What was Tenancy Tribunal case 4573609 about?

The tribunal order states: The Tribunal orders suppression of all tenants’ names and identifying details.

How much money was awarded in case 4573609?

Property Damage: $37,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4573609?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4573609?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10044424-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4573609 about?

The tribunal order states: The Tribunal orders suppression of all tenants’ names and identifying details.

How much money was awarded in case 4573609?

Property Damage: $37,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4573609?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4573609?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10044424-Tribunal_Order_Redacted.pdf.

Multiple Tenancies Tenancy Tribunal Case 4573609 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4573609 — net $37,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages (as per schedule	$37,000.00	Exemplary damages (as per schedule
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$37,020.44
Total payable by Landlord to Tenant	$37,020.44

Claims and awards in Tenancy Tribunal application 4573609 — net $37,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages (as per schedule	$37,000.00	Exemplary damages (as per schedule
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$37,020.44
Total payable by Landlord to Tenant	$37,020.44

Order

The Tribunal orders suppression of all tenants’ names and identifying details.
The claim against the second respondent is withdrawn.
Edgecumbe House Limited must pay The Chief Executive, Ministry of Business, Innovation, and Employment $37,020.44 immediately, calculated as follows:
Edgecumbe House Limited is restrained for a period of 3 years from the date of this order from committing the following breaches of the Residential Tenancies Act 1986: a. Requiring a bond of more than 4 weeks’ rent (s 18(1) RTA). b. Failing to comply with healthy homes ventilation standards (s 66I(bb) RTA). c. Failing to comply with healthy homes heating standards (s 66I(bb) RTA). d. Failing to provide a means of cooking by baking (s 66I(c) RTA and regulation 7(2)(b) Housing Improvement Regulations 1947). e. Interfering with the supply of hot water to the premises (s 66J(1) RTA).

Reasons

The Chief Executive, Ministry of Business, Innovation, and Employment (MBIE) filed a claim against Edgecumbe House Limited (“Edgecumbe”) and Mr Oh, under s 124A(1)(a) Residential Tenancies Act 1986 (“RTA”), claiming several breaches of their obligations under the RTA, as follows: a. Requiring bonds greater than 4 weeks’ rent (x 6) s 18(4) RTA. b. Failing to comply with healthy homes ventilation standards (x 17) s 66I(1)(bb) and (4) RTA. c. Failing to comply with healthy homes heating standards (x 17) s 66I(1)(bb) and (4) RTA d. Failing to comply with requirements relating to buildings, health, and safety (x 17) s 66I(c) and (4) RTA and reg 7(2)(b) Housing Improvement Regulations 1947. e. Interfering with the supply of water (x 17) s 66J(1) RTA.
All parties attended the hearing and were represented by counsel.
The application was initially made on behalf of 21 tenants. The number reduced to 17 by the time of the hearing. A claim relating to failure to comply with moisture barrier requirements was withdrawn at the hearing.
Subsequent to the hearing, MBIE advised that it was withdrawing the claim against Mr Oh personally. Background
Edgecumbe owns a boarding house at 69 Edgecumbe Road, Tauranga. Mr Oh is one of two directors and is primarily responsible for managing boarding house.
Edgecumbe has owned the property since 2000. It was converted to a boarding house in 2010. MBIE says there are 21 bedrooms on the ground floor (although the boarding house plan provided by Edgecumbe shows 20 bedrooms). Edgecumbe says most of its tenants are referred by agencies such as the Department of Corrections and MSD.
In June 2022, the Tenancy Compliance and Investigation Team (“TCIT”) started an assessment of the premises. As a result of a subsequent complaint, it met with one of the tenants, who confirmed that the property did not have an oven, the heater in the living room was disconnected, hot water taps had been removed from the washing machine and two basins, and tenants were being charged for heating in their rooms.
TCIT carried out an inspection of the premises on 6 July. The inspection revealed that there were no working extractor fans in the downstairs kitchen and bathrooms, there was no oven in the kitchen, the heater in the living room was disconnected, and several hot water taps had been removed. Several other maintenance issues were identified which are not part of these proceedings. Subsequent enquiries revealed that several tenants had paid a bond exceeding 4 weeks’ rent.
On 19 July, Mr Oh confirmed to TCIT that there were currently 20 tenants at the property, the extractor fan in the kitchen was not working, two of the bathrooms only had windows for ventilation, the living room heater was disconnected, several hot water taps had been removed as tenants did not turn them off properly, the oven was removed from the kitchen as the power supply was insufficient, and tenants on parole referred by Corrections were charged a bond more than 4 weeks’ rent because they often caused damage.
On 27 July, Mr Oh advised TCIT that a heat pump and 28L oven had been installed, and on 9 August he advised that extractor fans had been installed in the kitchen and two bathrooms. TCIT was subsequently advised that several hot water taps had been replaced, but that the heat pump was controlled and was only available between 6:00pm and 10:00pm. Exemplary damages
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 (a) the party’s intent, (b) the effect of the unlawful act, (c) the interest of the other party, and (d) the public interest (s 109(3) RTA).
The principles for awarding exemplary damages are largely well established. Exemplary damages are intended to be punitive rather than compensatory, and the Tribunal must be satisfied that the party intended the act or the inaction that is unlawful.
Not so clear are the principles that apply where there are several unlawful acts covered by a section of the RTA. Edgecumbe’s counsel submits that only one award of damages can be made in these circumstances 1 . This is relevant to the three breaches under s 66(4) RTA, and counsel submits that the maximum total that can be awarded for these three breaches is $7,200.00.
MBIE’s counsel referred to the case of Gardiner v Upland Bay Investments Limited 2 , which deals with the issue of multiple breaches covered by a single section of the RTA, and submitted that the Tribunal should distinguish the decision.
Before considering Gardiner, it is useful to outline the principles that are reasonably clear: a. Where unlawful acts are committed contrary to more than one of the sections listed in column 1 of Schedule 1A RTA, the Tribunal should award exemplary damages for each unlawful act rather than a global sum 3 . b. Where MBIE brings proceedings under s 124A RTA on behalf of more than one tenant, exemplary damages should be considered independently for each tenant, rather than a global sum awarded for all tenants. Otherwise, the tenants could be prejudiced by MBIE bringing a single claim on behalf of multiple tenants. c. Where more than award of exemplary damages could be made for the same underlying event, there should only be one order of exemplary damages 4
In Gardiner the Tribunal awarded $500.00 exemplary damages against the landlord for failing to lodge the bond, and $1,000.00 for failing to maintain. On appeal, the tenants argued that separate awards should have been made for each breach under ss 19 and 45 RTA, i.e., up to $1,000.00 for failure to lodge the bond, $1,000.00 for failure to provide a bond receipt, and $1,000.00 for each individual breach of building, health, and safety requirements. The District Court disagreed, stating: [29] However, Schedule 1A is explicit, when setting the maximum amount awardable in relation to both s 19 and 45 breaches, that the maximum applied to the breach of duties (plural), in the case of s 19 and the landlord’s failure to meet obligations (also plural) in respect of s 45. The plural form as adopted by the legislature in both instances indicate that the maximums are in respect to a global or total award for all breaches under the respective sections.
MBIE submits that the case was wrongly decided, as the Court did not consider the wording of s 109(4) or the Interpretation Act 1999 (now the Legislation Act 1 Sanson v Wallace and Charnley [2023] NZTT 4693455, North Shore, at para 72 2 CIV-2014-085-13, 27 August 2014, Wellington DC 3 Noble v Simons [2018] NZDC 26672 at [18] and [19] 4 Manage My Rental Limited v Baxter [2015] NZDC 12011; 2019). The latter provides that “words in the singular include the plural, and words in the plural include the singular”. 5
For the purpose of discussing MBIE’s submission, I will focus on s 66I(4), which closely resembles s 45(1A) (one deals with boarding houses and the other general tenancies).
Section 109(4) RTA and the relevant part of Schedule 1A RTA provide: (4) The maximum amount that a person may be ordered to pay under this section for any unlawful act referred to in any section shown in column 1 of Schedule 1A is the amount shown opposite that section in column 3 of that schedule. Column 1Column 2Column 3 66I(4)Landlord of boarding house failing to meet obligations in respect of cleanliness, maintenance, smoke alarms, the healthy homes standards, or buildings, health, and safety requirements 7,200
The first point to note is that the words “duties” and “obligations” referred to in Gardiner appear in column 2 of Schedule 1A, whereas section 109(4) refers to “any unlawful act referred to in a section shown in column 1”. Column 2 is just a brief, general description of the sections covered by s 66I(4). The reference to “any unlawful act” is singular rather than plural.
Section 66I(4) refers to six subsections in s 66I(1) which create obligations on the part of a landlord: subs (a), (b), (ba), (bb), (bc), and (c). The general description of these subsections in column 2 is not even comprehensive, as it fails to mention the obligations imposed by subs (bc).
The healthy homes standards referred to in subs (bb) create separate obligations in relation to heating, insulation, ventilation, draft stopping, and moisture ingress and drainage. Subs (c) refers to compliance with legislative requirements relating buildings, health, and safety. This creates a broad range of obligations, most commonly under the Housing Improvement Regulations 1947, but also potentially under enactments such as the Health Act 1956 and the Building Act 2004. The Housing Improvement Regulations provide for numerous requirements for residential houses (although some have been effectively superseded by the healthy homes standards).
The plain and ordinary meaning of s 109(4) is that, in relation to any of the unlawful acts referred to in s 66I(4), the maximum amount that can be awarded is $7,200.00. Because s 66I(4) refers to 6 subsections, and an even larger number of legal obligations, it follows that the maximum applies to “any” of the unlawful 5 Section 19 acts covered by those provisions. Section 109(4) makes no mention of a global award where there are several breaches covered by the one section. Given the large number of potential breaches covered by s 66I(4), it would make no sense for a landlord who breaches one obligation to be in the same position as a landlord who breaches numerous obligations.
In many cases, the Gardiner approach would have little practical effect on the outcome, particularly if the breaches are relatively minor. If, say, three breaches were committed, there is no real difference between the Tribunal making three awards of $1,000.00 or one global award of $3,000.00. However, where there numerous serious breaches, the Gardiner approach could restrict the Tribunal’s ability to award an appropriate level of exemplary damages.
Another important objection to the Gardiner approach is that in the case of s 66I(4), the unlawful acts could arise out of a broad range of different factual circumstances and may involve quite different considerations in assessing the appropriate award. It would be more transparent in these circumstances to analyse each breach individually in relation to the maximum available.
The Tribunal is bound by District Court decisions, even the logic behind them is flawed. However, where there are competing approaches taken by the higher courts, the Tribunal is able to chose between them. Although Gardiner has been applied in several Tribunal decisions, I am not aware of any other cases where this aspect of the case has been applied by the District Court.
In other cases, the District Court has allowed individual awards for separate breaches covered by the same section. For example, in the case of Baxter previously mentioned 6 , the Tribunal made three awards of exemplary damages of $1,000.00 each in relation to a leaky roof. They were for failure to provide the premises in a reasonable state of repair (s 45(1)(b) RTA); failure to maintain the premises in a reasonable state of repair (s 45(1)(b) RTA); and failure to comply with a requirement to ensure the premises were free from dampness (s 4(91)(c) RTA). The District Court on appeal held that the third breach arose out of the first two breaches and there was an element of double punishment. Therefore, the Court set aside the award under s 45(1)(c). Significantly, it did not interfere with, or comment on, the two separate awards for breaches of s 45(1)(b).
The approach taken in Baxter is logical, is consistent with s 109(4), and is the approach I intend to take in this case.

Did Edgecumbe commit the unlawful acts alleged?

6 At para 15(c)

The breaches alleged are largely accepted by Edgecumbe, apart from the issue of the bonds. Bond
A landlord must not require a bond of greater than four weeks rent (s 18(1) RTA). Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 (Schedule 1A RTA). MBIE alleges six breaches.
Tenant 1: The tenant was referred by Corrections. He moved in on 10 March 2022. On 6 April, he signed a tenancy agreement recording weekly rent of $230.00, a bond of $1,000.00, and a commencement date of 10 March 2022. Rent of $520.00 (2 weeks at $260.00/week) was paid on 11 March, and $148.57 on 14 March (4 days at $260.00/week). On 4 April rent of $230.00 and a bond of $1,000.00 was paid. The bond was lodged on 12 April.
Tenant 7: The tenant was referred to Edgecumbe by Corrections. On 9 February 2022, it wrote to Edgecumbe to say it could not provide the emergency housing rate for the tenant but agreed to weekly rent of $250.00 and a bond of $1,000.00. The landlord provided Corrections with an invoice for $1,250.00. The tenant moved in on 10 February, and on 14 February Income Support paid Edgecumbe $500.00 rent and $1,000.00 bond. Further rent of $250.00 was paid on 2 March. On 16 March the tenant signed a tenancy agreement recording weekly rent of $230.00, a bond of $1,000.00, and a commencement of 10 March 2022. Edgecumbe lodged the bond on 18 March.
Tenant 8: The tenant was referred to Edgecumbe by Corrections. Rent and bond of $1,250.00 was paid on 5 January. He moved in on 11 January. On 10 February 2022, he signed a tenancy agreement recording weekly rent of $200.00, a bond of $1,000.00, and a commencement date of 16 January. Rent of $200.00 was paid on 1 March and 5 April. The bond was lodged on 17 February.
Tenant 9: The tenant was referred to Edgecumbe by Corrections on the emergency housing rate. Edgecumbe invoiced MSD for $2,380.00 on 6 April 2022 (4 weeks at $595.00/week). The invoice records “Terms: Security Deposit Bond $1,000 ...”. The emergency housing ended on 4 May 2022. On 10 May, the tenant signed a tenancy agreement recording weekly rent of $200, a bond of $1,000.00, and a commencement date of 4 May. Income Support paid a bond of $1,000.00 on 5 May and it was lodged on 12 May.
Tenant 10: The tenant was referred to Edgecumbe on the emergency housing rate of $595.00/week. He moved in on 26 January 2022. On 1 February, MSD emailed Edgecumbe to say it had paid the emergency rate for 4 weeks and would pay weekly rent of $250.00 from 23 February, along with a bond of $1,000.00. Income Support paid rent of $400.00 and a bond of $1,000.00 on 24 February. On 6 April, the tenant signed a tenancy agreement recording weekly rent of $200.00, a bond of $1,000.00, and a commencement date of 23 February 2022. Rent of $200.00 was paid on 9 March and 4 May. The bond was lodged on 10 May, and a further bond lodged on 11 May.
Tenant 13: The tenant signed a tenancy agreement on 22 November 2021, recording weekly rent of $200.00, a bond of $1,000.00, and a commencement date of 19 October 2021. Rent of $250.00 was paid on 2 November and 9 November. The bond was lodged on 24 November 2021. Edgecumbe says it believes he was on a trial period that ended in November.
MBIE says that when Mr Oh was interviewed by TCIT he said he was not aware of the bond obligations under the RTA and that tenants referred by Corrections are charged a flat bond of $1,000.00 due to the risk of damage.
Mr Oh says there were some misunderstandings arising from his interview due to his limited proficiency in English. He says for each tenant the accommodation benefit provider specifies the level of rent and bond it can pay. Edgecumbe then invoices the provider for the rent and bond. The provider will then pay the rent for several weeks before the tenant takes over responsibility for payments. Edgecumbe may then enter into a tenancy agreement, usually at a lower weekly rate, if satisfied the tenant will adhere to the house rules and can pay the rent. He says he always believed Edgecumbe was complying with the law as it was guided by the payment providers, which are either government departments or government-approved organisations. He says none of the tenants requested the excess bond to be refunded. He also says that for most of its tenants Edgecumbe requires less than 4 weeks’ rent as a bond.
Edgecumbe’s counsel submits that it did not breach s 18(4) RTS, relying on s 18(3), which provides: (3) On the decrease of the rent, the amount by which the total sum already paid by way of bond exceeds the rent payable for 4 weeks following the decrease shall, on application to the chief executive by the person who paid the bond, be refunded to the tenant.
Counsel says Edgecumbe initially accommodated the tenants at a weekly rent of $250.00 and a bond of $1,000.00. When the tenants expressed a desire to stay on, this was done at a reduced rental rate. The excess bond was not refunded as none of the tenants requested this.
I do not accept Edgecumbe’s submission about s 18(3) RTA. This subsection provides a mechanism for a tenant to obtain a refund of any overpaid bond; it does not provide a defence for a landlord’s breach.
In each of the six cases, the tenancy agreement records a bond that is more than 4 weeks’ rent. Therefore, on the face of the agreements, Edgecumbe appears to be in breach.
Tenants 9 and 10 were initially provided emergency accommodation, which is excluded from the RTA by s 5(1)(y). In their cases, the RTA only applied once their emergency accommodation expired and they entered into a tenancy agreement with Edgecumbe. In both cases the commencement date coincided with the end of the emergency accommodation. Therefore, Edgecumbe clearly breached s 18.
In the case of tenant 7, Edgecumbe said in evidence that he was on 3 to 4 week trial period and could be removed instantly if he was found to be unsuitable. It said the tenancy started at a reduced rate after end of trial period. It is clear that the same applied to the other three tenants, i.e., that Edgecumbe regarded the tenancy as starting after the end of the trial period when the tenants signed a backdated tenancy agreement. At that stage Edgecumbe knew that the rent would be at the lower rate and that the bond would be more than 4 weeks’ rent. Therefore, there was a clear breach of s 18 in each case.
Edgecumbe’s counsel submitted that the breaches, if proved, are technical and that a penalty of $250.00 per tenant is appropriate. I do not agree. A common starting point for bond breaches is one-third of the maximum. The number of breaches, and the fact that Edgecumbe required a standard bond of $1,000.00 for tenants referred by Corrections, are aggravating factors. I do not accept Edgecumbe’s attempt to shift responsibility to benefit providers, as they had no responsibilities under the RTA. There is also a strong public interest in ensuring landlords comply with their bond obligations.
On the other hand, I accept that Edgecumbe’s actions were misguided rather exploitative, exemplified by the fact that in other instances it has charged tenants less than 4 weeks’ rent as a bond.
The aggravating and mitigating factors tend to balance each other out; therefore, I have awarded $500.00 in each case.
If the bond overpayments have not been resolved already, this should be attended to immediately, otherwise Edgecumbe will continue to be in breach of its obligations. Ventilation standards
Section 66(1)(bb) RTA requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS), which includes a ventilation standard. All boarding houses were required to comply by 1 July 2021.
The ventilation standard requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (Schedule 1A RTA).
At the time of the July 2022 inspection, the extractor fan in the kitchen was not working and there were no extractor fans in the two bathrooms. This was a clear breach of the healthy homes standards, which had been in force for boarding houses for over a year.
Mr Oh advised TCIT he was not aware of the healthy homes standards. He says the bathrooms had large opening windows and there was never an issue with ventilation or moisture.
The healthy homes standards were well signalled long before they came into force, and the breaches came to light more than 12 months after the commencement date for boarding houses. As a professional accommodation provider, Edgecumbe was required to inform itself of its legal obligations and to comply with them. I do not accept Mr Oh’s explanation that he lacked proficiency in English or that, even if he did, this was an excuse. Ignorance of the law provides no defence and I find that the failure to fix the kitchen extractor fan and to install extractor fans in the bathrooms was intentional. The kitchen fan also involves an additional element of failure to repair.
The maximum level of penalty available is substantial, and I agree with counsel that the breaches are at the lower end of the scale. I do not have any direct evidence about the effect of the breaches on the tenants, although it likely they had some effect particularly in the colder months when the only ventilation option for them was to open windows or doors and let cold outside air in. Apart from the tenants’ interests, there is also a strong public interest in ensuring compliance with the healthy homes standards.
Edgecumbe’s counsel suggested a combined penalty of $1,500.00 for the 3 breaches of s 66I for each tenant. I agree that this is an appropriate starting point. Because of my finding that each breach should be dealt with individually rather than aggregated, I have awarded $500.00 in respect of each tenant for breach of the ventilation standards. Heating standards
The HHS also includes a heating standard. The heating standard requires landlords to provide one or more ‘qualifying heaters’ in the main living area, with a capacity to heat the room to a required level. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (Schedule 1A RTA).
Mr Oh says that when the previous heater broke down, rather than replace it, Edgecumbe` provided heaters for each room. He says the tenants tend to stay in their own rooms rather than use the living room.
After the breach was brought to Mr Oh’s attention, he acted promptly to have a compliant heat pump installed. However, installing the heat pump did not fully remedy the breach as Edgecumbe initially restricted the hours of use and latterly nominated one of the tenants to have custody of the heat pump remote.
Edgecumbe’s decision not to replace the living room heater was intentional. As with the ventilation standard, there is no direct evidence about the effect on the tenants, but again it is reasonable to infer that there would have been some effect on their use of the communal living room during the colder months. Again, there is a strong public interest factor involved.
Because Edgecumbe is not entitled to restrict the hours of use, it needs to ensure that the tenants have access to the remote when they wish to use the heat pump. Providing the remote to one of the tenants does not meet this requirement, as there is no guarantee that the tenant will always be available. Edgecumbe will need to find some other means of securing the availability of the remote.
Similar consideration apply to the heating standard as apply to the ventilation standard, and I have made an identical award. Building requirements – oven
Section 66I(c) RTA provides that a landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (Schedule 1A RTA).
Regulation 7(2)(b) of the HIR requires all premises to be provided with a kitchen that has “adequate means of preparing food and of cooking food, both by boiling and baking”.
At the time of the July inspection the kitchen had two benchtop hotplates (each with two elements), a microwave, and an electric frying pan. There was no oven or stove.
Mr Oh advised TCIT that the kitchen was converted from the garage and that the stove was removed as the power supply was insufficient and the fuse kept blowing. He said he thought the cooking facilities were adequate and that most of the tenants would not use an oven.
Edgecumbe has now installed what it describes as a large a portable oven for the tenants to use. However, a 28L oven is similar in size to a microwave and it is questionable whether this is “adequate” for the number of residents at the boarding house. Edgecumbe says it will look at the practicality of installing a full- sized oven.
As with the previous two breaches, I find that an award of $500.00 per tenant is appropriate. Water supply
A landlord must not interfere with the supply of water, gas, electricity, telephone of other service to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out (ss 66J(1) RTA). Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00 (Schedule 1A RTA).
During its inspection TCIT noted that the hot tap to the washing machine was removed, the hot tap to laundry sink was disabled, and hot taps had been removed from one of the bathrooms and a toilet.
Mr Oh says the previous washing machine was damaged because no-one was using hot water for their laundry. Therefore, when the washing machine was replaced, the hot tap was disconnected. He says past tenants had difficulty changing the washing machine settings from hot to cold. Since disconnecting the hot water there have been no complaints from tenants about their clothes being discoloured from using hot water, and none have raised an issue about the lack of hot water.
Mr Oh says Edgecumbe previously experienced difficulties with tenants not turning taps off after using them, resulting in the cylinders running out of hot water. He says that due to the layout of some of the bathrooms, tenants would not notice if water was still running. To ensure tenants had access to hot water, taps were removed where there was a nearby basin available that was easily visible if a tap was left running. He acknowledged that financial considerations played a role in the removal of the taps, but he says this was not the main reason. In evidence he said there was an additional hand basin with hot water in the laundry, an external sink and hot tap adjacent to the laundry, and a hand basin and tap by bedroom 10 (next to the toilet where a hot tap had been removed).
I do not accept Mr Oh’s explanation that hot taps were removed primarily for the benefit of the tenants and to prevent hot water running out. As TCIT also observed maintenance issues with the kitchen taps I find that the primary reason for their removal was most likely economic.
It is clear that Edgecumbe acted intentionally. Counsel for Edgecumbe submitted that a penalty of $500.00 per tenant is appropriate. Although the maximum available is less for this breach than the previous breaches, it is likely that the breach had a similar effect on the tenants and the same public interest factors apply. Therefore, I agree with counsels’ submission and award the same amount. Restraining order
MBIE has requested a restraining order under s 109A RTA, to prevent further breaches. Edgecumbe’s counsel submits that this would be disproportionate.
On one hand, Edgecumbe acted promptly to remedy the breaches when they were pointed out by TCIT. On the other, one of the breaches was not fully remedied (heating), and there has been a history of Edgecumbe removing facilities or not repairing them (e.g., in relation to the hot taps, kitchen ventilation, and heating). In these circumstances I am satisfied that a restraining order is necessary and appropriate. However, to take account of the factors raised on behalf of Edgecumbe, I have reduced it from the maximum period of 6 years to 3 years. Filing fee and name suppression
Because the applicant has been largely successful with the claim, I have reimbursed the filing fee.
Where MBIE brings a claim on behalf a tenant under s 124A RTA, the Tribunal is required to order that the name and identifying details of the tenant not be published (s 95A(2) RTA). J P Smith 5 March 2024

Tenancy Tribunal case 4573609 — Exemplary damages at Multiple Tenancies

At a glance

Tenancy Tribunal case 4573609 — Exemplary damages at Multiple Tenancies

At a glance

Award balance

Claims & awards

Order

Reasons

Did Edgecumbe commit the unlawful acts alleged?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did Edgecumbe commit the unlawful acts alleged?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions