What was Tenancy Tribunal case 4523629 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 4523629?

Compensation: $2,538.93 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4523629?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4523629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9199409-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4523629 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 4523629?

Compensation: $2,538.93 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4523629?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4523629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9199409-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4523629 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4523629 — net $3,559.37 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,538.93	Compensation
Exemplary damages	$1,000.00	Exemplary damages
Filing fee	$20.44	Filing fee
Net award	$3,559.37
Total payable by Landlord to Tenant	$3,559.37

Claims and awards in Tenancy Tribunal application 4523629 — net $3,559.37 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,538.93	Compensation
Exemplary damages	$1,000.00	Exemplary damages
Filing fee	$20.44	Filing fee
Net award	$3,559.37
Total payable by Landlord to Tenant	$3,559.37

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
Rainbow Trustee 2019 Limited must pay [The tenant/s] $3,559.37 immediately, calculated as shown in table below:
The landlord must carry out the following work to the premises, which must be completed by 13 September 2023: •Arrange for the garage door (the [Redacted] wooden door) to be assessed and repaired and, if necessary, replaced. •Arrange for the metal garage door to be assessed and if necessary repaired. •Arrange for a new assessment of the roof by a qualified roofer to assess whether it can be repaired or requires replacement. •Arrange for the premises to be assessed for the presence and the cause of any mould and to make any required repairs to prevent the presence of mould. •Have the premises assessed again for Healthy Homes Standards (HHS) compliance to ensure that the work undertaken to date meets the HHS and if not, to have additional work completed to ensure HHS compliance. •Have the smoke alarms assessed to ensure compliance with the required standards both as to the placement of the alarms and the type of smoke alarms installed.
As an alternative to compliance with Order 3, the landlord must pay the tenants $1,000.00 immediately after 13 September 2023 provided however that the landlord may apply for a time extension if there are delays beyond its control.
If the landlord fails to comply with either Order 3 or 4 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $3,000.00. These costs may be set off against rent payable.

Reasons

Both parties attended the hearing. Mr Zhang represented the landlord; he is a director of the landlord company. [Tenant 1] attended in person, [Tenant 2] by phone.
The tenancy started on 29 December 2022 and is a fixed term tenancy until 29 January 2024.
The tenants knew the previous tenant and entered this tenancy when the previous tenancy ended. They say there were issues from the beginning because the premises were not provided in a reasonably clean condition and not all the previous tenant’s goods were removed.
The parties reached some agreements around that. The tenants received a rent reduction in return for cleaning work they did.
After the [City] flooding event in January 2023, the tenants have been plagued with moisture, mould and repair issues.
Mr Zhang explained that the other company director, Ms Song, had managed the tenancy. He described her as an exemplary landlord who had spent considerable money on the premises built in the 1950s. He suggested that she might have been overwhelmed by some of the problems caused by the floods and he conceded that a different management approach might be required. I will return to that later.
The tenants became frustrated when repair issues were not fully addressed with them being plagued by continuing moisture and mould problems.
The tenants have applied to the Tribunal for work orders, compensation, exemplary damages, and a refund of increased rent from 2 February 2023 after they got a puppy. The rent increased $50.00 from $700.00 to $750.00.
The issues the Tribunal must determine are these: •Should works orders be made? •Should the tenants receive compensation? •Have the tenants proved that the landlord has committed unlawful acts? •If so, should they be awarded exemplary damages? •Should the rent increase be declared invalid?

Should works orders be made?

Under section 45(1)(a) - (ca) Residential Tenancies Act 1986 (RTA), the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds that the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) RTA.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) RTA.
Mr Zhang conceded that the Tribunal should make work orders to address the matters raised by the tenants.
The principal issue appears to be with the leaking roof. The tenants said that there are leaks every time it rains. While patch repairs have been done, they have not stopped the leaking. In turn, parts of the premises are mouldy and require regular cleaning.
There are other matters for which it is appropriate for the Tribunal to address by way of work orders.
I have made orders for the following work to be done. The landlord must: •Arrange for the garage door (the [Redacted] wooden door) to be assessed and, if necessary, repaired or replaced. •Arrange for the metal garage door to be assessed and if necessary repaired. •Arrange for a new assessment of the roof by a qualified roofer to assess whether it can be repaired or requires replacement. •Arrange for the premises to be assessed for the presence and cause of any mould and to make any required repairs to prevent the presence of mould. •Have the premises assessed again for HHS compliance to ensure that the work undertaken to date meet the HHS and if not, to have additional work completed to ensure HHS compliance. •Have the smoke alarms assessed to ensure compliance with the required standards both as to the placement of the alarms and the type of smoke alarms installed.
This work must be completed by 13 September. If not, the landlord must pay the tenants $1,000.00 immediately after that. Given the situation in [City] with multiple flooding events, the landlord may apply for an extension of time should it not be able to complete the work for reasons beyond its control.
If the landlord neither complies with the work orders nor pays the consequential money order, the tenants may have the work done up to an amount of $3,000.00 which amount may then be deducted from rent owing.

Should the tenants receive 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 also for alleged breaches of their quiet enjoyment due to unannounced visits by trades people assessing and undertaking repairs.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must take into account 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.
The tenants’ actual losses included the replacement of curtains ($1329.93) and curtain rods ($280.00) damaged by mould; power used by contractors ($340.00); excess water charges ($100.00); and the replacement of a near new couch damaged by mould due to leaking ($769.00).
Mr Zhang agreed to the compensation amounts claimed by the tenants. I award them compensation of $2,538.93 by consent.
I award no other compensation at this time. Unannounced visits by tradespeople can be frustrating but in the current environment in [City] they are largely beyond a landlord’s control.

Have the tenants proved that the landlord has committed unlawful acts?

I find that the landlord did not complete the tenancy agreement accurately. The premises were not HHS compliant as certified. The HHS report which Mr Zhang said was completed on 10 March 2023 showed that 4 matters required work for the HHS to be met.
Landlords generally have 90 days from the start of a new tenancy to ensure HHS compliance. Here, the report was obtained within time, even if full compliance might not have been achieved. And it is possible that the premises remain not fully compliant. I have made a work order to address that.
I find that the landlord acted negligently rather than intentionally. By that I mean that the landlord did not turn their mind to the unlawful act and then deliberately set about to commit it. Rather, the landlord took steps to ensure compliance. I cannot determine whether full compliance has been achieved. It would seem from the evidence it has not.
But without the required element of intent, no award of exemplary damages is made for this breach.
I find that the premises probably did not have a compliant smoke alarm(s) and still do not have compliant working alarms.
This is a serious breach because it goes to the heart of tenant safety.
I have made a work order for the landlord to have the smoke alarms assessed for compliance. A good starting point would be to ask the Fire Services to conduct an assessment.

Should the Tribunal award exemplary damages?

Exemplary damages 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.
I find that the landlord, by not ensuring that there were compliant working smoke alarms acted intentionally. This caused the tenants worry and concern and was against their interests. A failure to ensure working compliant smoke alarms is against the public interest also.
I award the tenants exemplary damages of $1,000.00 for this unlawful act (the maximum amount for this breach is $7,200.00).
I make no other awards of exemplary damages. Although the leaking roof has continued to cause the tenants inconvenience, the landlord has taken some actions to repair it. Mr Zhang said the landlord was willing to do further repairs and to assess the replacement of the roof. But this is not the right time of year for that work. And roof replacement might require the tenancy to end.
I have made a work order as the more appropriate action to address this issue.

Should the rent increase be declared invalid?

I have decided not to interfere with the increase in rent because it was the result of the tenants deciding to keep a puppy. The tenancy agreement provided that no pets be kept and for that reason the rent was set at $700.00 per week.
The previous tenant paid rent of $750.00 which allowed for a pet. Although there is no evidence of an agreement being reached, although there seems to have been some discussion, I consider that the increase was objectively reasonable; the tenants initially accepted the tenancy without them being able to keep a pet. When they decided to get a puppy, the terms of the agreement changed.
I dismiss the application for a refund of the additional rent Result
The landlord will pay the tenants $3,559.37 comprising compensation of $2,538.93 by consent, exemplary damages of $1,000.00 for the failure to provide compliant working smoke alarms, and the filing fee of $20.44. Name suppression
The tenants sought a name suppression order and are entitled to that because their application is mostly successful. I make no order suppressing the landlord’s name Comment
Mr Zhang said he would now step up and manage the tenancy, something the tenant [The tenant/s] thought was a positive step. With the work orders made, there is no reason why this tenancy should not continue beyond the end of the current fixed term. [The tenant/s] said the tenants generally enjoyed living at the premises.

Tenancy Tribunal case 4523629 — Exemplary damages

At a glance

Tenancy Tribunal case 4523629 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Should works orders be made?

Should the tenants receive compensation?

Have the tenants proved that the landlord has committed unlawful acts?

Should the Tribunal award exemplary damages?

Should the rent increase be declared invalid?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should works orders be made?

Should the tenants receive compensation?

Have the tenants proved that the landlord has committed unlawful acts?

Should the Tribunal award exemplary damages?

Should the rent increase be declared invalid?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions