Tenant Wins Damages for Landlord's Bond Failure

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[2025] NZTT 5082112, 5191943

TENANCY TRIBUNAL AT CHRISTCHURCH | TE TARAIPIUNARA RETIHANGA KI ŌTAUTAHI

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [NAME] and [NAME] $777.00 immediately, calculated as shown in table below.

Description Tenant Exemplary damages $750.00 Filing fee reimbursement $27.00 Total award $777.00 Total payable by Landlord to Tenant $777.00

2. All other claims are dismissed.

Reasons:

1. Both parties attended the hearing.

2. The tenants have applied for exemplary damages and the landlord has applied for compensation following the end of the tenancy.1

3. It was not clear whether this was a boarding house or room by room tenancy. On balance, I find that it was room-by-room2, there being five tenants when this

1 The Landlord had been directed to submit his cross-application by 10 February but did not submit it until 10 March, one week before the hearing. The tenants advised that they could respond to the claims at the hearing. 2 Four Seasons Realty Limited v Matchitt [2023] NZDC 21359

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tenancy started. However, nothing turns on the definition for the purposes of these applications. The outcome would have been the same regardless of whether the tenancy was a boarding house or room-by-room.

4. 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.

5. 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. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.” (emphasis added)

6. In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

Tenant Claims

7. The tenants claim exemplary damages as follows:

a. Breach of Quiet Enjoyment amounting to Harassment –see s38 Residential Tenancies Act (RTA)..

b. The tenant’s claim the landlord was overseas for longer than the Act permits without appointing an agent. See section 16A(1) RTA.

c. The tenants claim the landlord has not lodged the bond with the [COMPANY] within the required time. See section 19(1) RTA.

Appointing an agent

8. The tenants claim that the landlord has been overseas for longer than the Act permits without appointing an agent.

9. The landlord accepted that he was out of New Zealand for more than 21 days without appointing an agent. As such, he committed an unlawful act as defined in the RTA.

10. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) RTA.

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11. I am not persuaded that it is appropriate to award exemplary damages in this case. The landlord explained that he was out of the country for longer than he anticipated and that he was available to, and did, answer messages. The tenants did not give evidence of any effect on them, of the landlord being overseas.

12. This aspect of the claim is dismissed.

Bond Lodgement

13. claims the landlord has not lodged the bond with the [COMPANY] within the required time.

14. A landlord 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.

15. The landlord did not lodge the bond within the required timeframe, or at all. He has committed an unlawful act.

16. A bond is the tenants’ money and must be lodged with the [COMPANY] within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.

17. The Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] [NAME] 2783/01); and where the landlord knew of the obligation to lodge the bond (Fu v Florendo [2013] [NAME], CIV-2013-092-2373).

18. The landlord could not explain his failure to lodge the bond. It also seems that he may not have lodged the bond in respect of other tenancies. He withheld the bond at the end of this tenancy. Exemplary damages are appropriate in this instance. I award $750.00.

Quiet Enjoyment – Landlord & Tenant Claims

19. Both parties claim that the other has breached obligations in relation to quiet enjoyment.

20. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.

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21. Similarly, a tenant must not cause or permit interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. See section 40(2)(c) RTA.

22. Breaching either of these obligations 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 sections 38(2), 40(3A)(d) and Schedule 1A RTA.

23. 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.

24. Black’s Law Dictionary defines harassment as:

Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

25. These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them.

26. The tenants gave evidence of the landlord being at the premises, doing landscaping work, socialising with other tenants, carrying out noisy work with power tools. They said that there was a positive environment at the property at the start of the tenancy, but it deteriorated as tenants moved out and were replaced by friends of the landlord. The landlord disputes the tenant’s evidence.

27. The landlord claimed that it was the tenants who were disruptive to others living at the premises. He says they were messy, did not clean common areas and caused others to move out. The landlord provided evidence from another tenant complaining about others at the property but did not identify who the complaints were about.

28. Neither party provided sufficient evidence to establish their claims in relation to the other’s alleged behaviour. Both claims are dismissed.

Is the tenant responsible for the damage to the premises?

29. A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

30. The landlord claims that shower damage during the tenancy was not reported to him, causing further damage and claimed $10,000 for repairs. The damage

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was apparently reported to the landlord by in-going tenants after this tenancy ended.

31. The landlord did not provide evidence of the cause of the leak to establish whether it was damage or a required maintenance. Nor did he provide evidence of the additional damage or decay caused by any failure of the tenant to notify the leak. The repair has not been done (months after the tenancy ended) and the landlord did not provide any evidence of the repair cost. The landlord has not discharged the onus of proof in relation to this claim. The tenants said that the landlord did not raise this issue with them until the cross- application was filed a week before the hearing.

32. The landlord also claims that the tenants damaged a gate. It is apparent that some palings have fallen off. The tenants suggest it could be that the gate was poorly built by the landlord. There were other tenants at this property, the landlord has not provided any evidence to establish that the damage was caused by these tenants.

33. The claims for repairs costs are dismissed.

34. As the tenants were partially successful with their claims, I have awarded reimbursement of their Tribunal application fee.

[NAME]

20 March 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 [NAME]/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 [NAME]/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.[NAME]/disputes/enforcing-decisions https://www.[NAME]/disputes/enforcing-decisions http://www.[NAME]/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: [NAME]/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: