What was Tenancy Tribunal case 4306779 about?

The tribunal order states: [The tenant’s] name and identifying details must not be published.

How much money was awarded in case 4306779?

Compensation: Emotional harm - unlaw…: $3,000.00 awarded to tenant; Compensation: Unit Flooding: $50.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $172.50 awarded to landlord; Wall Repainting: $50.00 awarded to landlord; Replace Furnishings: Carpet: $167.27 awarded to landlord; Rubbish Bin Tag: $3.90 awarded to landlord

What type of tenancy dispute was case 4306779?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4306779?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8694920-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4306779 about?

The tribunal order states: [The tenant’s] name and identifying details must not be published.

How much money was awarded in case 4306779?

Compensation: Emotional harm - unlaw…: $3,000.00 awarded to tenant; Compensation: Unit Flooding: $50.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $172.50 awarded to landlord; Wall Repainting: $50.00 awarded to landlord; Replace Furnishings: Carpet: $167.27 awarded to landlord; Rubbish Bin Tag: $3.90 awarded to landlord

What type of tenancy dispute was case 4306779?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4306779?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8694920-Tribunal_Order_Redacted.pdf.

Unit 1, 205 Te Atatu Road, Te Atatu South, Tenancy Tribunal Case 4306779 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4306779 — net $5,156.33 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish bin tag	$3.90		Rubbish bin tag
Repairs: Wall repainting	$50.00		into account the damage and the age of the paintwork, I order the tenant to pay $50.00 towards the landlords’ repainting costs. OTHER MATTERS Costs
Replace furnishings: carpet	$167.27		Replace furnishings: carpet
Replacement remote	$172.50		Replacement remote
Exemplary damages: Failing to lodge the bond		$500.00	21. I order the landlords to pay $500.00 in exemplary damages for this.
Exemplary damages: Failing to replace smoke		$1,500.00	Failing to replace smoke
Exemplary damages: Unlawfully entering premises		$500.00	21. I order the landlords to pay $500.00 in exemplary damages for this.
Compensation: Unit flooding		$50.00	into account the damage and the age of the paintwork, I order the tenant to pay $50.00 towards the landlords’ repainting costs. OTHER MATTERS Costs
Compensation: Emotional harm - unlawful entries		$3,000.00	Emotional harm - unlawful entries
Total award	$393.67	$5,550.00
Net award		$5,156.33
Total payable by Landlord to Tenant		$5,156.33

Claims and awards in Tenancy Tribunal application 4306779 — net $5,156.33 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish bin tag	$3.90		Rubbish bin tag
Repairs: Wall repainting	$50.00		into account the damage and the age of the paintwork, I order the tenant to pay $50.00 towards the landlords’ repainting costs. OTHER MATTERS Costs
Replace furnishings: carpet	$167.27		Replace furnishings: carpet
Replacement remote	$172.50		Replacement remote
Exemplary damages: Failing to lodge the bond		$500.00	21. I order the landlords to pay $500.00 in exemplary damages for this.
Exemplary damages: Failing to replace smoke		$1,500.00	Failing to replace smoke
Exemplary damages: Unlawfully entering premises		$500.00	21. I order the landlords to pay $500.00 in exemplary damages for this.
Compensation: Unit flooding		$50.00	into account the damage and the age of the paintwork, I order the tenant to pay $50.00 towards the landlords’ repainting costs. OTHER MATTERS Costs
Compensation: Emotional harm - unlawful entries		$3,000.00	Emotional harm - unlawful entries
Total award	$393.67	$5,550.00
Net award		$5,156.33
Total payable by Landlord to Tenant		$5,156.33

Order

[The tenant’s] name and identifying details must not be published.
Iris (Huixin) Sun and Simon (Yong) Chen must pay [the tenant] $5,156.33 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,400.00 ([Bond number suppressed]) to [the tenant] immediately.
The claims are allowed as set out in the table below. All other claims are dismissed. 1 This decision was issued on 17 October 2022 but with the incorrect decision date of 4 October 2022. The decision is reissued today (27 October 2022) with the decision date amended to the correct date of 17 October 2022. On 6 March 2023, the decision was reissued so that the landlords’ names on the intituling and Order were corrected (the incorrect names had been populated from the tenant’s application).

Reasons

The tenant attended the hearing in person with [The tenant's support person/s] as support persons. The landlords attended the hearing in person with their son, Sonny Chen, as a support person. 2
[The interpreter], a qualified Mandarin interpreter attended to interpret as requested.
The tenant claims the landlords: 3 oFailed to lodge the bond within the required timeframe. oFailed to ensure the premises had working smoke alarms. oFailed to maintain the premises by not properly repairing the premises after a water pipe burst and flooded the premises. 2 I heard this matter previously on 30 July 2021, 17 June 2022, and 22 August 2022. 3 The parties’ claims were set out in the Tribunal’s decision dated 3 August 2021. oInterfered with his quiet enjoyment to the level of harassment in multiple ways, including by making him feed the landlords’ animals by threatening to otherwise end the tenancy, deliberately making noise that kept him awake at night, and other actions. oUnlawfully entered the premises on two occasions. oIssued him with a retaliatory notice. oRented out unlawful premises.
For remedies, he seeks orders for compensation and exemplary damages.
The landlords claim for: oDamage to the premises. oMissing blinds and a missing remote. oRubbish removal.
For remedies, the landlords seek an order for compensation.
Late in the proceedings, among other things, the landlord wished to add a further claim alleging there were excess persons living in the premises. The tenant wished to add further claims also, including a claim for $6,016.23 for wages for feeding the landlords’ animals. I do not allow these claims. They are brought too late and with insufficient notice.
I have read the parties’ written submissions. I have considered all of these but do not refer to all of them in this decision. 4
The tenancy lasted for close to four years. It began on 10 September 2017 and ended on 30 May 2021.
The premises are a basement flat within a large house. The rest of the house is a separate dwelling, which will be called the “main house” in this decision. The landlords own the whole house and have lived in the main house since December 2019, a couple of years after the tenancy began.
The premises have a floor area of about 66m 2 . They comprise a double bedroom, kitchen/dining room, lounge, bathroom, hallway, and separate laundry room. The premises have their own water and power meters, separate from the main house. The Council long ago approved the construction of the flat as a “Flat in Basement” and “Finalled” with a building permit signed off and issued with a Code of Compliance. 4 I do not detail the landlord’s submission for example that “Mr [tenant’s surname] provide a certificate that he is mentally well”, or the landlords’ request for a formal apology for dishonesty and harassment which was outside the scope of the claims. The material has been considered, however. TENANT’S CLAIMS

Did the landlords fail to lodge the bond within 23 working days?

The tenant claims the landlords did not lodge the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received: s 19(1) of the Residential Tenancies Act 1986 (RTA).
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlords admit to failing to lodge the bond until last year. I find they have committed an unlawful act.
The landlords were not aware of their legal obligation to lodge the bond. They submit their late lodging of the bond did not harm the tenant because it has been lodged now; and the tenant knew the bond had not been lodged as it should have but did not tell the landlords. If he had they would have lodged it straight away.
For exemplary damages to be available the unlawful act must be intentional. Ignorance of the law is not an excuse. 5 Intention can be inferred from the landlord’s deemed knowledge in the circumstances that existed at the relevant time. 6
The landlords did not know the law. Assuming the landlords knew the law, the failure to lodge the bond must have been intentional. I find it deemed in law that the landlords failed to lodge the bond intentionally.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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: s 109(3) of the RTA. 5 If ignorance of the law were an excuse, wilful blindness would be common and rules that help society function smoothly would be rendered ineffective. That is the case with the law requiring landlords to lodge tenants’ bonds. Thus, landlords are deemed to know the law prohibiting the unlawful act. 6 See for example, T.M.T v Sweeney & Sundahl [2021] NZDC 16182 at [37].
Having regard to the landlords’ intent (which is deemed), the effect of the failure being to potentially undermine the integrity of the bond system, the interests of the tenant, and the public interest in having an effective bond system that protects tenants’ bond funds, I am satisfied it is would be just to award exemplary damages.
I order the landlords to pay $500.00 in exemplary damages for this. Smoke alarm
Landlords are responsible for installing and maintaining smoke alarms. Tenants are responsible for replacing smoke alarms’ batteries if the batteries run out.
The tenant says that the premises’ smoke alarm fell down and stopped working on 29 May 2018. He says that his wife sent the landlords a WeChat message about it.
Mr Chen says he went to the flat the next day and the tenant’s wife’s father said that they took the alarm off, and since they were always there, the landlord did not need to replace the alarm. At the original hearing on 27 July 2021, Mr Chen said that he knew he should replace the smoke alarm, but he forgot to.
The tenant repeated that the alarm fell down; the tenants did not take it down. He says his wife told the landlords it had fallen down.
At the most recent hearing, the landlords strongly resisted the tenant’s claim that they were liable for failing to replace the smoke alarm.
Failing to maintain smoke alarms carries exemplary damages up to a maximum of $4000.00 prior to 11 February 2021, and $7,200.00 after 11 February 2021.
The parties provided translated copies of the relevant WeChat exchange between the tenant’s wife and Mr Chen. The Court interpreter assisted with the correct translations. In summary: o23 May 2018 – tenant’s wife: the smoke alarm is intermittently beeping. o23 May 2018 – Mr Chen: mentions may be battery. o29 May 2018 – tenant’s wife: We have opened the alarm, but the battery seemed to be soldered in. The message attached a photograph of the alarm.
The landlords claim the battery was not soldered in. However, the tenant’s photographs are consistent with the battery being soldered in. It appears to be a Fuji 2/3 8L lithium battery. These batteries have pin tabs that are typically soldered into electrical devices.
I find that Mr Chen’s evidence in the original hearing to be honest. He communicated with the tenant’s wife about the smoke alarm and accepted that it needed to be replaced but forgot to.
The failure to replace the alarm was an unlawful act. The unlawful act was one of omission. It was not intentional in the sense that it was deliberate, but it is intentional in that it was omitted in full knowledge that the smoke alarm needed replacing. Therefore, the unlawful act was committed intentionally in terms of s 109 of the RTA. I note, the omission was an ongoing one, beginning on 29 May 2019 and continuing to the end of the tenancy.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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: s 109(3) of the RTA.
Having regard to the relevant factors, I am satisfied that it would be just to award exemplary damages. Most importantly, it is in the public interest to deter landlords from failing in their smoke alarm duties to safeguard tenant and public safety.
I order exemplary damages of $1,500.00.

Did the landlords fail to maintain the premises?

The tenant claims that the landlords breached their obligations under s 45 of the Residential Tenancies Act 1986 to maintain the premises in a reasonable state of repair
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the RTA.
Section 45(1)(b) of the RTA 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...
In the early hours of the morning of 18 November 2018, a water pipe in the main house broke and water poured into the premises, saturating the carpets and flooding the kitchen.
The flooding greatly inconvenienced the tenant who had to mop up the water. He claims that the flooding caused mildew in the walls and made the carpet smell bad, and his mother-in-law and daughter developed coughs. Later, the paint on the walls began to peel and the ceiling got mouldy.
A landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises. Landlords must repair defects within a reasonable time. As the author of Residential Tenancy Law in New Zealand explains: 7 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 and a tenant must notify the landlord, as soon as possible after discovery, of any damage to the premises and the need for repair. A landlord therefore must repair within a reasonable time after knowledge of the need for repair...
The landlords fixed the leaking pipe without delay. There is no evidence of further leaks.
I do not find it proven that the landlord failed to maintain the premises in a reasonable state of repair. There was a one-off leak that was promptly repaired.
I do however find the leak caused the tenant considerable inconvenience and loss of amenity for which he should be compensated. The leak was a maintenance problem that was the landlord’s responsibility, so the landlords are liable for the tenant’s loss.
Accordingly, I order the landlord to compensate the tenant for one day’s rent, being $50.00. Harassment
The tenant claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises: s 38(2) of the RTA.
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: s 38(3) and Schedule 1A of the RTA.
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". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. 7 See Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18 (footnotes not included). Feeding the landlord’s pet
The tenant complains that he was required to look after the landlords’ pets while they were away on holiday under threat of being given notice on eight occasions between 13 January 2018 and 1 February 2020. In his written submissions the tenant says Ms Sun told him: Unless you don't live here, I really can't find anyone to help me.
And that: Every implicit threat forced me to give her the so-called help.
The tenant says he had to clean out the bird bins and tend to the animals after working very long hours. He states: All which I have been forced to help fearing that my landlord would ask us to leave the moment they hear me refuse. Every time I feed the animals, I feel like one of my landlord's free servants, working in exchange for free accommodation, even though I already paid the rent.
The landlords confirm they have one dog, about 20-30 goldfish, and about 10 Cockatoos. They say that looking after the animals was not that difficult. They had a niece tend to the animals on occasions and only asked the tenants to help on a few occasions. On those occasions, the tenants only had to feed the animals daily. The landlord’s eldest son would do the cleaning up on the weekends. They did not threaten or bully the tenant or his wife with giving notice. Rather, the tenant and his wife were happy to feed the animals while they were away.
The landlords referred to a WeChat exchanges they had with the tenant’s wife to show that the task was not onerous: oIn April 2018, the tenant’s wife says the animals have been fed and the water has been changed (The tenant submitted a statement from his wife that said “My husband always fed the animals”). The landlords thank her. She responds, “You’re welcome”. oIn July 2018, the landlords said they would pay the tenants’ monthly water bill in appreciation of her for helping a lot. However, the tenant’s wife declines to accept the offer.
The tenant produced a statement he said was from his wife in which she says that it was the tenant who looked after the animals, not her. It is also said the tenant had no reason to look after the animals unless the landlords threatened him.
I am not persuaded that the landlords interfered with the tenants’ reasonable peace, comfort, and privacy in this regard.
Next-door neighbours or friends quite commonly feed pets while someone is away. It is permissible for a landlord to ask their tenant who lives on the same property to feed their pets while they are away. While there is not just one dog or cat in this case, but also fish and birds, the effort required to feed the animals was not that onerous in my view.
Nor did the tenant produce any contemporary evidence to support his claim that the landlords threatened to give him notice if he did not feed the animals. 8 At that time the parties were on good terms. The 2018 texts with the tenant’s wife indicate the tenants were happy to look after the pets while the landlords were away. There are no texts or emails that indicate a change of attitude. Nor is it likely the landlord would bully their tenants to look after their pets because a bullied person might feel resentful and not look after the pets well. Landlords making noise and interfering with tenant’s quiet enjoyment in other ways
The tenant claimed that after he gave the landlords a copy of his Police Complaint form, the landlords deliberately made loud noise to disturb him.
On 13 April 2021, he texted the landlords complaining that the previous night: After I went to bed...your wife scolded for a few minutes outside the glass door...I don’t know who your wife scolded...But, after all, it has an impact on the lives of tenants...
The tenant also claims the landlords deliberately made loud noises at random times from 3 March 2021 to disturb him. For example, he alleges when the landlord returned from work at midnight he would unnecessarily slam the garage door, which was close to his bedroom door.
The landlords deny that they directed any scolding towards the tenant or that they made noise to disturb the tenant. They point out that they lived upstairs so that making noise late at night would disturb the landlords’ family as well. They also point to the lack of any communications to them proving the alleged interferences except for the text of 13 April 2021.
I do not find it proven on the balance of probabilities that the episode of scolding was directed at the tenant or that the tenants deliberately made noise to annoy the tenant. 8 The tenant submitted a statement he said was from his wife. The statement says, “I can’t think of a good reason why my husband should feed my landlord’s animals”. The statement is hearsay, is not sworn, and is not signed. The maker of the statement was not available for cross-examination. The statement can be given only limited weight in the circumstances.
In his most recent written submissions, the tenant complains about text communications to him and his wife, including texts about a gate remote, and the landlords wanting to inspect the premises. I do not find any of these raise a credible narrative that the landlords interfered with the tenant’s reasonable comfort, peace, and privacy in the premises.
The issue of unlawful entries is discussed below. For completeness, I note that I would not have found the entries amounted to harassment if considered under this head. .
The tenant’s claim of harassment is dismissed.

Did the landlord unlawfully enter the premises?

The tenant claims the landlord entered the premises without consent or notice.
Section 48 of he RTA provides: 48 Landlord’s right of entry (1) The landlord shall not enter the premises during the currency of the tenancy agreement, except— (a) with the consent of the tenant freely given at, or immediately before, the time of entry; or (b) in any of the circumstances described in subsections (2) to (3).
The circumstances under subsection (2) include: for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry
The notice of intended entry must be writing.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See s 48(4)(a) and Schedule 1A of the RTA.
The tenant says that the landlord unlawfully entered the premises on two occasions: oAt about 3:37pm on 18 February 2021; and o1 March 2021. 18 February 2021
In the morning of 18 February 2021, the tenant left his key out for the landlord to allow plumbers to enter the premises. In the afternoon, the tenant took the key away with him when he went back to work.
The tenant says that he did not give the landlords permission for anyone to enter the premises that afternoon.
However, at about 3:37pm on 18 February 2021, the tenant’s hidden camera captured Mr Chen and his son entering the premises.
Mr Chen accepts he entered the premises at 3:37pm because the plumbers were still working on ongoing plumbing problems and needed to access the premises. He says the landlords had regularly communicated with the tenant about going onto the premises and thought the tenant was agreeable so long as the plumbers were supervised. The landlords submitted a copy of their text to the tenant on 11 February 2021 stating: I wish you a happy New Year of the Ox, and you will have a lot of luck! The plumber will come around 10:00 tomorrow morning, please leave the key in the same place...thanks!
Mr Chen says he did not think the tenant would object to him and the plumbers going back onto the premises that afternoon. His subsequent phone call and voicemail message to the tenant was in the nature of a courtesy call. The tenant had later texted that the landlord could use his own key to enter the premises, which showed no harm was done.
However, the tenant, says he had not given permission for the landlord to enter and was very upset by it the entry. He says after her went to work that afternoon he noticed a voicemail message on his cell phone from the landlord that had been received at 3:48pm (about 10 minutes after the landlord entering the premises). In the voicemail, Mr Chen asked the tenant to leave his key so they could enter the premises. The tenant texted at about 4:33pm to say that the landlord could use his own key to enter the premises. However, by that time the landlord had already been onto the premises.
The tenant said he found the landlord’s entry onto the premises disturbing and confronted the landlord about it the next day, saying he should have given him notice, but the landlord responded that he thought it was only a minor matter. The tenant says the following day, on 20 February 2021, he complained to the Police about it. 9 He says he told the Police about what had happened and that he was so fearful he slept with a knife under his pillow. 9 The submitted a Police Complaint form in support of this.
The tenant submitted, “To me this felt like my privacy was violated”.
I find the tenant gave the landlord permission to enter the premises during the day using the tenant’s own key. However, the permission did not extend to the landlord entering using his own key after the tenant had taken his key back.
Therefore, I find the landlord’s entry was unlawful. 1 March 2021
Mr Chen entered the premises with a plumber again on 1 March 2021. He left a voice message on the tenant’s phone to advise the tenant he was going onto the premises. He says again he understood that the tenant would not have any problem with that because the tenant had indicated in January that going onto the premises for the ongoing plumbing issues was acceptable. On 18 February 2021, the tenant had texted, “Please use your spare key to open the door...and you can open the door at any time”.
However, the tenant says the landlords did not give him notice of the entry on that date and he did not give his consent to it.
The landlords did not produce evidence that they had given the tenant written notice of the entry on 1 March. The text message the landlord sent on 11 February 2021 giving notice of entry only referred to the next day, namely, to 12 February. Nor can the landlords rely on the tenant’s text from 18 February as giving them a continuing right of entry because under s 48 the tenant’s consent must be obtained “at, or immediately before, the time of entry”.
I find the landlord’s entry was unlawful on this occasion also. Remedies
I find the landlords have committed an unlawful act on two occasions.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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: s 109(3) of the RTA.
It is proven that the landlord committed the unlawful acts intentionally. On neither occasion was it shown the landlord had authority to enter the premises. He contacted the tenant after the event on both occasions which indicated an awareness that the tenant had not consented entries prior to those contacts.
I consider the landlord’s intent is at the lower end of culpability. He was focussed on necessary maintenance and thought it would not affect the tenant. While he gave insufficient thought to the tenant’s wishes, his intention was not malicious. The effect of the unlawful entries was to make the tenant feel that his privacy had been invaded. The tenant felt a breach of trust and that he could no longer trust the landlord leaving him feeling vulnerable and insecure in the premises. It is the interests of the tenant that an order is made. It is in the public interest to make an award for exemplary damages to deter other landlords from similar conduct.
Therefore, it is just to award exemplary damages which are awarded in the sum of $500.00.
The tenant also seeks compensation for emotional harm (i.e. general damages)
The tenant says that he found the unlawful entries “very shocking and frightening” and submits that afterwards: I felt completely insecure and I had to sleep with a knife under my pillow because I did not know who will enter while I’m asleep.
I note, however, that some of the tenant’s anguish came from sources other than the landlord’s unlawful entries. For example, the tenant claimed the landlords were deliberately making noise to disturb his sleep, but (above) I did not find that proven. 10
The Tribunal in Palmer v Housing New Zealand (No 2) 11 held that when assessing the quantum of general damages, the Tribunal must take into account the following factors: oThe nature of the breach; oThe duration of the breach; and oThe effect of the breach on the party.
Recently, the Tribunal’s power to award compensation was increased from $50,000.00 to $100,000.00 by s 50 of the Residential Tenancies Amendment Act 2020, which means the Tribunal’s orders for general damages can range as high as $100,000.00 if such harm is proven. 10 Similarly, I did not find harassment proven by the tenant looking after the landlord’s pets. 11 Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993.
The Tribunal’s general damages awards have historically been low. In Birch v Otautahi Community Housing R E Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative”. 12 In the case before His Honour, the tenant had returned to her unit and found had entered without her permission. It transpired contractors had done asbestos repair work in the tenant’s unit and the landlord had mistakenly failed to give the tenant appropriate notice of the entry.
His Honour found the Tribunal’s award of $200.00 of emotional harm damages for the unlawful entry was “close to being derisory”. He substituted an award of in the sum of $2,000.00 finding “it was a significant intrusion on [the tenant’s] rights”.
The tenant visited his doctor on 2 March 2021 after he had been given notice of the termination of the tenancy and was prescribed medication for anxiety and insomnia. In his text to the landlords on 13 April 2021, he said: When I first reported the case to the police, I told them that because you entered my place illegally, it caused me a serious mental impact and made me feel a strong sense of insecurity...so now when I go home, I also have my knife with me. I saw the doctor in early March and I told the doctor what happened. The doctor’s diagnosis was that I had a strong nervous breakdown and mania, mainly because of the high stress and lack of rest after you entered my house illegally...
In May 2021, the tenant had a traffic accident at work and his doctor found him unfit to work for 14 days due to stress and anxiety he associates with the tenancy.
By reference to Otautahi, I consider the bands that might usefully inform my decision in this case are: 13 a. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $2,000.00. b. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $2,000.00 to $3,000.00. c. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of over $3,000.00. 12 Birch v Otautahi Community Housing [2020] NZDC 17667. 13 See for example, [Tenants] v Singh [2023] NZTT [Event location suppressed] 4315225 at [125]. The bands in that case need to be attuned to Otautahi.
I accept the tenant’s evidence of having suffered emotional harm. He suffered worry, stress, frustration, anxiety, and insecurity, albeit the full extent of those feelings cannot be attributed solely to the unlawful entries. His experience of emotional harm falls between the upper level of “b” and the lower level of “c”.
In all the circumstances, I order the landlords to pay the tenant $3,000.00 for emotional harm. Retaliatory notice
The tenant’s claim that the landlord’s termination notice was retaliatory has already been decided. 14
Because the issue is already decided by the Tribunal, the Tribunal cannot consider it again under the doctrine of res judicata: the case has already been decided. Unlawful premises
The tenant’s claimed the premises were unlawful.
However, the landlord produced Council records that show the premises were a Flat that Council had “Finalled” with a building permit signed off and issued with a Code of Compliance.
There being no evidential basis for the premises being unlawful, this claim is dismissed. LANDLORD’S CLAIMS

Did the tenant comply with his obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish: s 40(1)(e)(iii) of the Residential Tenancies Act 1986.
There is an equivalent obligation on the landlord to provide the premises to the tenant in a reasonable state of cleanliness at the beginning of the tenancy: s 45(1)(a) of the RTA. 14 In its decision of 25 May 2021 per Adjudicator P McKinstry.
Similarly, the premises returned in in a reasonably clean and tidy condition. “Reasonably clean” means clean to the standard an average bystander. A “reasonable” state of cleanliness does not mean spotless, immaculate, or commercially clean, hotel or motel standard. A landlord therefore may have some work to get the premises up to standard for a new tenant and cannot claim the cost of that to the tenant. A tenant does not have to leave the premises cleaner and tidier than at the start of the tenancy. A claim for cleaning may be dismissed if there is no proof of the premises’ condition at the start of the tenancy. 15
The onus for establishing the claim, sits with the person making it on the balance of probabilities. In this case, the landlords are seeking to recover costs for cleaning. Therefore, the landlords must prove that the tenant did not leave the premises reasonably clean and tidy.
The landlords produced a few photographs of selected parts of the premises after the tenancy ended and after the cleaning of those areas was done. However, they did not produce photographs showing the condition of the premises prior to the tenancy beginning.
The photographs show some minor uncleanliness in a few places including the shower cubicle, behind a stove, and around the hot water cupboard. However, there are no entry photographs to prove the premises were reasonably clean at the beginning of the tenancy.
I do not find it proven on the balance of probabilities that the tenant failed to leave the premises reasonably clean.
This part of claim is dismissed.
The landlords sought an order for the cost of a smoke alarm. However, I have already found it was the landlords who ought to have supplied a smoke alarm when the original one stopped working.
The landlords claimed for the cost of missing blinds. However, the tenant denied any blinds were missing. The landlords produced no invoices to prove they had incurred a loss in this regard. That being so, the claim for reimbursement for blinds is dismissed.
However, the tenant left some rubbish behind. The landlords had to pay $3.90 for an additional rubbish tag for the bin removal service. That amount is ordered. 15 Stewart Benson Residential Tenancy Lay in New Zealand (Thomson Reuters, 2018) at 6.12.
Tenants must also return chattels left for their benefit. In this case the tenant did not return a garage remote. It cost the landlords $172.50 to replace the remote and have it programmed. I order the tenant to pay that amount.

Is the tenant responsible for the damage to the premises?

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 ss 40(2)(a), 41 and 49B of the RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
During the tenancy, a small section of carpet was stained by the tenant’s dumbbells becoming damp and rusting onto the carpet. The landlords say the tenant failed to properly ventilate the premises which contributed to the carpet’s deterioration. The tenant denies not airing the premises but does admit he did not open the windows sometimes because otherwise spiders and other insects would come in, there being no insect screens on the windows. He also says that the flood from the burst pipe was primarily responsible for the carpet deteriorating.
The landlords were unsure of when the carpet was installed. They thought it might have been 2014 or 2015.
I find that the tenant did cause stains to the carpet, but that he was not wholly responsible for the deterioration. The landlords replaced the carpet at the cost of $1,115.10. The carpet was approximately seven years old. It probably had a useful lifespan of about ten years. 16 The carpet’s depreciated value was about $334.53. I order the tenant to pay 50 per cent of that amount, being $167.27.
The tenant attached a temperature/humidity gauge to the wall. When he removed it, a large paint chip pulled away. The landlords also claim that the tenant put hooks into the walls, but the tenant says the hooks were there when he moved in and there were no photographs to prove the hooks were there prior to the tenant moving in. 16 See Tribunal Services website on depreciation.
The landlords spent $598.00 on repairing the wall paintwork. The walls were painted shortly before the tenancy began. Paintwork on walls has a life- expectancy of about five years before it needs redoing. In this case, the damage was minor. Taking into account the damage and the age of the paintwork, I order the tenant to pay $50.00 towards the landlords’ repainting costs.

OTHER MATTERS

Costs

The parties claimed for costs for translation, copying documents, and other costs incurred for the litigation. Under s 102(1) of the RTA, the Tribunal does not have the power to award costs. Bond
The bond is to be paid to the tenant in the circumstances. Non-publication
The tenant sought non-publication of his name and identifying details.
Under s 95A of the RTA, the Tribunal must, on the application of a party that has substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant has substantially succeeded in the proceedings. The Tribunal does not consider that publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
A non-publication order is made.

Tenancy Tribunal case 4306779 — Exemplary damages at Unit 1, 205 Te Atatu Road, Te Atatu South,

At a glance

Tenancy Tribunal case 4306779 — Exemplary damages at Unit 1, 205 Te Atatu Road, Te Atatu South,

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlords fail to lodge the bond within 23 working days?

Did the landlords fail to maintain the premises?

Did the landlord unlawfully enter the premises?

Did the tenant comply with his obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

OTHER MATTERS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlords fail to lodge the bond within 23 working days?

Did the landlords fail to maintain the premises?

Did the landlord unlawfully enter the premises?

Did the tenant comply with his obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

OTHER MATTERS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions