What was Tenancy Tribunal case 4524490 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 4524490?

Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4524490?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4524490?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9343811-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4524490 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 4524490?

Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4524490?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4524490?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9343811-Tribunal_Order_Redacted.pdf.

389 Oreipunga Road, Maungatautari, RD 2, Cambridge Tenancy Tribunal Case 4524490 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4524490 — net $2,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary Damages – Inadequate Insulation	$300.00	Exemplary Damages – Inadequate Insulation
Refund Bond Monies	$1,800.00	Refund Bond Monies
Filing Fee	$20.44	Filing Fee
Net award	$2,120.44
Total payable by Landlord to Tenant	$2,120.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the [Tenant] name and identifying details.
Noa Farms (2014) Limited Elle & Simon Clarke to pay [The tenant/s] $2,120.44 calculated as follows: DescriptionTenant Exemplary Damages – Inadequate Insulation$300.00 Refund Bond Monies$1,800.00 Filing Fee$20.44 Total award$2,120.44

Reasons

Both parties attended the hearing.
The Tenant is seeking exemplary damages for alleged unlawful acts of the Landlord. Non-Lodgement of Bond
[The tenant/s] claims the landlord has not lodged 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) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00: s 19(2) and Schedule 1A Residential Tenancies Act 1986.
The Landlord accepts it did not lodge the bond and says it was not aware of the requirement. The Landlord confirms it has the bond monies set aside and can refund the full amount of the bond to the Tenant is required.
The Tenant says Elle Clark told them they have other rental properties, and she has a black belt. The Tenant’s partner confirms Ms Clark said this.
Ms Clark was called into the hearing by phone.
I had the parties promise to tell the truth. The Tenant stuck by her story, as did her partner.
Ms Clark said she was currently having a hard time with her father passing. She sounded upset and said the Tenant’s allegations were offensive and untrue. She denied stating the Landlord had other rentals or that she had a black belt. She said she and Mr Clark have no other rental properties now, and never had. Not in their names, or under ownership by any other entity which they controlled or administered.
I had no reason to doubt the narrative of either party, although they were vastly different.
The Tenant suggested Ms Clark had been dishonest and deceptive on previous occasions.
Ms Clark met the Tenant and her partner at the premises for a second viewing. In the days leading up to this meeting, the Tenant had requested a tenancy agreement to review. The Tenant was sent a template tenancy agreement without any information in it. I have seen the Landlord’s email and a copy of the Tenancy Services standard form agreement is attached. I can also see the Tenant went back to Ms Clark asking for a completed, filled-in copy of the Tenancy Agreement.
Ms Clark turned up at the meeting and presented the Tenant with a different agreement which she says she purchased online.
The Tenant says she felt compelled to sign the agreement even thought she had not read it properly. She says she had not been given the opportunity to read the agreement before signing it and she was at a significant disadvantage because this was her first tenancy.
The Tenant did not have to sign the Agreement. She had asked for an Agreement in advance of the meeting and had not been sent the correct agreement.
I asked Ms Clark why she used a different agreement. Ms Clark said she thought it would be better than the one she had, and I gather she did not know the difference between the two and that is all that matters for the purposes of my inquiry.
I do not accept the Tenant’s suggestion that the Landlord has been deceptive or dishonest. I accept the Landlord’s clear, affirmative statement that it does not have nor has it ever other rentals.
Nevertheless, the Landlord has committed an unlawful act.
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.
While the Landlord has committed an unlawful act by not lodging the bond, I do not award exemplary damages as: a. The Landlord’s failure was not intentional. The Landlord explained they had never lodged bonds for previous Tenants, including a Police Officer, and they had held the money in a separate account. b. I was not convinced the Tenant had been unduly prejudiced by the Landlord’s failure to lodge the bond. c. I do not consider the public interest calls for punitive measures in this instance as the Landlord has not set about on a deliberate course to gain control over the Tenant’s money, or to use it for its own ends, and has been genuinely ignorant of its legal obligations. Incomplete/Inaccurate Insulation Statement
[The tenant/s] claims the landlord has not included insulation details in the tenancy agreement.
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so: s 13A(1B) and (1C) Residential Tenancies Act 1986.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00: s 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
Had the Tenant read the tenancy agreement it will have seen that it did contain an insulation statement, although the statement had not been filled-in as completely as it should have been.
I find Noa Farms (2014) Limited Elle & Simon Clarke has committed an unlawful act in not properly completing the insulation statement.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that 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) Residential Tenancies Act 1986.
While the Landlord has committed an unlawful act by not providing an accurate insulation statement , I do not award exemplary damages as: a. The Landlord believed the home was insulated and that is what they stated on the insulation statement. The Landlord was still convinced the home was properly insulated when I asked at the hearing. I gather they were ignorant as to the full extent of their obligations in s 13(1A) of the Act but had not tried to deceive the tenant. b. I was not convinced the effect of the unlawful act on the Tenant was considerable enough to warrant an award of exemplary damages. I discerned she was not aware of the s 13(1A) requirements herself until the end of the tenancy and had not read the tenancy agreement to know the nature and extent of the insulation in the home. That is not her job necessarily, as the insulation statement functions as a certificate or warrant of fitness as to the compliance of the premises with the Healthy Homes Standard pertaining to insulation. However, neither party was aware of such a certification until they were in dispute, so it is hard to show detrimental reliance in the Tenant’s case. There was no evidence of her having reported to the Landlord that the home was cold or lacked adequate insulation during the tenancy, which would have led to a probe into the state of the insulation. c. I do not consider the public interest calls for punitive measures in this case. However, the Landlord is now fully aware of their obligations and if they fail to comply with s 13(1A) in the future, there is likely to be an award of exemplary damages made against them.

Was the Insulation Adequate?

[The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
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 (1)(A) and Schedule 1A RTA.
The Landlord claims the insulation is adequate.
I am uncertain whether the insulation met the Healthy Homes Standards. I do not have an independent report to confirm whether the correct insulation was in the home but consider s 13A(1A) does shift the onus, such that, in the absence of a complete or accurate insulation statement, the Landlord must show the insulation does comply with the Healthy Homes Standards. That appears to me to be the intention behind s 13A(1A).
The Tenant and has referred me to photographs of the insulation in the ceiling (Insul-Fluff) and walls (Pink Batts).
The Landlord says there is a plastic lining (moisture barrier) underneath the home.
The Landlord was able to tell me whether the insulation was but could not say whether it met the required R values (3.3; Central North Island) identified in the Healthy Homes Standards. The ceiling Insul-Fluff appears quite old and compressed, and has diminished coverage in areas, according to the photographs, which is the best evidence I have.
I consider the Landlord has committed an unlawful act.
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) RTA.
While the Landlord’s unlawful act was unintentional, for the same reasons outlined at paragraph 29(a) above, I consider the Tenant will have been impacted adversely by the lack of proper insulation. As this is a first-time infraction for the Landlord, I award the Tenant $300.00 in exemplary damages.
The Landlord alluded to a cross-claim for exit cleaning but has not filed an application with the Tribunal. Consequently, I direct the Tenant to pay the Tenant his bond back.
Because the Tenant has substantially succeeded with the claim I have reimbursed the filing fee and granted her name suppression.

Claims and awards in Tenancy Tribunal application 4524490 — net $2,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary Damages – Inadequate Insulation	$300.00	Exemplary Damages – Inadequate Insulation
Refund Bond Monies	$1,800.00	Refund Bond Monies
Filing Fee	$20.44	Filing Fee
Net award	$2,120.44
Total payable by Landlord to Tenant	$2,120.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the [Tenant] name and identifying details.
Noa Farms (2014) Limited Elle & Simon Clarke to pay [The tenant/s] $2,120.44 calculated as follows: DescriptionTenant Exemplary Damages – Inadequate Insulation$300.00 Refund Bond Monies$1,800.00 Filing Fee$20.44 Total award$2,120.44

Reasons

Both parties attended the hearing.
The Tenant is seeking exemplary damages for alleged unlawful acts of the Landlord. Non-Lodgement of Bond
[The tenant/s] claims the landlord has not lodged 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) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00: s 19(2) and Schedule 1A Residential Tenancies Act 1986.
The Landlord accepts it did not lodge the bond and says it was not aware of the requirement. The Landlord confirms it has the bond monies set aside and can refund the full amount of the bond to the Tenant is required.
The Tenant says Elle Clark told them they have other rental properties, and she has a black belt. The Tenant’s partner confirms Ms Clark said this.
Ms Clark was called into the hearing by phone.
I had the parties promise to tell the truth. The Tenant stuck by her story, as did her partner.
Ms Clark said she was currently having a hard time with her father passing. She sounded upset and said the Tenant’s allegations were offensive and untrue. She denied stating the Landlord had other rentals or that she had a black belt. She said she and Mr Clark have no other rental properties now, and never had. Not in their names, or under ownership by any other entity which they controlled or administered.
I had no reason to doubt the narrative of either party, although they were vastly different.
The Tenant suggested Ms Clark had been dishonest and deceptive on previous occasions.
Ms Clark met the Tenant and her partner at the premises for a second viewing. In the days leading up to this meeting, the Tenant had requested a tenancy agreement to review. The Tenant was sent a template tenancy agreement without any information in it. I have seen the Landlord’s email and a copy of the Tenancy Services standard form agreement is attached. I can also see the Tenant went back to Ms Clark asking for a completed, filled-in copy of the Tenancy Agreement.
Ms Clark turned up at the meeting and presented the Tenant with a different agreement which she says she purchased online.
The Tenant says she felt compelled to sign the agreement even thought she had not read it properly. She says she had not been given the opportunity to read the agreement before signing it and she was at a significant disadvantage because this was her first tenancy.
The Tenant did not have to sign the Agreement. She had asked for an Agreement in advance of the meeting and had not been sent the correct agreement.
I asked Ms Clark why she used a different agreement. Ms Clark said she thought it would be better than the one she had, and I gather she did not know the difference between the two and that is all that matters for the purposes of my inquiry.
I do not accept the Tenant’s suggestion that the Landlord has been deceptive or dishonest. I accept the Landlord’s clear, affirmative statement that it does not have nor has it ever other rentals.
Nevertheless, the Landlord has committed an unlawful act.
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.
While the Landlord has committed an unlawful act by not lodging the bond, I do not award exemplary damages as: a. The Landlord’s failure was not intentional. The Landlord explained they had never lodged bonds for previous Tenants, including a Police Officer, and they had held the money in a separate account. b. I was not convinced the Tenant had been unduly prejudiced by the Landlord’s failure to lodge the bond. c. I do not consider the public interest calls for punitive measures in this instance as the Landlord has not set about on a deliberate course to gain control over the Tenant’s money, or to use it for its own ends, and has been genuinely ignorant of its legal obligations. Incomplete/Inaccurate Insulation Statement
[The tenant/s] claims the landlord has not included insulation details in the tenancy agreement.
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so: s 13A(1B) and (1C) Residential Tenancies Act 1986.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00: s 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
Had the Tenant read the tenancy agreement it will have seen that it did contain an insulation statement, although the statement had not been filled-in as completely as it should have been.
I find Noa Farms (2014) Limited Elle & Simon Clarke has committed an unlawful act in not properly completing the insulation statement.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that 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) Residential Tenancies Act 1986.
While the Landlord has committed an unlawful act by not providing an accurate insulation statement , I do not award exemplary damages as: a. The Landlord believed the home was insulated and that is what they stated on the insulation statement. The Landlord was still convinced the home was properly insulated when I asked at the hearing. I gather they were ignorant as to the full extent of their obligations in s 13(1A) of the Act but had not tried to deceive the tenant. b. I was not convinced the effect of the unlawful act on the Tenant was considerable enough to warrant an award of exemplary damages. I discerned she was not aware of the s 13(1A) requirements herself until the end of the tenancy and had not read the tenancy agreement to know the nature and extent of the insulation in the home. That is not her job necessarily, as the insulation statement functions as a certificate or warrant of fitness as to the compliance of the premises with the Healthy Homes Standard pertaining to insulation. However, neither party was aware of such a certification until they were in dispute, so it is hard to show detrimental reliance in the Tenant’s case. There was no evidence of her having reported to the Landlord that the home was cold or lacked adequate insulation during the tenancy, which would have led to a probe into the state of the insulation. c. I do not consider the public interest calls for punitive measures in this case. However, the Landlord is now fully aware of their obligations and if they fail to comply with s 13(1A) in the future, there is likely to be an award of exemplary damages made against them.

Was the Insulation Adequate?

[The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
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 (1)(A) and Schedule 1A RTA.
The Landlord claims the insulation is adequate.
I am uncertain whether the insulation met the Healthy Homes Standards. I do not have an independent report to confirm whether the correct insulation was in the home but consider s 13A(1A) does shift the onus, such that, in the absence of a complete or accurate insulation statement, the Landlord must show the insulation does comply with the Healthy Homes Standards. That appears to me to be the intention behind s 13A(1A).
The Tenant and has referred me to photographs of the insulation in the ceiling (Insul-Fluff) and walls (Pink Batts).
The Landlord says there is a plastic lining (moisture barrier) underneath the home.
The Landlord was able to tell me whether the insulation was but could not say whether it met the required R values (3.3; Central North Island) identified in the Healthy Homes Standards. The ceiling Insul-Fluff appears quite old and compressed, and has diminished coverage in areas, according to the photographs, which is the best evidence I have.
I consider the Landlord has committed an unlawful act.
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) RTA.
While the Landlord’s unlawful act was unintentional, for the same reasons outlined at paragraph 29(a) above, I consider the Tenant will have been impacted adversely by the lack of proper insulation. As this is a first-time infraction for the Landlord, I award the Tenant $300.00 in exemplary damages.
The Landlord alluded to a cross-claim for exit cleaning but has not filed an application with the Tribunal. Consequently, I direct the Tenant to pay the Tenant his bond back.
Because the Tenant has substantially succeeded with the claim I have reimbursed the filing fee and granted her name suppression.

Tenancy Tribunal case 4524490 — Exemplary damages at 389 Oreipunga Road, Maungatautari, RD 2, Cambridge

At a glance

Tenancy Tribunal case 4524490 — Exemplary damages at 389 Oreipunga Road, Maungatautari, RD 2, Cambridge

At a glance

Award balance

Claims & awards

Order

Reasons

Was the Insulation Adequate?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the Insulation Adequate?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions