basis, there was no intention established, therefore, there was no basis to order exemplary damages.

44. I am satisfied that in this case, the unlawful entry was also made in error. [NAME] stated that on 3 January 2025 he told the tenant he would return the following week to complete the job. [NAME] accepted he could have been clearer, by stating the exact date he would return, but said he made an assumption he could return on 7 January 2025 after his discussion with [NAME] on 3 January 2025.

45. Given the unlawful entry was made in error, and was not intentional, there is no basis to award exemplary damages.

Breach of quiet enjoyment

46. In relation to the same dates, being 10 September 2024 and 7 January 2025, [NAME] claims that by entering the premises without notice, the landlord breached the tenant’s quiet enjoyment, to the extent that it can be considered harassment.

47. Section 38(2) of the RTA states a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.

48. 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.

49. 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.

50. The tenant did not call evidence from his niece, [NAME], who occupies the premises. Without evidence from [NAME] as to how the contractor’s entry onto

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the premises on those two occasions impacted her quiet enjoyment of the premises, the tenant has not discharged the burden of proof.

51. I find there is insufficient evidence to be satisfied the landlord committed an unlawful act amounting to harassment.

Failure to lodge the bond

52. [NAME] claims the landlord did not lodge the bond with the Bond Centre within the required time.

53. 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.

54. 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.

55. The landlord accepts he failed to lodge the bond within the required time. The bond was paid by the tenant on or about 8 February 2023, when the tenancy commenced. The landlord produced a letter from Tenancy Services dated 18 August 2023 which confirms the bond was lodged with the Bond Centre on 11 August 2023.

56. Accordingly, I find the landlord committed an unlawful act.

57. As stated above, 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.

58. I refer again to the authority [NAME] v [COMPANY],6 in support of my finding that the unlawful act was also not committed intentionally.

59. The landlord’s evidence was that he forgot to lodge the bond. The bond was held in his personal bank account from February 2023 to 11 August 2023, at which time it was lodged with the Bond Centre, where it remains. There is no evidence to support the tenant’s submission that the landlord deliberately failed to lodge the bond, or that he did so in order to retain the bond at the end of the tenancy.

60. Given the landlord’s failure to lodge the bond was not intentional, there is no basis to award exemplary damages.

6 [2020] NZDC 17667.

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Was the notice issued 31 January 2025 retaliatory?

61. [NAME] claims the notice given by the landlord on 31 January 2025 terminating the tenancy under s 51 of the RTA was retaliatory in 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.

62. Specifically, the tenant says the landlord was motivated to terminate the tenancy because:

a. On 16 December 2024, the tenant filed an appeal of the Tribunal’s decision dated 11 December 2024 in the District Court, and on the same date, filed a civil claim for defamation against the landlord in the District Court; and/or

b. The landlord waited to issue the notice of termination on 31 January 2025, being the day after a law change which introduced 90-day terminations without reason; and/or

c. The tenant has been assisting [NAME], another tenant of the landlord’s in a different property, in District Court proceedings. [NAME] says that after a teleconference was held in that matter on 3 September 2024, the landlord was exposed for fraud and/or misleading the Tenancy Tribunal and that motivated the landlord to end the tenancy.

63. The landlord says his actions in issuing the termination notice on 31 January 2025 were not retaliatory and were not motivated by those matters identified by [NAME]. The landlord says the decision to sell the property was made in early 2024 for financial reasons. He says that has remained the sole reason the landlord has sought to terminate the tenancy.

64. In support, the landlord produced a copy of a real estate agent’s market analysis of the premises dated 10 October 2024. The landlord says the decision to sell the premises was made in early 2024 in response to rising interest rates, and other family matters.

65. The landlord confirmed he waited to issue the notice of termination on 31 January 2025 as he was informed by his property manager that the change in the law, effective 30 January 2025, meant a landlord could terminate a tenancy by giving 90-days’ notice without reason. In any event, the notice issued on 31 January 2025 did state the reason for termination, being that the landlord intended to sell the premises.

66. The landlord said, but for the law change, the landlord would have issued a notice of termination on 10 January 2025 for the same reason. The landlord

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says 10 January 2025 was the date the repairs which were required under the Tribunal’s work order had been completed.7

67. The landlord also said he was not motivated by the tenant’s assistance to [NAME]. The landlord said [NAME] began assisting [NAME] in 2022. The landlord says this tenancy commenced when [NAME] was already assisting [NAME]. The landlord says if he had felt animosity towards [NAME] for assisting [NAME], he never would have agreed to [NAME] renting the premises for his niece.

68. I am not satisfied that it is more likely than unlikely that the landlord was wholly or partly motivated by any of the reasons identified by [NAME] when he issued the notice of termination on 31 January 2025.

69. I am not satisfied the tenant exercising his rights of appeal, or by issuing civil proceedings for defamation, motivated the issuing of the notice of termination. The tenant did not produce any evidence in support of his claim that the notice issued on 31 January 2025 was motivated by the tenant’s exercise of those rights. Furthermore, I accept there is evidence the landlord intended to sell the premises from at least 10 October 2024, evidenced by the landlord taking steps to obtain a market analysis.

70. The landlord’s reliance on the law change effective 30 January 2025, which permits a landlord to terminate a periodic tenancy in any case by giving at least 90 days’ notice, was not unlawful or retaliatory. T

71. Lastly, I find the tenant’s assistance to [NAME] did not wholly or partly motivate the landlord’s notice of termination issued 31 January 2025. [NAME] has been involved in assisting [NAME] since 2022, there is no connection between that assistance, and the issuing of the notice of termination on 31 January 2025. I do not accept that a teleconference conducted on 3 September 2024 was a motivating factor. I note that that teleconference was held three days before the previous termination notice was issued on 6 September 2024,8 and therefore find there is no causal link between that teleconference and the notice of termination issued 31 January 2025.

72. The notice of termination issued 31 January 2025 is declared lawful. Pursuant to that notice, the tenancy will terminate at 11:59pm on Friday, 2 May 2025.

7 [2024] NZTT 4997948, 5011753. 8 Which I previously determined was lawfully issued: [2024] NZTT 4997948, 5011753.

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Filing fee

73. [NAME] has not succeeded with his claim(s), the landlord is not required to reimburse the tenant’s filing fee.

N Small

29 April 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 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].