What was Tenancy Tribunal case 4544335 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 4544335?

Alarms And HHS: $2,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $971.43 awarded to landlord; Weeks: $454.00 awarded to tenant

What type of tenancy dispute was case 4544335?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4544335?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11472439-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4544335 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 4544335?

Alarms And HHS: $2,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $971.43 awarded to landlord; Weeks: $454.00 awarded to tenant

What type of tenancy dispute was case 4544335?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4544335?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11472439-Tribunal_Order_Redacted.pdf.

47 Kairimu Street, Stokes Valley, Lower Hutt 5019 Tenancy Tribunal Case 4544335 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4544335 — net $5,593.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 27 April 2023	$971.43		Rent arrears to 27 April 2023
weeks		$454.00	weeks
Exemplary damages: maintenance, no smoke		$2,000.00	maintenance, no smoke
alarms and HHS		$2,000.00	alarms and HHS
Exemplary damages: terminating the tenancy		$1,000.00	terminating the tenancy
Exemplary damages: no written tenancy agreement		$250.00	no written tenancy agreement
Exemplary damages: bond not lodged		$500.00	bond not lodged
Filing fee reimbursement		$20.44	Filing fee reimbursement
Bond paid and not lodged		$340.00	Bond paid and not lodged
Total award	$971.43	$6,564.44
Net award		$5,593.01
Total payable by Landlord to Tenant		$5,593.01

Claims and awards in Tenancy Tribunal application 4544335 — net $5,593.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 27 April 2023	$971.43		Rent arrears to 27 April 2023
weeks		$454.00	weeks
Exemplary damages: maintenance, no smoke		$2,000.00	maintenance, no smoke
alarms and HHS		$2,000.00	alarms and HHS
Exemplary damages: terminating the tenancy		$1,000.00	terminating the tenancy
Exemplary damages: no written tenancy agreement		$250.00	no written tenancy agreement
Exemplary damages: bond not lodged		$500.00	bond not lodged
Filing fee reimbursement		$20.44	Filing fee reimbursement
Bond paid and not lodged		$340.00	Bond paid and not lodged
Total award	$971.43	$6,564.44
Net award		$5,593.01
Total payable by Landlord to Tenant		$5,593.01

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Tracey Po Ching must pay [The tenant/s] $5,593.01 immediately, calculated as shown in table below.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
Mr Po Ching died in 2024. I joined Mrs Po Ching as a party and she and her lawyer, Mr Ah Kuoi, attended the hearing. It is my intention this order can be enforced against Mrs Po Ching.
It is agreed evidence the tenancy premises is a house owned by Mr Po Ching. The three tenants living in the house all worked for Mr Po Ching. This was not a service tenancy because there was no tenancy agreement explaining that the house might be needed for workers. This was not a boarding house tenancy because there was no boarding house tenancy agreement, and less than six people lived in the house. This was a regular tenancy in a regular house.
This tenancy lasted about 6 months. The tenancy ended when the landlord served a trespass notice. The tenant has applied for compensation and exemplary damages for tenancy breaches because the house was not in a reasonable condition, because there were no grounds to end the tenancy, and because his belongings disappeared at the end of the tenancy. The landlord has claimed rent arrears, compensation and exemplary damages because of breaches by the tenant relating to drugs.
The questions I have to decide include: • Did the tenant use the tenancy premises for an unlawful purpose? • Was the house in a reasonable condition? • Did the landlord end the tenancy using the correct procedure? • Did the landlord take the tenant’s belongings? • Were there other breaches of the Residential Tenancies Act 1986? • How much is owed for rent? • Did the tenant damage the tenancy premises? • Should the landlord get compensation?

Did the tenant use the tenancy premises for an unlawful purpose?

The landlord claims the tenant used illegal drugs in the house and stored illegal drugs in the house. The law states that a tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986 (RTA).
In support of the claim the landlord provided photos taken in the tenant’s room in the last days of the tenancy. In the photo there are syringes, what look like drug utensils, what looks to be marijuana, pills, and a bag of white powder. These are all sitting on top of a dressing table next to the bed in the tenant’s room. Mr Po Ching called the police who did not charge anyone in the house, apparently because the tenant was not there when the drugs were found and because it was a shared house.
I note the landlord has a quote for “laboratory discrete wipe analysis”. In a text dated 8 June 2023 Mr Po Ching states a “Drug lab” tested the room and there were “high results of meth” so the tenants belongings were “discarded in rubbish for everyone’s safety”. I have not been provided with any laboratory results and the landlord did not carry out any testing for contamination before the tenancy started.
The landlord asked three witnesses about the drugs. The office administrator said when they interviewed the tenant for his job he spoke fast, was very energetic and had dried saliva in the edges of his mouth. One of the other tenants in the house said he saw the drugs in the tenant’s bedroom on the day the photos were taken. He also said the tenant once offered him a pill he said was cocaine, but he turned that down. The other tenant said he knew nothing about the drugs because he was not in the house when they were found. He also said he had been convicted of drugs charges years ago.
The tenant said the drugs and the drug utensils on the dressing table did not belong to him. He said he does not take drugs. He said he did not take drugs at the time he lived in the house. He said he was very suspicious of the timing because the drugs appeared in his room at the time the landlord was trying to get him to move out.
This is the landlord’s claim to prove. The landlord is required to establish the claim to the civil law standard of proof, on the balance of probabilities. I am not more persuaded by the landlord’s evidence. There could be a number of explanations for the tenant’s behaviour at the interview. The other two tenant’s living in the house at the time were also employed and housed by Mr Po Ching, so there is a conflict there. There is no supporting documentation that the tenant’s room was contaminated with methamphetamine. What is most surprising is that the police did not charge any of the tenants, even though there was a dressing table full of what appear to be illegal drugs.
I do not find the landlord has proved the tenant used the tenancy premises for an unlawful purpose. This claim and the associated claim for compensation for damage caused by drugs are dismissed.

Was the house in a reasonable condition?

The tenant claims that the landlord has breached his obligations under section 45 of the RTA which require the landlord to: • provide the premises in a reasonable state of cleanliness • provide and maintain the premises in a reasonable state of repair • comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and 2019. • comply with any relevant enactment in relation to buildings, health and safety.
This is the tenant’s claim to prove. The tenant provided me with photos and a short video showing the condition of the tenancy premises. There is insufficient evidence to prove the house was not reasonably clean when the tenant moved in. There is sufficient evidence to show the house was not in a reasonable state of repair because: • water dripped through a hole in the lounge ceiling every time it rained • the drip came through a light fitting • the lounge carpet was wet from the dripping water and had a bad odour • there was a hole in the door to the outside in his bedroom • the shower was mouldy and broken • the toilet was old and discoloured • there were no smoke alarms.
The tenant also claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Compliance dates for the HHS vary depending on the tenancy. Using the landlord’s evidence that the first lot of rent was deducted from wages on 23 October 2022 I find the compliance date for this tenancy was 19 February 2023, 120 days after the start of the tenancy.
The tenant considers that the landlord has failed to comply with the HHS draught stopping standard which requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. It seems most likely to me from the photos that the house was draughty.
The tenant considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard. This standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The standard also requires a ground moisture barrier when there is an enclosed subfloor space. It seems most likely to me from the photos and the tenant’s submissions that the house did not meet this standard.
The tenant considers that the landlord has failed to comply with the HHS ventilation standard. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. It seems most likely there were no extractor fans.
The tenant said Mr Po Ching was well aware of the state of the house because he used to visit frequently and sometimes drank there after work with the other tenants.
The landlord submitted that the house was “liveable”. Mrs Po Ching said that the tenant’s father was a good friend of theirs and they offered to give the tenant a job and a place to stay while he looked for proper accommodation. She said the aim was to help their friend by helping the tenant.
The lawyer submitted that the housing was always meant to be “transitional accommodation”, to give the tenant a chance to settle down, get some money and move on. The relationship between the father and the Po Chings was “like family”. The arrangement was informal and intended for a short period of time, which is why they never signed a tenancy agreement. Mr Po Ching only asked for a bond because of the tenant’s history. The house was reasonable for the tenant to stay in for a short time. Mr Po Ching had always intended to renovate the house and that was done, after the tenant moved out.
The tenant replied that there was no close friendship between his father and Mr and Mrs Po Ching. He said no one ever explained to him the tenancy was intended to be short term. He stayed there almost six months and he was charged $170 a week for rent. He said he felt stuck because he was an employee as well as a tenant.
I find the RTA applied to this tenancy. Even if I accept the landlord’s submissions in full, there are no exclusions in the RTA which allow a family friend to charge rent for a substandard house because it is only for a short term. It seems most likely to me Mr Po Ching knew the condition of the house when the tenant lived there. I find there was a breach of the duty to repair and maintain and a breach of the HHS.
The tenant has claimed compensation. I find there was a loss of amenity and the tenant was paying more rent than he should have. I find $17 a week for the 26 and a bit weeks he lived there to be reasonable compensation. In deciding that amount I have weighed up the weekly rent and the fact the tenant had somewhere to live during this time.
Breaching any of the obligations under section 45 RTA or the HHS is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200. See section 45(1A) and Schedule 1A RTA.
I find the landlord has committed an unlawful act. 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. See section 109(3) RTA.
The decision to charge rent and take a bond from the tenant in exchange for a house that leaked and did not meet HHS requirements must have been intentional. It seems unlikely to me that Mr Po Ching, who was in the building trade, did not know about the HHS. In any event landlords are required to educate themselves on the legal requirements when renting a house. The effect for the tenant was that he felt trapped because the house was a depressing place to live. It is in tenants interests that houses are warm and dry. There is public interest in landlords paying exemplary damages when there is a breach of the RTA as an incentive for future compliance.
I allow exemplary damages in the amount of $2000. This is at the lower end of the scale because I am not aware of any similar orders against Mr Po Ching. I also note that Adjudicators usually allow around one third of the maximum for a first breach by the landlord.

Did the landlord end the tenancy using the correct procedure?

The tenant claims that the landlord has breached his obligations under section 60AA RTA which states that a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so. Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
This is the tenant’s claim to prove. The tenant provided documents in support of this claim. On 5 April 2023 Mr Po Ching sent a notice about rent arears. The next day he sent a text stating that he had consulted with the “Tenancy Tribunal” and the tenant had 10 days to pay the rent arrears and 48 hours to leave the house if the money was not paid. On 27 April Mr Po Ching served a trespass notice on the tenant. The tenant said he first knew about this when he saw a photo on a text sent by one of the other tenants, who also advised his belongings had been put into boxes and would be left on the street. I have also seen text messages dated 2 May where Mr Po Ching states that the tenant is not allowed back in the house because of “the arrears in board/rent”.
The correct procedure for ending a tenancy under the RTA because of rent arrears, or because of a breach of the tenant’s responsibilities, or because of drugs, are set out in sections 50, 55 and 56 and require an application to the Tenancy Tribunal. Section 66 allows the landlord of a boarding house to terminate on 48 hours notice after giving a notice about rent arears, but this was not a boarding house tenancy. I find the landlord’s actions in serving a trespass notice and refusing entry to the tenancy premises were intended to end the tenancy without grounds.
The tenant has applied for compensation and exemplary damages. The loss to the tenant relates to the loss of belongings, which is considered next. Exemplary damages can be awarded. The same considerations apply.
Landlords are expected to know the law about ending tenancies and to get advice if they are not sure what steps to take. It seems most likely to me that Mr Po Ching acted intentionally. The effect for the tenant was stress and panic because he was no longer able to access his belongings. It is tenants interest that their rights are upheld and there is public interest in a penalty for this landlord. I allow exemplary damages in the amount of $2000, again because I am not aware of any previous orders. Did the landlord take the tenant’s belongings?
The tenant claims the landlord took his belongings at the end of the tenancy. He said he was told by text his belongings would be boxed up and left outside so he could collect them. He was told the police had his belongings. He was also told his belongings were contaminated by methamphetamine and had to be thrown out. The only item the tenant retrieved was his TV, which he collected three days before the trespass notice was served. His claim is for $16,300.
The law states that a landlord must not seize or dispose of any of the tenant’s goods, except where they are disposed of under sections 62 to 62C of the RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $3,000. See section 33 and Schedule 1A RTA.
This is the tenant’s claim to prove. The tenant provided me with a list of belongings he said went missing at the end of the tenancy. There are no purchase receipts to help prove value and age for depreciation purposes. The photos are dark and do not establish that the tenant was in possession of the items. This means the claim for compensation is not proved.
I find the landlord should allow pay exemplary damages. I have no doubt the landlord acted intentionally to prevent the tenant from collecting his belongings because the tenant owed rent. The tenant described this loss as devastating and life changing because he lost tools as well as personal items. It is tenants interests that landlords respect their belongings and there is public interest in a penalty to encourage compliance. I allow $1000 which is at the lower end of the scale because I am not aware of any previous breaches by the landlord.

Were there other breaches of the RTA?

The tenant claims the landlord did not provide a tenancy agreement. A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750. See section 13, 13(4) and Schedule 1A RTA.
The landlord has not been able to provide me with a copy of the tenancy agreement. I do not accept the accommodation was a favour to a friend. It seems most likely to me there was no written agreement which is an unlawful act. The same considerations apply. Providing a tenancy agreement is a basic requirement for any tenancy. I find the decision not to provide one was intentional. The lack of an agreement was problematic because the tenant did not know his rights. It also meant he was not provided with a HHS statement, which would have alerted the tenant to the lack of HHS compliance. It is in tenants’ interests that landlords disclose compliance before the start of a tenancy so tenants can make informed decisions. There is public interest in landlords paying exemplary damages for breaches of the RTA. I allow $250.
It is agreed evidence the bond was not lodged with the Bond Centre. Landlords must send any bond payment to the Bond Centre within 23 working days after the payment is received. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500. See section 19, 19(2) and Schedule 1A RTA.
The requirement to lodge the bond is well known. I find the landlord choosing not to lodge the bond was intentional. The affect for this tenant is that he has had to wait years for an order to refund the bond. Usually I can make an order for the Bond Centre to refund the bond, but that will not be possible here. I note there is still no guarantee the bond money will be paid to the tenant. It is in tenants’ interests that bonds are held by an independent third party and there is public interest that landlords are penalised for the breach. I allow $500.
The tenant claims the landlord has entered the premises without consent or notice. A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
The landlord submitted that Mr Po Ching only entered the house when he had the consent of the other tenants. Given that this was a shared tenancy I am not persuaded I should allow an order for exemplary damages. This claim is dismissed.
The tenant claims the landlord harassed him. 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) RTA.
This claim relates to the landlord entering the house, drinking in the house and threatening the tenant. The landlord denies this happened. It is the tenant’s claim to prove. The tenant’s evidence is no better than the landlord’s evidence so this claim is dismissed.

How much is owed for rent?

I find the tenancy ended on 27 April 2023, which is the date the trespass notice was served. At the hearing we considered the landlord’s rent records and the tenant provided proof that additional rent payments had been made. I find the tenant owes $971.43 in rent arrears to the end of the tenancy.

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

There is a claim for cleaning. The law requires this tenant to return his room in a reasonably clean and tidy state and remove his rubbish at the end of the tenancy. See section 40(1)(c) and (e)(iii) RTA.
The RTA does not require the premises to be returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
This is the landlord’s claim to prove. I have considered a quote for cleaning the tenant’s room after the end of the tenancy. The person who did the cleaning gave evidence as a witness. She said she had to wipe the walls and the ceiling a number of times to remove what she determined to be soot. Her invoice was $450. She said the carpet cleaning, also in the quote, was not done because the carpet was threadbare.
The tenant said he thought the walls were covered with mould. He does not agree to any claim for cleaning because he was trespassed and could not return to clean.
I am not allowing this claim. This is because the landlord has no property condition report from the start of the tenancy and no inspections were done during the tenancy. The house was in such a poor condition that it seems most likely to me the walls were already dirty at the start of the tenancy. This claim is dismissed.

Is the tenant responsible for the damage to the premises?

There is a claim for repainting the tenant’s room and for new carpet following a fire. The 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. See sections 40(2)(a), 41 and 49B RTA.
A heater caught fire in the tenant’s room during the tenancy. The tenant said it was accidental. The evidence from the witnesses either shows that the tenant gave inconsistent explanations for the fire or that the witness’ recollections are inconsistent. I do not find the landlord’s evidence to be any better than the tenant’s. This claim is dismissed.
I note that I would not have allowed the claims anyway because of the very poor condition of the room when the tenant moved in. Any order the tenant pay compensation would mean paying for an improvement.

Should the landlord get compensation?

There is a claim for $10,000 in compensation because the tenant caused undue stress to the landlord. This is not a claim the landlord can make under the RTA because there is no reciprocal right to quiet enjoyment.
I am not persuaded I should allow general damages either because of the many landlord breaches during this tenancy. This claim is dismissed. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The landlord’s claim for lawyer’s costs is dismissed because the tenant has substantially succeeded with his application.
The tenant’s application for suppression is allowed because he is the most successful party.
The landlord’s application for suppression is not allowed because there is public interest in names when landlords have to pay compensation and exemplary damages. See section 75A RTA.

Tenancy Tribunal case 4544335 — Exemplary damages at 47 Kairimu Street, Stokes Valley, Lower Hutt 5019

At a glance

Tenancy Tribunal case 4544335 — Exemplary damages at 47 Kairimu Street, Stokes Valley, Lower Hutt 5019

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the tenant use the tenancy premises for an unlawful purpose?

Was the house in a reasonable condition?

Did the landlord end the tenancy using the correct procedure?

Were there other breaches of the RTA?

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Should the landlord get compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the tenant use the tenancy premises for an unlawful purpose?

Was the house in a reasonable condition?

Did the landlord end the tenancy using the correct procedure?

Were there other breaches of the RTA?

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Should the landlord get compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions