In September last year EL Bydder acting for landlord Neutrino Trust went to the property with associates and made arrangements to remove two vehicles belonging to tenant Ngariki Waaka.
Waaka, who had lived at the Nawton self-contained bedsit studio property since November 2017, says the 1993 Nissan Navara Ute, bought for the mother of his tamariki in 2016 for $5,000 and a1993 Mitsubishi Galant, bought from a now deceased uncle for $20,000, were of significant value as “classic vehicles”.
He told the Tenancy Tribunal the operational vehicles belonged to whanau, to whom he is accountable and were in his possession as kaitiaki, or guardian. They were regarded as treasure, or taonga.
Waaka was not at the property when they were removed.
Bydder had a different take, telling the tribunal he went to the property to remove rubbish after receiving a complaint from neighbours and during the visit decided the property had been abandoned. He says workers hired to remove rubbish, unexpectedly also removed the vehicles.
Tribunal adjudicator G Barnett says this was at odds with his evidence and he was satisfied Bydder was directly involved in the cars removal.
Bydder described both vehicles as junk. He says the all the Mitsubishi’s windows had been smashed, the body of the vehicle was covered in lichen, the bonnet was missing, and every panel had dents or other damage. He claimed it had been parked on a neighbouring property for three years without being moved.
He says the Nissan had been at the tenant’s property for about a year, was derelict, and had been partly stripped, missing doors, the bonnet, and wheels.
Neither vehicle, he says, had number plates and there was no evidence of their having a warrant of fitness or being registered.
He produced a statement from an unnamed person he says helped remove the cars and who described them as wrecks. When Waaka discovered the vehicles had been removed, the unnamed person says he was incredibly angry.
Waaka was not given the name of the wrecking company or any details about how he could recover the vehicles as the unnamed person said it could have resulted in the tenant discovering who helped the landlord remove the cars.
Apart from a Google satellite view of the property, in which the location of both vehicles can be seen, there are no other photographs.
The Mitsubishi’s vehicle registration had been placed on hold and the tribunal had no documentary evidence as to either vehicle’s roadworthiness, nor the vehicle registration status of the Nissan.
Bydder questioned whether the Mitsubishi Galant had the sentimental value Waaka claimed and told the tribunal Waaka’s sadness at the loss of the vehicles is because he had been using the vehicle to store illicit substances, which had been lost to him. Waaka vehemently denied this and adjudicator Barnett says there was insufficient evidence this was in fact the case.
Barnett says there is no dispute the landlord removed the vehicles without the consent of the tenant, or with any other legal authority.
“While Bydder may have formed a view the property had been abandoned, it did not give him the lawful authority to enter the property and dispose of the tenant’s possessions, including the vehicles.
In a 2001 decision, the tribunal found goods do not need to be legally owned by the tenant but will at the material time need to be in the tenant’s possession. “In this case there is no suggestion that the tenant was not entitled to be in possession of the vehicles concerned. In my view the goods seized do not necessarily need to be on the property,” says Barnett.
“By removing the vehicles without legal authority or consent of the tenant, I am satisfied that the landlord has breached the Residential Tenancies Act section 33(1), and in doing so has committed an unlawful act.”
However, the value of the vehicles was disputed. Waaka claimed the vehicles were Japanese “classics” and that both were in good running order and they could be driven. He estimated the replacement value for the Mitsubishi to be about $10,000, and the Nissan Ute to be about $3,500.
Bydder and the unnamed person say they considered the vehicles to be “junk”, or “wrecks” and of little, if any, monetary value.
The only independent evidence as to the condition of the vehicles, says Barnett, is the satellite photograph, which upon careful analysis suggests the vehicles had been stationery for some time. He considered Bydder’s evidence as to their value to be the more reliable and that they had a modest scrap value. He awarded Waaka compensation of $750 for the Mitsubishi Galant and $750 for the Nissan Ute.
Because Bydder had not issued any breach notices requiring Waaka to remove the vehicles or correspond in any way about his intention to remove the vehicles, ownership inquiries were made only after they had been removed and Waaka was not given the opportunity to recover the vehicles, exemplary damages of $2,000 were awarded. Barnett says he accepted one of the vehicles had sentimental value for Waaka and that the removal of the car negatively impacted on his wairau, or spiritual wellbeing.
The tribunal dismissed Waaka’s other exemplary damages claims for the landlord’s failure to lodge the bond, failing to maintain the property and for failing to comply with the insulation and smoke alarm, and housing improvement regulations.
He also sought a full rent refund claiming the property to be unlawful premises, which was also dismissed.
Bydder claimed Waaka abandoned the property in September last year and was in rent arrears. He was awarded $3,950.