What was Tenancy Tribunal case 4510209 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4510209?

Compensation: Fixed Water: $714.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Rent Arrears: $434.00 awarded to landlord; Water Rates: $8.60 awarded to landlord

What type of tenancy dispute was case 4510209?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4510209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9240189-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4510209 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4510209?

Compensation: Fixed Water: $714.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Rent Arrears: $434.00 awarded to landlord; Water Rates: $8.60 awarded to landlord

What type of tenancy dispute was case 4510209?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4510209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9240189-Tribunal_Order_Redacted.pdf.

Unit/Flat 7, 341 Mount Eden Road, Mount Eden, Auckland Tenancy Tribunal Case 4510209 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4510209 — net $1,771.40 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$434.00		Rent arrears
Water rates	$8.60		Water rates
Compensation: fixed water		$714.00	fixed water
Exemplary damages: Failure to manitain		$1,500.00	Failure to manitain
Total award	$442.60	$2,214.00
Net award		$1,771.40
Bond		$2,240.00
Total payable by Landlord to Tenant		$1,771.40

Claims and awards in Tenancy Tribunal application 4510209 — net $1,771.40 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$434.00		Rent arrears
Water rates	$8.60		Water rates
Compensation: fixed water		$714.00	fixed water
Exemplary damages: Failure to manitain		$1,500.00	Failure to manitain
Total award	$442.60	$2,214.00
Net award		$1,771.40
Bond		$2,240.00
Total payable by Landlord to Tenant		$1,771.40

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Cherry Frances Bishop must pay [The tenant/s] $1,771.40 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,240.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing. Ms Bishop the landlord and [redacted] the tenant with his support person.
This started out as a 2 year fixed term tenancy on 26 July 2020 which moved to a periodic tenancy.
On 23 June 2022, the Tribunal made an order for the landlord to install an extractor fan and fix the windows of the property. The Tribunal awarded reduced rent of $30.00 until the extractor fan was fixed and $20.00 a week until the leaking window was fixed. The tribunal awarded exemplary damages.
The extractor fan was fixed,
The window has not been fixed. The landlord says after the roof was fixed on or about 22 February 2023, the window was no longer leaking.
The tenant says the windows had less leaking after the roof was fixed but still leaked if the weather and wind was facing the wrong way.
Both parties provided extensive evidence and some videos to support their claims.
I will deal with the landlord’s applications first and then the tenant’s applications.
This is a vacated tenancy where the landlord has moved into the premises on or after 5 May 2023.
Due to a ceiling collapse on 27 January 2023 after the severe weather event in Auckland, the living and dining room became unusable. Landlord’s Claims
The landlord has applied for rent arrears and has provided rent records to prove the amount owing.
The landlord also raised further claims at the hearing to be dealt with. These were electricity owing for the last bill, last 2 water invoices owing and damage to a light fixture.

How much is owed for rent ?

The tenancy ended on 5 May 2023. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.
For rent, the landlord claims $620.00 a week rent. The tenant disputes this saying because of the roof collapsed, he should get a 35% reduction in rent on the basis of not being able to use the lounge and dining areas. The landlord says based on the size of the space affected, it should only be a 25% reduction.
I am satisfied after hearing both parties there should be a rent reduction of 30%.
On that basis, I reduce the claim for rent arrears to $434.00 a week from 28 January 2023 to 5 May 2023. I have rounded the figure for the last week, noting the weather event occurred on 27 January 2023. That means [The tenant/s] owes $434.00 in rent arrears.
For the claim of water usage owing, according to the last 2 bills, there is $8.60 owing.
Ms Bishop and [The tenant/s] confirmed [The tenant/s] was paying fixed waste water charges from the water bills. Fixed charges are the responsibility of the landlord.
The bills provided by the landlord show that the fixed charges were approximately $20.00 to $23.00 a month. I take a conservative estimate of the fixed charges being $21.00 a month as not many of the previous bills are before me.
The Tribunal awards a set off compensation owed to [The tenant/s] being $714.00.
The tenant confirms he paid the electricity owing on the estimate provided by the landlord and the last wifi owing. The evidence provided for this claim by the landlord is not clear and the Tribunal is not satisfied there is money owing for these bills.

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 sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord says the lamp shade was damaged during the tenancy: The lamp shade is something the landlord bought after 2009 and before 2017. The landlord claims $264.65.
The lampshade is between 6 and 14 years old. The tenant says there was a piwakawaka that flew in and damaged the lamp shade. The tenant provided photos of the bird on the light wire above the shade.
The landlord has not satisfied the Tribunal the lamp shade was accidentally or intentionally damaged by the tenant. This was a natural event. Because the shade was over 5 years old and no receipt provided for any replacement shade, the Tribunal does not make an award for the damage. Tenant’s Claims Failure to Maintain
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.
Breaching any of these obligations 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 Residential Tenancies Act 1986.
The landlord was slow in repairing the windows and outside the timeframes given by the last Tribunal order.
The roof suffered a catastrophic failure after the [City] weather event and the ceiling collapsed. It was in the middle of repairs at the time.
Though the roof was repaired by 22 February 2023, the ceiling has taken longer to finish. The tenant had less space to live in the apartment.
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. See section 109(3) Residential Tenancies Act 1986.
The landlord knew the windows required fixing but says due to the roof repair the windows no longer leak.
Both parties also provided evidence of dampness in the home due to the failure to repair windows within a reasonable period of time.
The Tribunal is satisfied after hearing the evidence from [redacted] and seeing the photos and videos that there was excessive dampness on 17 March 2023. The landlord provided her own tests on or after 5 May 2023 that the premises was not as damp as claimed by the tenant.
The tests taken by both parties were favourable to their positions. It is likely on either day the tests were taken, the readings were right for that time. Limited weight can be given to this evidence.
The tenant produced a video where the landlord confirmed she was aware the property had been leaking since she bought it.
There are previous orders relating to this tenancy where the landlord was aware the windows needed repair. The tenant points these out in his evidence. I consider there is a persistent failure to repair and award further exemplary damages of $1500.00 to the tenant. Breach of Quiet Enjoyment
[The tenant/s] claims the landlord has harassed them by sending excessive emails and having conversations that he said made him uncomfortable as well as a lack of notice for contractors to enter the premises for work.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
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. See section 38(3) and Schedule 1A 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.
The landlord says she would only talk about property issues and technology. Some emails may be unusual but not to the level of harassment.
Some give and take about access was required to get the roof repaired after the storm and likely shorter than adequate notice occurred for the start of the work. This was a natural disaster and required a quicker response.
This claim is dismissed. Retaliatory Notice
On 24 February 2023 the landlord gave the tenant a notice ending the tenancy on 5 May 2023. The tenant claims the notice is retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
The landlord says she needed the premises to live in due to her own personal circumstances. The tenant says the notice eventuated after he asked when the ceiling was going to be fixed. The landlord says she did not see [The tenant/s] email about the ceiling. She would have been driving from [City 1] to [City 2] on that day.
The tenant has failed to satisfy the Tribunal the landlord was motivated by anything other than wanting to live in her apartment for her own personal use where she remains currently.
This claim is dismissed. Damage to Health
[The tenant/s] claims that living with 3 years in the apartment has affected his health. There is difficulty in seeing a causal nexis from the evidence provided about the tenant’s health to the apartment. The two Tenancy Tribunal hearing processes may have caused him stress but on the balance of probabilities, the evidence is insufficient to award any compensation on this ground.
Having heard from both parties, it is clear there was a cordial relationship between both parties for a large part of the tenancy until deterioration last year.
This claim is dismissed. Something Else
[The tenant/s] asks the Tribunal to make an order preventing the landlord from renting the apartment until all repairs are complete.
The Tribunal will take a dim view of any future claims regarding any failure to maintain issues if there are ongoing window leaks.
For all new tenancies, Healthy Homes Standards now apply and severe penalties can be awarded for breaches of these standards. Filing Fee
Because Cherry Frances Bishop succeeded with their claims I do not reimburse the filing fee. Suppression
The landlord and tenant are seeking suppression of identifying details in any publication of this order. If a party has wholly or substantially succeeded in the proceedings the Tribunal must make the order 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. Section 95A Residential Tenancies Act 1986.
Both parties have had some success in these proceedings. Having considered the factors in this case the Tribunal grants suppression of the tenant’s details as sought.
The Tribunal declines to suppress the landlord’s details and tenancy address as it is in the public interest the tenancy remains in the public arena for future potential tenants to have information about the tenancy. Costs
Costs for each party in preparing for the hearing are to fall where they lie given both have had some success in their applications.

Tenancy Tribunal case 4510209 — Exemplary damages at Unit/Flat 7, 341 Mount Eden Road, Mount Eden, Auckland

At a glance

Tenancy Tribunal case 4510209 — Exemplary damages at Unit/Flat 7, 341 Mount Eden Road, Mount Eden, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent ?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent ?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions