Tenant Wins Written Agreement Claim, Gets $277 Award

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[2025] NZTT 5125310

TENANCY TRIBUNAL AT NORTH SHORE | TE TARAIPIUNARA RETIHANGA KI ŌKAHUKURA

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: Rooms 14 & 3, [ADDRESS], [POSTCODE]

ORDER

1. The tenant’s claim that the landlord did not provide a written tenancy agreement is allowed. [NAME] must pay [NAME] $277.00 immediately, calculated as shown in table below.

2. The tenant’s other claims are dismissed.

Description Tenant Exemplary damages for no tenancy agreement $250.00 Filing fee reimbursement $27.00 Total award $277.00

Reasons:

1. [NAME] attended the hearing in person.

2. [NAME], the landlord, attended for himself. His wife, [NAME] also attended. [NAME] mistakenly named [NAME] “[NAME]” (her correct name is in fact [NAME]) as a landlord. [NAME] described himself as the owner and the manager of the premises. There being no evidence [NAME] was a landlord, she is removed as a party.

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3. [NAME] claims that [NAME]:

a. Did not provide a written tenancy agreement.

b. Interfered with his reasonable peace to the level of harassment.

c. Did not keep the property reasonably clean and tidy.

d. Failed to maintain the premises to a reasonable standard of repair.

4. Prior to considering the claims, I must consider two threshold issues, namely:

a. Should I recuse myself from hearing the claim?

b. Does the Residential Tenancies Act 1986 (RTA) apply to this tenancy.

5. I address the threshold issues first.

Should I recuse myself?

6. [NAME] asked that I recuse myself and adjourn the case. He specifically asked that [NAME] (a former adjudicator) and I (although he incorrectly named me as “Mr R [NAME]”) not be assigned to hear his application.

7. I recall that I have sat on at least one case involving [NAME] previously. The landlord in that case was the Government housing provider, [NAME] & Communities.

8. In that case I declined to order [NAME] compensation.

9. [NAME] submits that in the case I colluded with [NAME] in a politically corrupt way. When asked what evidence he relied on for his allegation, he responded it was my decision in which I did not allow compensation. When asked why he did not appeal the earlier decision, he said that it due to my terrorism and [NAME]’s property manager’s terrorism which “stopped his democratic rights”.

10. [NAME] submitted that the events surrounding his current claims are also connected to a political conspiracy against him that also involves his deceased brother.

11. The evidence does not support [NAME]’s claims.

The situation is like that the Court of Appeal dealt with in Dermot Nottingham.1 In that case the Court said:2

1Dermot Nottingham & Others v The Real Estate Agents Authority & Honey [2023] NZCA 233. 2 Ibid, [11] – [13]. See also, Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 [Saxmere (No 1) at [5], citing [NAME] v Secretary of State for the Home Department [2009] 2 All ER 1031 (HL) at [3]; and at [8].

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The appellants’ recusal application

[11] The appellants’ recall application is described as being made “in relation to a conspiracy involving collusion and corruption of judicial actors in the Court of Appeal of New Zealand being specifically Judges Dunningham, Ellis, [Simon] France and Goddard”. The recusal application is based on the same sweeping allegations of corruption and misfeasance against the Judges who sat on the appeal, and against Goddard J. The allegations proceed on the basis that the approaches adopted in this Court’s judgment and in procedural directions made by Goddard J were so perverse that they could only be explained by conspiracy and corruption.

[12] This line of reasoning is misconceived. The fact that judges have ruled against a litigant in previous cases is not an indication of bias or an indication of an appearance of bias.8 Still less is it an indication of conspiracy or corruption. There was no proper basis for making these extreme allegations: it was irresponsible and inappropriate for the appellants to do so.

[13] Putting to one side the appellants’ extreme and irresponsible allegations of serious judicial misconduct, no basis has been identified for recusal of any of the judges assigned to hear these applications. Unless a judge is required to recuse themselves, they have a duty to sit on a matter to which they have been assigned. The Judges assigned to hear these applications must therefore do so, and must not recuse themselves.

12. The only thing that [NAME] points to is that I decided against him. That does not indicate bias, conspiracy, or corruption, nor an indication of them.

13. An independent reasonable observer of the earlier proceedings and associated procedural background could not take the view that there was any bias, conspiracy, or corruption, nor any unfairness in my continuing to hear [NAME]’s current claims.

14. It is not permissible for me to recuse myself. I have a duty to hear and determine the matter.

Does the Residential Tenancies Act apply to the tenancy?

15. [NAME] thought the RTA did not apply to the tenancy.

16. The development containing [NAME]’s rooms (he firstly in room 14 and later in room 3 during his stay) is called [ADDRESS].

17. [NAME] described the Lodge as a budget motel. He submitted that the RTA does not apply to [NAME]’s stay because:

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a. There was no tenancy agreement.

b. [NAME] paid no bond.

c. [NAME] could leave the premises on giving 48 hours’ notice or less.

d. [NAME] stayed at the premises for only five weeks and three nights.

18. [ADDRESS] has 18 rooms. Most of the rooms are let out to long-stay residential tenants. [NAME] says he has residential tenancy agreements with these tenants, and he accepts that the RTA applies to them.

19. He also lets some of the rooms to travelling guests who stay for only one or two nights. The RTA does not apply to them under s 5(1)(k) of the RTA which excludes temporary or transient accommodation. That paragraph excludes a tenancy from the RTA where:

(k) …the premises— (i) are intended to provide temporary or transient accommodation (such

as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and

(ii) are subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation that continues to be provided under the agreement…

20. The third kind of letting [NAME] uses is a pay week-by-week model, which is the one he employed for [NAME]. [NAME] paid $500.00 rent per week in advance. He could stay or leave as he wished. He eventually left on his own accord.

21. Section 5(1)(k) is not engaged by this arrangement because it was not for temporary or transient accommodation ordinarily provided for periods of less than 28 days. [NAME] stayed for 38 days. There was no time limit on [NAME]’s stay. He could well have stayed much longer than he did.

22. The factors that [NAME] relies on do not go to the substance of the arrangement. As District Court Judge Neave commented in this context:3

[T]he labels that the parties give to the arrangement will not and cannot be determinative. It will always be necessary to examine the full facts of the situation and determine what the substance of the arrangement was.

23. [ADDRESS]’s 18 rooms predominantly have no facilities (bar two rooms that have ensuites). The tenants share two communal kitchens, a bathroom, and a laundry. This makeup appears to meet the RTA’s definition of a boarding house.

24. Under s 66B of the RTA a boarding house is defined as follows:

3 In Watson v Watson DC Christchurch CIV-2020-009-2030, 14 September 2010 at [9].

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boarding house means residential premises— (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time

25. The premises is a boarding house under the RTA. [NAME]’s rooms were part of the boarding house.

26. I find that the RTA applies to the tenancy and that the tenancy was a boarding house tenancy.

27. The Tribunal therefore has jurisdiction to consider [NAME]’s claims on the basis that the tenancy is a boarding house tenancy.

[NAME] provide [NAME] with a written tenancy agreement?

28. [NAME] never provided [NAME] with a written tenancy agreement.

29. A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing.4

30. Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00.5

31. [NAME] committed this unlawful act as alleged.

32. 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.6

33. [NAME] deliberately did not provide [NAME] with a written tenancy agreement. As discussed, [NAME] says he did not do so because the tenancy was not captured by the RTA due to rent being week-by-week, no bond was paid, and so on.

34. I consider the Tribunal should take a strict approach to this important duty. The tenancy agreement is a gateway to the tenant’s access to their tenant rights. Those rights may be negated without a written tenancy agreement setting out the landlord’s duties. Without the tenancy agreement, tenants may not know their rights or how to access them.

4 RTA, s 13. 5 RTA, s 13(4), Schedule 1A. 6 RTA, s 109(3).

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35. I accept that [NAME] actions were based on ignorance of the law. However, ignorance of the law is no excuse. Knowledge of the law is assumed. Knowledge having been assumed; intentionality is presumed.7

36. The unlawful act marginalised [NAME]’s tenancy rights. It is in his interests that the Tribunal orders exemplary damages to vindicate the breach.

37. The public interest favours an approach that supports provisions that help tenants understand and access their fundamental tenant rights under the RTA.

38. It is just to order exemplary damages. I deal with [NAME] as a first offender in this respect. It is probable that this has been an ongoing practice. However, it appears that this is the first time [NAME] has been found in breach of this duty in the Tribunal.

39. I set the exemplary damages at $250.00, which is one-third of the maximum.

[NAME] and [NAME] harass [NAME]?

40. [NAME] claims that [NAME] and [NAME] harassed him.

Legal principles

41. A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.8

42. 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 $3,000.00.9

43. 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.

44. Black’s Law Dictionary10 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.

7 See for example in the analogous situation of unlawful acts relating to the landlord’s duties in respect to the bond, Chief Executive, ex parte Edmondson v Walls North Shore TT548/92, 29 June 1993 at 20. Approved in Birch v Otautahi Community Housing Trust [2020] NZDC 17667 at [38]. 8 RTA, s 38(2). 9 RTA, s 38(3) and Schedule 1A. 10 Bryan A Gardener (ed) Black’s Law Dictionary (8th ed, West Group, 2004).

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45. The New Oxford Dictionary of English“11 defines “harass” as:

subject to aggressive pressure or intimidation”.

Submissions

46. [NAME]’s affidavit and his evidence at the hearing are that:12

On 9 December 2024 at 8.35pm I left my room & walked to kitchen. Mr & [NAME] were seated in front of the kitchen…I stood close to them. Behind the window. Behind the kitchen sink. Doing some work.

[NAME] said to [NAME] “He’s been down. Fucked in the head!” then he pointed to his head. He meant I was mad. Elder abuse.

47. [NAME] also alleges about five days later:

I was in my room 3…

I heard [NAME] [i.e. [NAME]] yell loudly. So I could hear. About me.

“criminal get the fuck out of here pervert!”

48. [NAME] denied the claims. He says the first allegation simply did not happen and makes no sense because he and his wife always speak Mandarin when they are talking only between themselves.

49. Moreover, [NAME] says without exception he does not behave this way towards his guests. He has a Bachelor of Management, hold a Chartered Accountant accreditation, and has an MBA. He says he is very professional in the way he deals with his clients. He claims that in his life he treats different people of whatever culture, the same because “people of different cultures have the same heart”. He says he does not get angry when his guests get angry. This approach to life is based on Buddhist teachings.

50. [NAME] submitted that [NAME]’s second allegation makes no sense either. He says his wife has only limited English. [NAME] herself claimed that she did not even know what “pervert” means.

51. [NAME] responded that [NAME] and [NAME] were lying. He suspects they are implicated in the conspiracy against him. He believes [NAME]’s alleged comment, “He’s been down” referred to him being taken down the lift to the lower floor of a mental health institution. Presumably, that suggests to [NAME] that [NAME] was party to clandestine information. He says [NAME]’s comments were not directly to him, but they were about him.

11 Patrick Hanks (ed) (Clarendon Press, Oxford, 1998). 12 [NAME]’s affidavit.

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Discussion

52. I did not find [NAME]’s evidence plausible. His account had an unnatural air. It did not contain a credible narrative that would explain why [NAME] and [NAME] would act in the way [NAME] alleges.

53. [NAME] is blessed with a sonorous voice like his brother. He has an imposing presence. It is conceivable, for example, that [NAME] could unconsciously use those attributes in a way that upsets other people and leads them to behave out of character. However, that is not the account [NAME]’s gave.

54. [NAME] suggested that [NAME] and [NAME] “both use fear and intimidation” as a matter of course and “Enjoy making tenants suffer”. Again, there was no evidence of this other than [NAME]’s own evidence. One would have thought such behaviour is the antithesis of good hosting and would be fatal to a relationships-based business like [NAME]. At the hearing, both [NAME] and his wife were unfailingly calm and polite. Their demeanour at hearing is not consistent with being people who would lose their temper without significant provocation.

55. I accept also that [NAME] has limited English. That was my impression even before this claim was discussed during the hearing, at which time she may have been tempted to exaggerate her poor English skills. She did not appear to understand much of what was said in the hearing and [NAME] did virtually all of the speaking for them.

56. Given her limited English, it is unlikely that she would use the complex words that [NAME] alleges.

57. I am not confident that [NAME]’s evidence is reliable. He is articulate and logical. He has a good mind, but his mind is cluttered by thoughts of a conspiracy against him. If there is such a conspiracy, it is outlandish that [NAME] would be connected to it. He is far too busy running his business and doing other things to indulge in a conspiracy against [NAME].

58. The gratuitously abusive conduct [NAME] alleges against [NAME] and [NAME] is improbable.

59. [NAME] was polite and settled during the hearing, I find myself unable to rely on his evidence to the level of proof of the allegations on the balance of probabilities.

Conclusion

60. This claim is dismissed.

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[NAME] keep the facilities reasonably clean and tidy?

61. [NAME] complains that there was rubbish down the one-metre wide boundary setback nest to the neighbouring property’s fence.

62. The rubbish included two pillows, discarded building materials, a plastic container, and several aluminium cans.

63. [NAME] says that this area is out of the way of the common areas and is only accessible via the back door from the laundry. He claims to have cleaned up the area within a couple of days of becoming aware of it.

64. [NAME] disagrees. He says he cleaned out the area himself out of gratitude for [NAME] moving him to another room when the occupant of room 12 became violent towards him.

65. Under s 66I of the RTA, the landlord must ensure that the facilities of the premises are in a reasonable state of cleanliness. Facilities are defined in s 66B as follows:

facilities means the facilities provided by the landlord of a boarding house for the shared use by tenants of the boarding house, such as—

(a) toilet and bathroom facilities: (b) cooking facilities: (c) general living, dining, or recreational areas: (d) laundry facilities: (e) lifts and stairways: (f) rubbish storage and rubbish disposal facilities: (g) appliances for heating or cooling premises: (h) communication facilities: (i) lawns, gardens, and outhouses: (j) any land or buildings intended for use for storage space or for the parking

of motor vehicles

66. This narrow strip of ground is not “facilities”. Therefore, the landlord did not have an obligation of cleanliness.

67. In any event, the facts a de minimis; and the law does not concern itself with trifles. The rubbish was in an unhabituated area. The amount of rubbish was modest. Whether it was [NAME] or [NAME], the rubbish was tidied soon after [NAME] alerted [NAME] of the situation.

68. This claim is dismissed.

Did the landlord fail to maintain the premises?

69. [NAME] claims that [NAME] breached his obligations to maintain the premises in a reasonable state of repair by failing to ensure that the laundry basin had a

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properly fitting plug. As a consequence, [NAME] could not do his laundry handwashing.

Legal principles

70. Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides:

45 Landlord’s responsibilities

(1) The landlord shall— (a) … (b) provide and maintain the premises in a reasonable state of repair

having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes…

27. Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains:13

The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage… A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 14

“…the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be…”

Discussion

71. [NAME] says that he became aware that the laundry plug was the wrong size and told [NAME] about it, but [NAME] did not provide a usable plug.

72. [NAME] says that he gave [NAME] a 10-litre bucket to use in the meantime and obtained the correct sized plug for the basin within a couple of days. [NAME] could not produce an invoice or bank records proving the purchase. However, nor could [NAME] prove the date he reported the problem by reference to a text message or an email for instance.

13 [NAME] Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 14 [NAME] v [COMPANY] DC Wellington CIV 2009-085-1431, 24 February 2010 at [15].

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73. I found [NAME]’s evidence believable. He was calm and measured. He gave the impression of being conscientious, and organised.

74. I prefer [NAME]’s evidence as being more dependable than [NAME]’s upon the points upon which their evidence differs.

75. I am not satisfied on the balance of probabilities that [NAME] breached his duty to maintain the premises in this regard.

Conclusion

76. This claim is dismissed.

Filing fee

77. [NAME] has succeeded in respect to one of his claims. He has done the renting community and the general public a service by bringing [NAME]’s tenancy agreement obligations for his week-by-week tenancies to his attention.

78. The Tribunal orders [NAME] to reimburse him for the filing fee.

[NAME]

28 February 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].

Reasons: