What was the outcome of Tenancy Tribunal case 4575552?

The tribunal order states: David Charles Johnson must pay Auckland City-Living Management Limited as

How much money was awarded in case 4575552?

Compensation: $780.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $2,674.29 awarded to landlord

What type of tenancy dispute was case 4575552?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4575552?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9563453-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4575552?

The tribunal order states: David Charles Johnson must pay Auckland City-Living Management Limited as

How much money was awarded in case 4575552?

Compensation: $780.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $2,674.29 awarded to landlord

What type of tenancy dispute was case 4575552?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4575552?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9563453-Tribunal_Order.pdf.

162 Luckens Road, West Harbour, Auckland 0618 Tenancy Tribunal Case 4575552 — Rent arrears

Claims and awards in Tenancy Tribunal application 4575552 — net $1,873.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 26 July 2023 (consent	$2,674.29		Rent arrears to 26 July 2023 (consent
Compensation for loss of enjoyment of tenancy		$780.00	Compensation for loss of enjoyment of tenancy
Filing fee reimbursement from order dated 21 April 2023		$20.44	Filing fee reimbursement from order dated 21 April 2023
Total award	$2,674.29	$800.44
Net award	$1,873.85
Bond	$3,120.00
Total payable by Tenant to Landlord	$1,873.85

Order

David Charles Johnson must pay Auckland City-Living Management Limited as agent for Lie Cai $1,873.85 immediately from the bond as calculated below:
The Bond Centre is to pay the bond of $3,120.00 (3270457-009) immediately apportioned as follows: • Auckland City-Living Management Limited as agent for Lie Cai: • $1,873.85 • David Charles Johnson: • $1,246.15
The tenant’s application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing. Mr Zhang and Ms Chien represented the landlord.
The landlord originally applied for termination of the tenancy and rent arrears. The tenancy ended on 26 July 2023, so termination and possession orders are no longer sought.
The tenant applied for works orders, compensation, and exemplary damages for the alleged failure by the landlord to maintain and repair the premises and to ensure that they were Healthy Homes Standards (HHS) compliant. As the tenancy has ended, he withdrew the application for work orders at the hearing. Background
The tenancy started on 8 November 2021 and ended on the expiry of notice given by the tenant on 26 July 2023.
Before the tenant gave notice to terminate the tenancy the landlord served a 90- day notice to terminate the tenancy because the premises were to be placed on the market for sale.
Following the flooding event in Auckland on 27 January 2023, the downstairs part of the premises flooded. The tenant had sublet the downstairs area to a couple. At the hearing he referred to them as his flatmates. That probably best describes the situation rather than a formal sub lease arrangement.
The tenant considers that the landlord did not deal with the flooding issues quickly enough and as a result he says he suffered losses. They include a loss of enjoyment and use of the downstairs part of the premises and a loss of rent from his flatmates who did not pay all the rent they owed him because they had to move upstairs for a time due to the effects of the flooding.
The tenant also considers that the landlord delayed repairing the upstairs front door lock which meant he was unable to secure that door for about 3 days. He says he spent time and effort trying to contact the landlord and the locksmith to have the repair done.
The parties have been before the Tribunal twice previously. In its order dated 21 April 2023, the Tribunal made a work order for a flood and water damage inspection and ordered the landlord to pay the tenant’s filing fee as a rent deduction.
In its order dated 16 August 2023, the Tribunal referred the dispute to mediation by agreement. The mediation did not result in a resolution of the dispute. The application returned to the Tribunal for an adjudicated hearing. Issues
The issues for the Tribunal to determine are these: •Has the landlord proved a claim for rent arrears? •Has the tenant proved a claim for losses for which the Tribunal should award compensation? •Has the tenant proved a claim for exemplary damages?

Has the landlord proved a claim for rent arrears?

The landlord claims rent arrears of $2,674.29 as set out in the rent summary produced in evidence. The tenant accepted the landlord’s rent claim. I have made a rent arrears order by consent. Has the tenant proved a claim for losses for which the Tribunal should award 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.
In Birch v Ōtautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding whether to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
The first point to note is that the extreme flooding event(s) were not the landlord’s fault. All affected people, whether the owners of properties or tenants of properties experienced inconvenience and in some cases damage and loss.
In this case, the tenant’s flatmates had to relocate upstairs for a period (where there are 3 bedrooms) but then returned to live in the downstairs area which comprises 1 bedroom, a lounge, kitchen, bathroom, and hallway.
Following the Tribunal’s direction that there be a water damage inspection, the contractor attended the premises on 28 April 2023. The moisture levels of the areas that could be tested were reported as low except for the wall facing the driveway. There was water damage to the kitchen laminate, the bottom of the kitchen bench and the kickboards as would be expected.
The contractor does not report that the downstairs was unfit for residential occupation. The tenant confirmed that his flatmates returned to live there.
The tenant said his flatmates stopped paying him rent for a while and he was ‘about $1,000.00 out of pocket’. That is a dispute between him and his flatmates; it is not one that falls within the jurisdiction of the Tenancy Tribunal.
The tenant said no repairs were done to the downstairs of the property before he left the tenancy.
The landlord produced evidence of repair and maintenance work it had done at the premises generally. This is not a case of a landlord simply failing to carry out its responsibilities.
I accept that the tenant suffered some loss of enjoyment of the tenancy following the flooding event(s). The tenant described some areas of mould and smell that persisted. That is reflected in the A Jet Services Limited inspection report the landlord produced in evidence following the Tribunal’s direction.
And the tenant had a period of about 3 days when he could not properly secure the premises due to the front door needing repair.
Compensation (unlike exemplary damages) is not punitive. It simply recognises loss, in this case a loss of enjoyment of the tenancy.
I have carefully considered the documentary evidence both parties produced and the oral evidence each gave at the hearing today.
I award the tenant compensation of $780.00, the equivalent of one week’s rent.

Has the tenant proved a claim for exemplary damages?

Exemplary damages are different from compensation. They are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Ōtautahi 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.
The tenant alleged that the premises were not HHS compliant. He produced no evidence to establish that. The landlord produced a HHS report which shows that the premises were assessed as compliant with the HHS.
That the premises might have become non-compliant for a period following an unexpected flooding event does not establish any unlawful act by the landlord.
To succeed in a claim for exemplary damages against the landlord, the tenant would need to establish on the balance of probabilities that the landlord failed to comply with its responsibility to ensure that the premises were HHS compliant and/or failed to ensure that the premises were maintained or repaired.
The tenant would have to prove that the landlord ‘turned their mind to the act and deliberately set about to commit it’.
The tenant has not proved any intentional act by the landlord.
The flooding event(s) that struck Auckland were extreme and unexpected. They result in very high demand for tradespeople to attend properties to assess and repair them.
That it took a locksmith 3-4 days to fix the front door does not mean that the landlord intentionally failed in its responsibility to repair.
The landlord produced evidence that it acted quickly after the 27 January event and had a contractor assess the premises the day after. The contractor states that the drain and trench that were overwhelmed by water caused by the flooding event met the requirements when the property was built.
The tenant alleged that ‘the house was falling apart and not liveable’. The evidence before the Tribunal does not support that exaggerated statement.
Of course, the tenant suffered some inconvenience and loss of enjoyment of the tenancy. But that has been addressed by an award of compensation.
There is no legal basis on which the Tribunal could award the tenant exemplary damages in this case. The application is dismissed. Result
The tenant must pay the landlord rent arrears of $2,674.29. From that will be deducted compensation of $780.00 awarded to the tenant and the filing fee of $20.44 from the Tribunal’s order dated 21 April 2023.
The bond will be split between the parties - $1,873.85 to the landlord and $1,246.15 to the tenant.
I make no order reimbursing the filing fees on these applications; an award to one would be cancelled by an award to the other. Name suppression
Both parties applied for a name suppression order. I make no suppression orders. The tenant has not been wholly or substantially successful on his application, nor has the landlord been wholly or substantially successful in its defence – see section 95A Residential Tenancies Act 1986. Further issue raised by tenant
The tenant said he considered that the landlord’s notice to terminate the tenancy was both retaliatory and unlawful. He said that his flatmates were now the tenants under a new tenancy agreement, despite him being told that the premises were to be placed on the market for sale.
That issue was not included in the application before the Tribunal today.
The landlord must be notified of a claim against it and be given time to prepare a defence. For that reason, I did not amend the application. The issue is distinct and, if pursued, should be the subject of a new application

Claims and awards in Tenancy Tribunal application 4575552 — net $1,873.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 26 July 2023 (consent	$2,674.29		Rent arrears to 26 July 2023 (consent
Compensation for loss of enjoyment of tenancy		$780.00	Compensation for loss of enjoyment of tenancy
Filing fee reimbursement from order dated 21 April 2023		$20.44	Filing fee reimbursement from order dated 21 April 2023
Total award	$2,674.29	$800.44
Net award	$1,873.85
Bond	$3,120.00
Total payable by Tenant to Landlord	$1,873.85

Order

David Charles Johnson must pay Auckland City-Living Management Limited as agent for Lie Cai $1,873.85 immediately from the bond as calculated below:
The Bond Centre is to pay the bond of $3,120.00 (3270457-009) immediately apportioned as follows: • Auckland City-Living Management Limited as agent for Lie Cai: • $1,873.85 • David Charles Johnson: • $1,246.15
The tenant’s application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing. Mr Zhang and Ms Chien represented the landlord.
The landlord originally applied for termination of the tenancy and rent arrears. The tenancy ended on 26 July 2023, so termination and possession orders are no longer sought.
The tenant applied for works orders, compensation, and exemplary damages for the alleged failure by the landlord to maintain and repair the premises and to ensure that they were Healthy Homes Standards (HHS) compliant. As the tenancy has ended, he withdrew the application for work orders at the hearing. Background
The tenancy started on 8 November 2021 and ended on the expiry of notice given by the tenant on 26 July 2023.
Before the tenant gave notice to terminate the tenancy the landlord served a 90- day notice to terminate the tenancy because the premises were to be placed on the market for sale.
Following the flooding event in Auckland on 27 January 2023, the downstairs part of the premises flooded. The tenant had sublet the downstairs area to a couple. At the hearing he referred to them as his flatmates. That probably best describes the situation rather than a formal sub lease arrangement.
The tenant considers that the landlord did not deal with the flooding issues quickly enough and as a result he says he suffered losses. They include a loss of enjoyment and use of the downstairs part of the premises and a loss of rent from his flatmates who did not pay all the rent they owed him because they had to move upstairs for a time due to the effects of the flooding.
The tenant also considers that the landlord delayed repairing the upstairs front door lock which meant he was unable to secure that door for about 3 days. He says he spent time and effort trying to contact the landlord and the locksmith to have the repair done.
The parties have been before the Tribunal twice previously. In its order dated 21 April 2023, the Tribunal made a work order for a flood and water damage inspection and ordered the landlord to pay the tenant’s filing fee as a rent deduction.
In its order dated 16 August 2023, the Tribunal referred the dispute to mediation by agreement. The mediation did not result in a resolution of the dispute. The application returned to the Tribunal for an adjudicated hearing. Issues
The issues for the Tribunal to determine are these: •Has the landlord proved a claim for rent arrears? •Has the tenant proved a claim for losses for which the Tribunal should award compensation? •Has the tenant proved a claim for exemplary damages?

Has the landlord proved a claim for rent arrears?

The landlord claims rent arrears of $2,674.29 as set out in the rent summary produced in evidence. The tenant accepted the landlord’s rent claim. I have made a rent arrears order by consent. Has the tenant proved a claim for losses for which the Tribunal should award 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.
In Birch v Ōtautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding whether to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
The first point to note is that the extreme flooding event(s) were not the landlord’s fault. All affected people, whether the owners of properties or tenants of properties experienced inconvenience and in some cases damage and loss.
In this case, the tenant’s flatmates had to relocate upstairs for a period (where there are 3 bedrooms) but then returned to live in the downstairs area which comprises 1 bedroom, a lounge, kitchen, bathroom, and hallway.
Following the Tribunal’s direction that there be a water damage inspection, the contractor attended the premises on 28 April 2023. The moisture levels of the areas that could be tested were reported as low except for the wall facing the driveway. There was water damage to the kitchen laminate, the bottom of the kitchen bench and the kickboards as would be expected.
The contractor does not report that the downstairs was unfit for residential occupation. The tenant confirmed that his flatmates returned to live there.
The tenant said his flatmates stopped paying him rent for a while and he was ‘about $1,000.00 out of pocket’. That is a dispute between him and his flatmates; it is not one that falls within the jurisdiction of the Tenancy Tribunal.
The tenant said no repairs were done to the downstairs of the property before he left the tenancy.
The landlord produced evidence of repair and maintenance work it had done at the premises generally. This is not a case of a landlord simply failing to carry out its responsibilities.
I accept that the tenant suffered some loss of enjoyment of the tenancy following the flooding event(s). The tenant described some areas of mould and smell that persisted. That is reflected in the A Jet Services Limited inspection report the landlord produced in evidence following the Tribunal’s direction.
And the tenant had a period of about 3 days when he could not properly secure the premises due to the front door needing repair.
Compensation (unlike exemplary damages) is not punitive. It simply recognises loss, in this case a loss of enjoyment of the tenancy.
I have carefully considered the documentary evidence both parties produced and the oral evidence each gave at the hearing today.
I award the tenant compensation of $780.00, the equivalent of one week’s rent.

Has the tenant proved a claim for exemplary damages?

Exemplary damages are different from compensation. They are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Ōtautahi 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.
The tenant alleged that the premises were not HHS compliant. He produced no evidence to establish that. The landlord produced a HHS report which shows that the premises were assessed as compliant with the HHS.
That the premises might have become non-compliant for a period following an unexpected flooding event does not establish any unlawful act by the landlord.
To succeed in a claim for exemplary damages against the landlord, the tenant would need to establish on the balance of probabilities that the landlord failed to comply with its responsibility to ensure that the premises were HHS compliant and/or failed to ensure that the premises were maintained or repaired.
The tenant would have to prove that the landlord ‘turned their mind to the act and deliberately set about to commit it’.
The tenant has not proved any intentional act by the landlord.
The flooding event(s) that struck Auckland were extreme and unexpected. They result in very high demand for tradespeople to attend properties to assess and repair them.
That it took a locksmith 3-4 days to fix the front door does not mean that the landlord intentionally failed in its responsibility to repair.
The landlord produced evidence that it acted quickly after the 27 January event and had a contractor assess the premises the day after. The contractor states that the drain and trench that were overwhelmed by water caused by the flooding event met the requirements when the property was built.
The tenant alleged that ‘the house was falling apart and not liveable’. The evidence before the Tribunal does not support that exaggerated statement.
Of course, the tenant suffered some inconvenience and loss of enjoyment of the tenancy. But that has been addressed by an award of compensation.
There is no legal basis on which the Tribunal could award the tenant exemplary damages in this case. The application is dismissed. Result
The tenant must pay the landlord rent arrears of $2,674.29. From that will be deducted compensation of $780.00 awarded to the tenant and the filing fee of $20.44 from the Tribunal’s order dated 21 April 2023.
The bond will be split between the parties - $1,873.85 to the landlord and $1,246.15 to the tenant.
I make no order reimbursing the filing fees on these applications; an award to one would be cancelled by an award to the other. Name suppression
Both parties applied for a name suppression order. I make no suppression orders. The tenant has not been wholly or substantially successful on his application, nor has the landlord been wholly or substantially successful in its defence – see section 95A Residential Tenancies Act 1986. Further issue raised by tenant
The tenant said he considered that the landlord’s notice to terminate the tenancy was both retaliatory and unlawful. He said that his flatmates were now the tenants under a new tenancy agreement, despite him being told that the premises were to be placed on the market for sale.
That issue was not included in the application before the Tribunal today.
The landlord must be notified of a claim against it and be given time to prepare a defence. For that reason, I did not amend the application. The issue is distinct and, if pursued, should be the subject of a new application

Tenancy Tribunal case 4575552 — Rent arrears at 162 Luckens Road, West Harbour, Auckland 0618

At a glance

Tenancy Tribunal case 4575552 — Rent arrears at 162 Luckens Road, West Harbour, Auckland 0618

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord proved a claim for rent arrears?

Has the tenant proved a claim for exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord proved a claim for rent arrears?

Has the tenant proved a claim for exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions