122Compensation and civil penalties

122 Compensation and civil penalties (1) Subject to subsection (2), the Tribunal may, on the application of a landlord or the tenant under a tenancy agreement, order compensation for loss or damage suffered by the applicant be paid to the applicant by the other party to the agreement because: (a) the other party has failed to comply with the agreement or an obligation under this Act relating to the tenancy agreement; or (b) the applicant has paid to the other party more than the applicant is required to pay to that other party in accordance with this Act and the agreement. (2) A party may not apply under subsection (1) for: (a) compensation payable under section 121; or (b) loss or damage suffered by reason of a breach of the landlord's duty to repair, unless notice under 58(1) has been (3) In determining whether to order the payment of compensation to a party, the Tribunal must take into account each of the following: (a) whether the person from whom the compensation is claimed has taken all reasonable steps to comply with his or her obligations under this Act and the tenancy agreement, being obligations in respect of which the claim is made; (b) in the case of a breach of a tenancy agreement or this Act – whether the applicant has consented to the failure to comply with obligations in respect of which the claim is made; (c) whether money has been paid to or recovered by the applicant by way of compensation, including any money recovered or entitled to be recovered from the security deposit paid under the tenancy agreement; Residential Tenancies Act 1999 81 (d) whether a reduction or refund of rent or other allowance has been made to or by the applicant in respect of the tenancy agreement; (e) whether an action was taken by the applicant to mitigate the loss or damage; (f) any tender of compensation; (g) if the claim is made in respect of damages to the premises to which the tenancy agreement relates – any action taken by the person from whom the compensation is claimed to repair the damage at his or her own expense. (4) If a party to a tenancy agreement is found guilty of an offence against this Act by a court, that court, another court or the Tribunal may, on the application of the other party to the agreement, order the person convicted to pay to the applicant compensation for any loss or damage suffered by the applicant because of the commission of the offence. (5) The Tribunal is not to make an order under this section: (a) for the payment of compensation in respect of death, physical injury, pain or suffering; or (b) in respect of a failure to pay rent unless: (i) the rent has been unpaid for at least 14 days after it is due and payable; or (ii) the tenant has failed on at least 2 previous occasions to pay rent under the same agreement within 14 days after it was due and payable; or (c) in respect of a termination of a fixed term tenancy before the end of the tenancy agreement, ordering the payment by the tenant of more than: (i) if less than half of the agreed term of the tenancy agreement has elapsed – 28 days rent; or (ii) otherwise – 14 days rent. (6) For subsection (5)(c), an order may only be made to the extent the landlord establishes an actual loss, having regard to the landlord's obligation to mitigate its losses. Residential Tenancies Act 1999 82