What was Tenancy Tribunal case 4601829 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 4601829?

Compensation: Water Overcharge: $300.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4601829?

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

Where can I read the official tribunal order for case 4601829?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9489099-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4601829 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 4601829?

Compensation: Water Overcharge: $300.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4601829?

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

Where can I read the official tribunal order for case 4601829?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9489099-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4601829 — Exemplary damages

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New Zealand Tenancy Tribunal Case 4601829 — Exemplary damages | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4601829 — net $2,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Bond refund	$900.00	Bond refund
Exemplary damages: Failing to lodge bond	$500.00	Failing to lodge bond
Exemplary damages: Tenancy agreement	$300.00	Tenancy agreement
Exemplary damages: Breach of HHS	$500.00	Breach of HHS
Compensation: Water overcharge	$300.00	Water overcharge
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,520.44
Total payable by Landlord to Tenant	$2,520.44

Claims and awards for application 4601829 — net $2,520.44 NZD. Verify on MoJ.

Bond refund

Amount: $900.00
Awarded to: Tenant
Reason: Bond refund

Exemplary damages: Failing to lodge bond

Amount: $500.00
Awarded to: Tenant
Reason: Failing to lodge bond

Exemplary damages: Tenancy agreement

Amount: $300.00
Awarded to: Tenant
Reason: Tenancy agreement

Exemplary damages: Breach of HHS

Amount: $500.00
Awarded to: Tenant
Reason: Breach of HHS

Compensation: Water overcharge

Amount: $300.00
Awarded to: Tenant
Reason: Water overcharge

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s names and identifying details.
Selvin Prakash must pay [The tenant/s] $2,520.44 immediately, calculated as shown in table below. DescriptionTenant Bond refund$900.00 Exemplary damages: Failing to lodge bond$500.00 Exemplary damages: Tenancy agreement$300.00 Exemplary damages: Breach of HHS$500.00 Compensation: Water overcharge$300.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$2,520.44

Reasons

The Tribunal must consider an application filed by the tenants, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
Both parties appeared at the hearing.
The tenants seek orders in relation to a number of claims as I will set out below.

BACKGROUND

There is no dispute between the parties as to the fact of the parties being the tenants and landlord. The tenancy commenced on 5 December 2021, and ended on 15 My 2023.

RELEVANT LEGAL CONSIDERATIONS

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
The tenants seek exemplary damages for some of the claims. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

TENANTS CLAIMS

The tenants have a number of claims that I will now address in turn.

FAILURE TO LODGE BOND

The tenant states that a total of $1,500.00 in bond was paid to the landlord at the start of the tenancy, and not lodged with the Bond Centre.
The landlord agrees that the bond was paid and not lodged, stating he was not sure it needed to be done. The landlord says that $600.00 was refunded to the tenant, and the remainder went on other costs at the end of the tenancy.
The tenants agree that they received the $600.00 refund. Analysis Exemplary damages for failing to lodge the bond
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
The landlord has not convinced me that the there was no intention to breach his obligations. As I noted at the hearing, it is well recognised in New Zealand that bonds need to be lodged with the Bond Centre, and the landlord seemed to accept that was the case. On balance I consider this breach was intentional.
Taking into account the other section 109 considerations, I consider that exemplary damages should be ordered. In that regard the effect for the tenants was that their bond has not been held securely in the Bond Centre. There is a very strong interest for tenants, landlords and the public generally that the bond system is efficacious, which requires that bonds be lodged as the law requires it.
The maximum level of exemplary damages for a breach of section 19, is $1,500.00. In this case I order one third of the maximum, being $500.00. There are no aggravating factors arguing for an order near the maximum, I consider an order at that level is fair. Refund of bond
The Tribunal must consider an application filed by the tenants at the end of the tenancy, seeking recovery of their bond.
Section 22B of the Residential Tenancies Act 1986 applies, that provision confirms that: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applied to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The effect of this provision, is that when the tenant applies to the Tribunal for release of the bond in whole or in part, if the landlord wishes to argue that it has any call on that bond, then the landlord “must” file a counter claim for it. In the absence of a counterclaim, then the Tribunal must order that the bond be released to the tenants.
This means that if the landlord subsequently wishes to pursue any claim against the tenant, the landlord is still able to do so, but if the landlord is successful in the claim, there would not be any bond that the Tribunal could order be released to go toward the landlord’s claim.
For the above reasons, in the absence of a counter claim from the landlord, the Tribunal orders that the full bond be refunded to the tenants. The outstanding bond amount is $900.00 so that is ordered in full.
As I noted to the landlord, if he has any claim against the tenants, he can still bring that to the Tribunal, but that is not a matter I can consider today.

FAILURE TO PROVIDE AN HEALTHY HOMES STANDARDS STATEMENT

AND INSURANCE STATEMENT

The tenants position is that the landlord did not provide a Healthy Homes Standards (HHS) statement on the tenancy agreement, nor an insurance statement. Because both of these are breaches of the same section of the RTA (section 13A) I will deal with them together.
The landlord states that he did not know he needed to provide this information, but that the premises are HHS compliant. Analysis
Section 13A of the Residential Tenancies Act 1986 sets out the requirements for tenancy agreements. Subsection (1CA) holds that: The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
Similarly section 13A(2) requires the landlord to provide information about the insurance situation at the tenancy: (2) The landlord must include in the tenancy agreement the following information about insurance of the premises: (a) if the premises are not insured, a statement that they are not insured; and (b) if the premises are insured, a statement— (i) setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii) informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or 66J(5)).
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA) or 13A(2).
The landlord does not dispute that the HHS or insurance statement was not provided. In this case the landlord has used the standard form tenancy agreement from Tenancy Services. That agreement is a multipage agreement, but the landlord has only used the first to pages of that document. Had the landlord used the full document, then that would have provided the HHS and insurance statements, and it should have been plain from that these statements were needed.
I have no reason to consider the landlords breach was not intentional.
Again section 109 applies. I consider there was a detriment to the tenants in that they did not know the insurance or HHS situation with the tenancy. There is a strong interest particularly for tenants and the public generally that the full range of required information is provided on tenancy agreements.
The maximum level of exemplary damages is $750.00. In this case I consider an order of $300.00 would be appropriate. There are two separate breaches, but of a similar nature. I cannot see evidence supporting a more stringent order.

BREACH OF HHS OBLIGATIONS

The tenants state that the premises were cold, and they dispute that the premises were properly insulated, but states that about six to eight months after the tenancy started the landlord had the ceiling insulated. The tenant said that that the premises were underfloor insulated, but that the insulation was in poor condition. The tenant said that the insulation in the ceiling was very thin.
The tenant states there was no rangehood in the kitchen.
In response the landlord advised that there was insulation in the ceiling and under the floor at the start of the tenancy. The landlord states that when the tenant raised concerns additional insulation was installed above one room following complaints from the tenant about that room being cold.
The landlord agreed there is no rangehood in the kitchen, but states it is a small space with a window they can open. Analysis
The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, but this tenancy needed to comply within 90 days of the tenancy start date.
The Insulation standard requires that the premises have qualifying insulation in the ceiling cavity, and under the floor if the floor is a suspended floor. To be considered ‘qualifying insulation’ the insulation must meet a minimum R value. The insulation must also be in a reasonable condition.
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. But for kitchens the landlord needs to have a mechanical extraction system, or other approved system.
The tenants have not convinced me that the insulation in the premises were not at the level required. The landlords evidence (supported with photographs) is that there was insulation in the ceiling and underfloor. The tenant agrees that is the case, but they say it was insufficient (too thing) or not in good order. But other than the tenants statement on this, no other supporting evidence has been presented. I cannot see any reason to prefer the tenants oral evidence over that of the landlord. I find this claim has not been established.
In relation to the kitchen extractor fan, the landlord agrees there was no extraction in the kitchen, the landlord acknowledged that this HHS obligation has not been met.
When the HHS obligations were introduced, they were well advertised. It is more likely than not that the landlord would have been aware of the obligations, and to that extent I consider any decision making was intentional.
Taking into account section 109, I consider exemplary damages should be ordered. There was an impact for the tenants in terms of there being an absence of an extraction unit, but I accept that could be mitigated with the window nearby. But there is a strong interest that homes be warm, dry and healthy, which is the overarching intention of the HHS.
The maximum level of exemplary damages for a breach of this obligation is $7,200.00. However in reality the impact for the tenants would be modest. I consider an order of $500.00 exemplary damages would be reasonable.

FIXED CHARGES ON WATER BILLS

The tenant states that during the tenancy then tenant paid the full amount of the water invoices. The tenant does not have all of the water bills, but based on paying $20.00 per month, estimates the charges would be some $300.00.
The tenancy started on 5 December 2021, and went to 15 My 2023.
The landlord acknowledged that fixed charges were not the responsibility of the tenant. In the circumstances the landlord agreed it would be reasonable that he reimburse the tenants the full claimed $300.00, and that is ordered.

FILING FEE

The applicant has been mostly successful in their claim before the Tribunal. I find it is reasonable therefore to award the filing fee paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case tenants have applied for name suppression, and as they have been substantially successful, name suppression is ordered.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4601829 — net $2,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Bond refund	$900.00	Bond refund
Exemplary damages: Failing to lodge bond	$500.00	Failing to lodge bond
Exemplary damages: Tenancy agreement	$300.00	Tenancy agreement
Exemplary damages: Breach of HHS	$500.00	Breach of HHS
Compensation: Water overcharge	$300.00	Water overcharge
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,520.44
Total payable by Landlord to Tenant	$2,520.44

Claims and awards for application 4601829 — net $2,520.44 NZD. Verify on MoJ.

Bond refund

Amount: $900.00
Awarded to: Tenant
Reason: Bond refund

Exemplary damages: Failing to lodge bond

Amount: $500.00
Awarded to: Tenant
Reason: Failing to lodge bond

Exemplary damages: Tenancy agreement

Amount: $300.00
Awarded to: Tenant
Reason: Tenancy agreement

Exemplary damages: Breach of HHS

Amount: $500.00
Awarded to: Tenant
Reason: Breach of HHS

Compensation: Water overcharge

Amount: $300.00
Awarded to: Tenant
Reason: Water overcharge

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s names and identifying details.
Selvin Prakash must pay [The tenant/s] $2,520.44 immediately, calculated as shown in table below. DescriptionTenant Bond refund$900.00 Exemplary damages: Failing to lodge bond$500.00 Exemplary damages: Tenancy agreement$300.00 Exemplary damages: Breach of HHS$500.00 Compensation: Water overcharge$300.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$2,520.44

Reasons

The Tribunal must consider an application filed by the tenants, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
Both parties appeared at the hearing.
The tenants seek orders in relation to a number of claims as I will set out below.

BACKGROUND

There is no dispute between the parties as to the fact of the parties being the tenants and landlord. The tenancy commenced on 5 December 2021, and ended on 15 My 2023.

RELEVANT LEGAL CONSIDERATIONS

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
The tenants seek exemplary damages for some of the claims. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

TENANTS CLAIMS

The tenants have a number of claims that I will now address in turn.

FAILURE TO LODGE BOND

The tenant states that a total of $1,500.00 in bond was paid to the landlord at the start of the tenancy, and not lodged with the Bond Centre.
The landlord agrees that the bond was paid and not lodged, stating he was not sure it needed to be done. The landlord says that $600.00 was refunded to the tenant, and the remainder went on other costs at the end of the tenancy.
The tenants agree that they received the $600.00 refund. Analysis Exemplary damages for failing to lodge the bond
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
The landlord has not convinced me that the there was no intention to breach his obligations. As I noted at the hearing, it is well recognised in New Zealand that bonds need to be lodged with the Bond Centre, and the landlord seemed to accept that was the case. On balance I consider this breach was intentional.
Taking into account the other section 109 considerations, I consider that exemplary damages should be ordered. In that regard the effect for the tenants was that their bond has not been held securely in the Bond Centre. There is a very strong interest for tenants, landlords and the public generally that the bond system is efficacious, which requires that bonds be lodged as the law requires it.
The maximum level of exemplary damages for a breach of section 19, is $1,500.00. In this case I order one third of the maximum, being $500.00. There are no aggravating factors arguing for an order near the maximum, I consider an order at that level is fair. Refund of bond
The Tribunal must consider an application filed by the tenants at the end of the tenancy, seeking recovery of their bond.
Section 22B of the Residential Tenancies Act 1986 applies, that provision confirms that: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applied to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The effect of this provision, is that when the tenant applies to the Tribunal for release of the bond in whole or in part, if the landlord wishes to argue that it has any call on that bond, then the landlord “must” file a counter claim for it. In the absence of a counterclaim, then the Tribunal must order that the bond be released to the tenants.
This means that if the landlord subsequently wishes to pursue any claim against the tenant, the landlord is still able to do so, but if the landlord is successful in the claim, there would not be any bond that the Tribunal could order be released to go toward the landlord’s claim.
For the above reasons, in the absence of a counter claim from the landlord, the Tribunal orders that the full bond be refunded to the tenants. The outstanding bond amount is $900.00 so that is ordered in full.
As I noted to the landlord, if he has any claim against the tenants, he can still bring that to the Tribunal, but that is not a matter I can consider today.

FAILURE TO PROVIDE AN HEALTHY HOMES STANDARDS STATEMENT

AND INSURANCE STATEMENT

The tenants position is that the landlord did not provide a Healthy Homes Standards (HHS) statement on the tenancy agreement, nor an insurance statement. Because both of these are breaches of the same section of the RTA (section 13A) I will deal with them together.
The landlord states that he did not know he needed to provide this information, but that the premises are HHS compliant. Analysis
Section 13A of the Residential Tenancies Act 1986 sets out the requirements for tenancy agreements. Subsection (1CA) holds that: The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
Similarly section 13A(2) requires the landlord to provide information about the insurance situation at the tenancy: (2) The landlord must include in the tenancy agreement the following information about insurance of the premises: (a) if the premises are not insured, a statement that they are not insured; and (b) if the premises are insured, a statement— (i) setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii) informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or 66J(5)).
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA) or 13A(2).
The landlord does not dispute that the HHS or insurance statement was not provided. In this case the landlord has used the standard form tenancy agreement from Tenancy Services. That agreement is a multipage agreement, but the landlord has only used the first to pages of that document. Had the landlord used the full document, then that would have provided the HHS and insurance statements, and it should have been plain from that these statements were needed.
I have no reason to consider the landlords breach was not intentional.
Again section 109 applies. I consider there was a detriment to the tenants in that they did not know the insurance or HHS situation with the tenancy. There is a strong interest particularly for tenants and the public generally that the full range of required information is provided on tenancy agreements.
The maximum level of exemplary damages is $750.00. In this case I consider an order of $300.00 would be appropriate. There are two separate breaches, but of a similar nature. I cannot see evidence supporting a more stringent order.

BREACH OF HHS OBLIGATIONS

The tenants state that the premises were cold, and they dispute that the premises were properly insulated, but states that about six to eight months after the tenancy started the landlord had the ceiling insulated. The tenant said that that the premises were underfloor insulated, but that the insulation was in poor condition. The tenant said that the insulation in the ceiling was very thin.
The tenant states there was no rangehood in the kitchen.
In response the landlord advised that there was insulation in the ceiling and under the floor at the start of the tenancy. The landlord states that when the tenant raised concerns additional insulation was installed above one room following complaints from the tenant about that room being cold.
The landlord agreed there is no rangehood in the kitchen, but states it is a small space with a window they can open. Analysis
The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, but this tenancy needed to comply within 90 days of the tenancy start date.
The Insulation standard requires that the premises have qualifying insulation in the ceiling cavity, and under the floor if the floor is a suspended floor. To be considered ‘qualifying insulation’ the insulation must meet a minimum R value. The insulation must also be in a reasonable condition.
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. But for kitchens the landlord needs to have a mechanical extraction system, or other approved system.
The tenants have not convinced me that the insulation in the premises were not at the level required. The landlords evidence (supported with photographs) is that there was insulation in the ceiling and underfloor. The tenant agrees that is the case, but they say it was insufficient (too thing) or not in good order. But other than the tenants statement on this, no other supporting evidence has been presented. I cannot see any reason to prefer the tenants oral evidence over that of the landlord. I find this claim has not been established.
In relation to the kitchen extractor fan, the landlord agrees there was no extraction in the kitchen, the landlord acknowledged that this HHS obligation has not been met.
When the HHS obligations were introduced, they were well advertised. It is more likely than not that the landlord would have been aware of the obligations, and to that extent I consider any decision making was intentional.
Taking into account section 109, I consider exemplary damages should be ordered. There was an impact for the tenants in terms of there being an absence of an extraction unit, but I accept that could be mitigated with the window nearby. But there is a strong interest that homes be warm, dry and healthy, which is the overarching intention of the HHS.
The maximum level of exemplary damages for a breach of this obligation is $7,200.00. However in reality the impact for the tenants would be modest. I consider an order of $500.00 exemplary damages would be reasonable.

FIXED CHARGES ON WATER BILLS

The tenant states that during the tenancy then tenant paid the full amount of the water invoices. The tenant does not have all of the water bills, but based on paying $20.00 per month, estimates the charges would be some $300.00.
The tenancy started on 5 December 2021, and went to 15 My 2023.
The landlord acknowledged that fixed charges were not the responsibility of the tenant. In the circumstances the landlord agreed it would be reasonable that he reimburse the tenants the full claimed $300.00, and that is ordered.

FILING FEE

The applicant has been mostly successful in their claim before the Tribunal. I find it is reasonable therefore to award the filing fee paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case tenants have applied for name suppression, and as they have been substantially successful, name suppression is ordered.

Tenancy Tribunal case 4601829 — Exemplary damages

At a glance

Tenancy Tribunal case 4601829 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

FAILURE TO LODGE BOND

FAILURE TO PROVIDE AN HEALTHY HOMES STANDARDS STATEMENT

AND INSURANCE STATEMENT

BREACH OF HHS OBLIGATIONS

FIXED CHARGES ON WATER BILLS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

FAILURE TO LODGE BOND

FAILURE TO PROVIDE AN HEALTHY HOMES STANDARDS STATEMENT

AND INSURANCE STATEMENT

BREACH OF HHS OBLIGATIONS

FIXED CHARGES ON WATER BILLS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions