What was the outcome of Tenancy Tribunal case 4513629?

The tribunal order states: An application for suppression has been made in this case by the landlord but

How much money was awarded in case 4513629?

Compensation: $800.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4513629?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4513629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9459006-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4513629?

The tribunal order states: An application for suppression has been made in this case by the landlord but

How much money was awarded in case 4513629?

Compensation: $800.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4513629?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4513629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9459006-Tenancy_Tribunal_Order.pdf.

41 Tudor Road, Henderson, Auckland 0610 Tenancy Tribunal Case 4513629 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4513629 — net $2,320.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$800.00	Compensation
Exemplary damages – breach of section 45(1)(c) RTA	$1,500.00	Exemplary damages – breach of section 45(1)(c) RTA
Filing fee	$20.44	Filing fee
Net award	$2,320.44
Total payable by Landlord to Tenant	$2,320.44

Claims and awards in Tenancy Tribunal application 4513629 — net $2,320.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$800.00	Compensation
Exemplary damages – breach of section 45(1)(c) RTA	$1,500.00	Exemplary damages – breach of section 45(1)(c) RTA
Filing fee	$20.44	Filing fee
Net award	$2,320.44
Total payable by Landlord to Tenant	$2,320.44

Order

An application for suppression has been made in this case by the landlord but no suppression order is made.
Wei Xiong Chen and Irene Lao must pay Sally Ann Benzie, Hannah Benzie and Thomas Benzie $2,320.44 immediately, as calculated below:
The tenants’ application for a refund of their moving costs and for carpet cleaning is dismissed.
The tenants’ application for a declaration that the notice to terminate the tenancy was a retaliatory notice is dismissed.
The tenants’ application for exemplary damages for breaches other than a breach of section 45(1)(c) RTA is dismissed.

Reasons

Both parties attended the hearing which I conducted on 25 September 2023.
I have added Irene Lao as a landlord party. She and Mr Chen own the property where the tenancy premises are located.
I heard evidence from all the parties and from a witness for the tenants, Mr Stutter.
The Tribunal was assisted by an interpreter for the landlord. Background
The tenancy started on 6 January 2022. Initially, the tenants rented the upstairs part of the premises. They then rented the whole of the premises (the downstairs area comprises 2 bedrooms, a kitchen, and a living room). The tenants rented that part of the premises to tenants who were either subtenants or flatmates. For the purposes of this application, nothing turns on that.
After those tenants vacated, the tenancy reverted to the original upstairs part of the premises only. My reference to the premises will be to the upstairs part of the premises which the tenants occupied.
The tenancy ended on 28 March 2023. The landlord refunded the bond to the tenants in full and there are no outstanding bond issues to be determined.
The tenants have applied for compensation and exemplary damages for breaches by the landlord of their responsibilities under the Residential Tenancies Act 1986 (RTA), some of which they say amount to unlawful acts. Issues
The issue for the Tribunal to determine are these: •Was the electrical wiring at the premises unsafe and unlawful? Was there a landlord breach? •Were the premises damp and mouldy? Was there a breach of the Healthy Homes Standards (HHS)? •Did the landlord fail to provide insurance information to the tenants? •Did the landlord fail to provide a new tenancy agreement to the tenants when the tenancy changed to include the downstairs part of the premises? •Did the landlord incorrectly terminate the tenancy? Was the notice to terminate a retaliatory notice? •Can the tenants claim the costs they incurred moving from the premises? •Should the tenants be reimbursed the cost of professional carpet cleaning required by the landlord? Legal considerations Compensation
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. The tenant’s compensation claims are for actual losses and for the loss of enjoyment of the tenancy.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding whether to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party. Exemplary damages
Exemplary damages are different. They are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Otautahi Community Housing Trust (referred to above) the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.

Was the electrical wiring at the premises unsafe and unlawful?

The tenants produced photographic and other evidence that establishes on the balance of probabilities that the electrical wiring at the premises had been altered, was non-compliant and was potentially unsafe.
Mr Stutter gave evidence about the actions he took to investigate this issue and ensure that the earth wire at least was made ‘not dangerous’.
Mr Stutter said he did the work when electricians would not. Although he was not currently licensed to do electrical work, he said he knew what he was doing due to his past occupation as an electronics engineer in which he had a limited electrical registration. He said he was concerned to make the premises as safe as possible.
This issue resulted in a referral to, and investigation by, Worksafe. It was also raised in a meeting the tenants had with the landlord and the issue was referred to the Electrical Workers Registration Board.
The landlord said they purchased the premises in 2008. The house was over 70 years old, and they said they now had a certificate of compliance. They said the electrical standards now were greater than they were in the past.
The landlord said they had rented the premises for over 10 years and previous tenants had never experienced issues with the wiring.
The landlord said that some of the power outages the tenants complained of were due to power network upgrades that they notified the tenants about.
The evidence shows that some wiring work was done in 2011. In response to my questions, the landlord said they had some electrical work done by a former tenant who lived at the premises for 5-6 years. He separated the switchboard to make his power bills cheaper. He installed a check meter. They agreed to let him do that work because he was an electrician for a power company.
The confirmed they never received a certificate of compliance from their former tenant who did the electrical work.
I find that the electrical work to the switchboard, probably done by the landlords’ previous tenant in 2011, was non-compliant work for which no code of compliance certificate was issued.
The work that tenant did, with the landlord’s consent, resulted in a potentially hazardous situation. It has since been rectified by a licensed electrician and a code of compliance issued.
A landlord has a responsibility to comply with all requirements in respect of buildings, health, and safety under any enactment – see section 45(1)(c) RTA. A failure to do so is an unlawful act for which exemplary damages up to $7,200.00 may be awarded – see section 45(1A) and Schedule 1A RTA.
Although this breach probably first occurred in 2011, it was a continuing breach. The landlord’s failure to ensure the work done by their former tenant was compliant, when they authorised that work, goes beyond negligence. I find that the element of intent is established.
Considering the factors set out in Birch above (including the effects on the tenant of which fortunately, there were few, and the public interest, which for health and safety is an important factor) I award the tenants exemplary damages of $1,500.00 for this breach amounting to an unlawful act.
The landlord’s action, or rather inaction, by not ensuring that the electrical work they authorised was compliant, could have had more serious consequences in which case the amount awarded as a punishment and as a deterrent would have been far greater. Were the premises damp and mouldy? Was there a breach of the Healthy Homes Standards (HHS)?
The tenants produced photos that show some areas of mould under wall coverings. However, the evidence does not establish that the premises were not compliant with the HHS.
Even HHS compliant properties can have repair and maintenance issues. That does not mean they suddenly become HHS non-compliant.
There is insufficient evidence for the Tribunal to conclude that these premises were HHS non-compliant. The landlord produced in evidence a certificate of compliance with the HHS dated 5 May 2022. While slightly beyond the compliance timeframe for this tenancy, the Tribunal does not find that the landlord committed an unlawful act.
The Tribunal is well aware of the weather events that have plagued Auckland especially earlier in the year and that many properties have experienced leaking and mould as a result.
The landlord said the premises were assessed for HHS compliance in 2021 before the tenancy started; their agent at the time arranged for that to happen.
The tenants said they told the landlord about leaking issues in the upstairs bedroom in August 2022, but nothing was done. They said they were well aware of weather events and the difficulty getting trades people and they accepted that the weather was an issue that caused some issues and then delayed repairs.
The landlord said that the weather events in Auckland caused some issues at the premises, and they acted as soon as they could to have repairs done but no-one was prepared to assess the roof due to on-going bad weather. They said they were disappointed with the tenants because the premises were generally in good condition and the tenants enjoyed living there.
That there was some mould behind the wallpaper in the upstairs bedroom is obvious from the photos. This caused the tenants some loss of enjoyment of the tenancy as did leaking which caused dampness. The tenants were concerned about the effects of the leaking and mould. They had to use a dehumidifier.
Compensation is not punitive. It simply recognises a loss of enjoyment of the tenancy. The compensation I have awarded the tenants takes into account this loss of enjoyment due to mould, leaking and dampness.

Did the landlord fail to provide insurance information to the tenants?

The tenancy agreement records that the landlord was insured, and it noted that the tenants can request a copy of the policy.
The tenants gave evidence that they asked for a copy of the policy more than once, but they were never given it.
The landlord gave evidence that they instructed an agent to find these tenants. They said they emailed the insurance policy to their agent. They said they did not understand why the tenants wanted to have a copy of the policy.
Although the landlord instructed an agent to find tenants it was they who signed the tenancy agreement. I accept that they emailed the insurance policy to their agent at her request, but they did not provide it to the tenants when they asked (more than once) for it.
This breach is a technical breach. I do not find that the landlord acted with intent which is a necessary element before the Tribunal can award exemplary damages. Negligence is not sufficient.
I dismiss the tenants’ application for exemplary damages for this breach. Did the landlord fail to provide a new tenancy agreement to the tenants when the tenancy changed to include the downstairs part of the premises?
When the parties agreed that the tenants would also rent the downstairs part of the premises, there were two options available to them. They could have amended the existing tenancy agreement to include the additional space, or they could have entered a new tenancy.
Then, once the tenants gave up that part of the premises, the same alterations would have been needed.
It seems to the Tribunal that this was never an issue for the tenants until they decided to lodge their application. By then, they seemed to identify any potential landlord breach and include it as part of their application.
When the tenancy was extended to include the additional downstairs area, the tenants were entitled to know whether the premises overall complied with the HHS.
There was no additional HHS statement provided to the tenants.
What seems to have happened was that there was an informal verbal agreement reached to include the additional area for an increased rent.
Again, while there was a breach by the landlord not amending the HHS statement, the Tribunal does not find that the landlord acted with intent. At best, the landlord was negligent by not ensuring that there was a new, or amended tenancy agreement, with the completed HHS statement that applied to the premises as a whole.
As noted, negligence is not sufficient; exemplary damages can only be awarded when the party against whom they are sought has acted intentionally.
I dismiss the tenants’ application for exemplary damages. Did the landlord incorrectly terminate the tenancy? Was the notice to terminate a retaliatory notice?
The Tribunal is satisfied that the landlord had grounds to terminate the tenancy. The premises required considerable rewiring work to rectify the non-compliant work earlier done.
The tenants said they advised the landlord at the meeting they held on 6 March 2023 that they wanted to stay at the premises. Three days after the landlord was contacted by Worksafe, they then received the notice to terminate the tenancy. No reason was given.
The tenants then decided to leave the tenancy and vacated on 28 March 2023. The landlord agreed that they could vacate the tenancy.
The tenants said they were told the electrical work would take 4 weeks, but after 2 weeks the premises were tenanted again.
The landlord said the tenants told them that they were intending buying a house, so the tenancy was a periodic tenancy. They said they could give 90 days’ notice to terminate the tenancy, which they did.
The landlord said the electrician told them no-one could live at the premises while the electrical rewiring work was being done. They relied on that advice. The length of time for the work was out of their control.
The landlord said the downstairs tenants were not affected; the rewiring work only affected the upstairs part of the premises. They said it was reasonable for them to re-tenant the premises as soon as they had a certificate of compliance.
The landlord said they told the tenants they could move back once the work was completed. The tenants disagreed that such an offer was made.
I can understand why the tenants believed that the notice to terminate the tenancy was retaliatory on them referring the electrical wiring issue to Worksafe. However, I accept the landlord’s evidence that they relied on their electrician’s advice that the upstairs part of the premises needed to be vacant. The work was done. And while the notice to terminate could have provided a better explanation, it was a notice that the landlord was able to give.
I do not find that the notice to terminate the tenancy was unlawful, nor that the landlord acted in a retaliatory manner. Given all the actions the tenants had taken reporting the state of the electrical wiring, this was necessary repair work.

Can the tenants claim the costs they incurred moving from the premises?

The tenants cannot claim the costs they incurred moving from the premises. After the landlord gave 90 days’ notice to terminate the tenancy, the tenants left quickly. They did not give the required 28 days’ notice. The landlord accepted the shorter notice period they gave.
Whether the tenancy ended when it did, or later by either party giving notice for some other reason, the tenants would have incurred the same costs for moving. The decision to incur the costs they did was theirs. The Tribunal makes no order reimbursing those costs. This claim is dismissed. Should the tenants be reimbursed the cost of professional carpet cleaning required by the landlord?
Tenancy agreements cannot impose greater requirements on tenants than those imposed by the RTA. So, a clause requiring commercial carpet cleaning is unenforceable.
The enquiry is whether the tenants left the premises, including the carpets, reasonably clean.
The tenants kept 2 small dogs at the premises. When pets are kept inside, the Tribunal usually considers it reasonable for the carpets to be professionally cleaned. In the Tribunal’s experience when tenants clean the carpets themselves by using say a Rug Doctor, more problems result than are solved.
So, while the landlord’s insistence that the carpets be professionally cleaned was wrong, it was objectively reasonable in the circumstances for the landlord to ask the tenant to have the carpets professionally cleaned, as animals had been kept inside.
The Tribunal makes no order requiring reimbursement of the costs the tenants incurred for carpet cleaning. This claim is dismissed. Result
The landlord will pay the tenants $800.00 as compensation for the tenants’ loss of enjoyment of the tenancy due to leaking, mould, and dampness and for the worry associated with the non-compliant wiring at the premises. In addition, the landlord will pay the tenants exemplary damages of $1,500.00 for their failure to comply with their section 45(1)(c) RTA responsibilities.
I award the filing fee to the tenants. Name suppression
The tenants did not seek a name suppression order.
The landlord sought a name suppression order. No order is made as the landlord has not fully succeeded in their defence of the tenants’ claims – see section 95A RTA. Comment
My decision was delayed by a few days beyond the indicative date I gave to the parties. I apologise to them for that. I was briefly unwell.

Tenancy Tribunal case 4513629 — Exemplary damages at 41 Tudor Road, Henderson, Auckland 0610

At a glance

Tenancy Tribunal case 4513629 — Exemplary damages at 41 Tudor Road, Henderson, Auckland 0610

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the electrical wiring at the premises unsafe and unlawful?

Did the landlord fail to provide insurance information to the tenants?

Can the tenants claim the costs they incurred moving from the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the electrical wiring at the premises unsafe and unlawful?

Did the landlord fail to provide insurance information to the tenants?

Can the tenants claim the costs they incurred moving from the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions