Birch v Otautahi Community Trust [2020] NZDC 17667

Published 21 July 2021

Appeal from Tenancy Tribunal — unlawful entry — right to quiet enjoyment — exemplary damages — quantum of general damages — "unlawful acts" — "harassment" — Residential Tenancies Act 1986, ss 2, 38(1), 38(3), 48(1), 48(3), 48(4)(a), 55(1)(a) 77(2)(n), 109, 118(1)(b) & Sch 1A — Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103 — Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 — Chief Executive, ex parte Edmondson v Walls North Shore TT548/92, 29 June 1993 — Auckland City Council v Blundell [1986] 1 NZLR 732 — Whatiura v Shoulder TT12/87, 16 March 1987. This was an appeal from a decision of the Tenancy Tribunal, which held that the respondent had breached its obligations to the appellant (who was a tenant of the respondent), and ordered that it pay her $400. The Tribunal had found that the respondent had allowed city council staff into the appellant's unit, which was unlawful entry, and that it had authorised the delivery of packaging materials to the appellant's unit, which was a breach of her right to quiet enjoyment. However the Tribunal declined to make an award for exemplary damages as it considered that the respondent's conduct was not intentional or calculated. The appellant appealed both the quantum of the award, and the refusal to award exemplary damages. Under the Residential Tenancies Act, exemplary damages can only flow from conduct that is "unlawful". Not all breaches of the Act amount to "unlawful" conduct. The Court found that although the entry into the appellant's unit had been unlawful, the respondent lacked intention to commit an unlawful act. Likewise, while the delivery of the materials had breached the appellant's right to quiet enjoyment, it had not been sufficient to amount to harassment, as is required to make an award of exemplary damages under s 38 of the Act. The Court found that exemplary damages were not available to the appellant. However given how distressing the breaches had been for the appellant, the Court found that the quantum of damages awarded by the Tribunal was inadequate. The Court awarded damages of $2000 for the unauthorised entry and $500 for the breach of quiet enjoyment. Judgment Date: 4 September 2020.

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