What was Tenancy Tribunal case 4604470 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 4604470?

Compensation: Breach Quiet Enjoyment: $2,500.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4604470?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4604470?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9773737-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4604470 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 4604470?

Compensation: Breach Quiet Enjoyment: $2,500.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4604470?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4604470?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9773737-Tribunal_Order_Redacted.pdf.

Unit/Flat 2, 95 Maioro Street, New Windsor, Auckland 0600 Tenancy Tribunal Case 4604470 — State of repair

Claims and awards in Tenancy Tribunal application 4604470 — net $5,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failure to maintain	$2,500.00	failure to maintain
Compensation: breach quiet enjoyment	$2,500.00	breach quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,020.44
Total payable by Landlord to Tenant	$5,020.44

Claims and awards in Tenancy Tribunal application 4604470 — net $5,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failure to maintain	$2,500.00	failure to maintain
Compensation: breach quiet enjoyment	$2,500.00	breach quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,020.44
Total payable by Landlord to Tenant	$5,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants names and identifying details.
The application to reduce the fixed term is allowed, by consent, and the tenancy of [The tenant/s] at Unit/Flat 2, 95 Maioro Street, New Windsor, Auckland 0600 terminated, and possession returned to Anugraha Holdings Limited John Varghese, at 11:59pm on 21 October 2023.
Anugraha Holdings Limited John Varghese must pay [The tenant/s] $5,020.44 immediately. DescriptionTenant Exemplary damages: failure to maintain$2,500.00 Compensation: breach quiet enjoyment$2,500.00 Filing fee reimbursement$20.44 Total award$5,020.44
The tenants’ remaining claims are dismissed.
The landlord’s claims are dismissed.

Reasons

Both parties attended the hearing.
The tenants seek a reduction of the fixed term tenancy, together with compensation and exemplary damages for failure to maintain the property, breach of quiet enjoyment, entry onto the property without notice and failure to lodge the bond.
The landlord seeks compensation for mental distress, time off work to reply to the application, water rates, and the costs of pest removal previously reimbursed to the tenants. Background
The tenancy commenced on 19 February 2023 and is a fixed term due to end in February 2024.
The premises is a 3-bedroom apartment, above another, similar apartment. The landlord also owns a neighbouring property, and another down the same driveway.
There is construction of a further set of units underway in the back section on the shared driveway. Construction commenced in mid-April 2023. I was not advised of the anticipated end date for construction.
It is agreed that the tenants were not advised of the future construction at the time the tenancy agreement was signed.
Since the beginning of the tenancy the tenants have raised issues in relation to the condition of the plumbing in the showers at the property, asked the landlord to fix power points in the kitchen, and asked the landlord to repair the toilet seat and toilet roll holder in one of the bathrooms.
It is agreed that the bond was paid by the tenants, to a property management company, on 14 February 2023, but was not lodged with the Bond Centre until 22 May 2023. Exemplary Damages generally
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
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.
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. Failure to Lodge the bond
[The tenant/s] claim the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
There is a notice of Bond lodgement available to me to indicate that the bond was lodged on 22 May 2023. This is outside the required time for lodging a bond.
On the face of it, the landlord has committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The landlord provided an email from the property manager he engaged confirming that the bond was paid by the tenants on 14 February 2023 and confirmation that the bond was lodged on 1 March 2023 by the property manager. That is entirely at odd with the information noted by the Bond Centre, and I was unable to establish, from the Bond Centre, who made the payment on 22 May 2023.
Considering the advice given to the landlord that the bond was paid to the Bond Centre, and his use of a property manager to undertake those arrangements, I cannot conclude that the landlord acted intentionally in lodging the bond outside the required time frame.
While I accept there is an interest in the protection of bonds paid by tenants, noting that bonds remain tenants’ money, I am not satisfied that the landlord is responsible for the anomaly that occurred on this occasion.
The tenants, in the hearing, largely accepted that this was the correct position, given the information now available from the property manager.
The tenants’ application is dismissed. Failure to maintain
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenant allege that the landlord has failed to remedy the following issues: a. Installation of a P-trap in the shower. b. Repair of electrical sockets in the Kitchen. c. Replacement of a broken toilet roll holder in the bathroom.
The tenant has raised these issues with the landlord on a number of occasions, from the beginning of the tenancy. Particularly the lack of P-trap in the shower, which resulted in a foul smell when the shower was used.
The tenant has provided evidence from a plumber that the likely cause of the smell is the lack of a P-trap in the shower. I am mindful that this plumber is the father of one of the tenants, and therefore not independent. However, his evidence is consistent with comments made to the tenants by the plumber — [The Plumber] — engaged by the landlord to assess the situation. I was able to hear from [The Plumber] during the hearing. [The Plumber] also noted that the filter fitted by the landlord to repair the issue did not fit properly so was not effective.
The landlord replied on a statement from the installer of the shower, indicating that it was installed to standard. That relies on a p-trap being part of the requisite standard as evidence that there is, in fact, a p-trap present. However, the installer did not confirm that there was actually a trap installed.
On balance, I am satisfied that there is no P-trap installed, or if there is one, it is not functioning properly.
I am further satisfied that the landlord did not take sufficient, timely steps, to attend to this issue.
In relation to the power sockets, the landlord’s evidence is that there were repaired, and an invoice was produced to indicate this. However, the invoice relates to 1/95 Maioro Street (which had similar electrical issues), not 2/95 Maioro street. This is consistent with the tenant’s evidence. The landlord’s position is that this was an accident, and he instructed the electrician to fix these premises.
While I accept that the landlord intended to have the power sockets repaired, and that he instructed the electrician in this regard, I do not consider that sufficient steps were taken to ensure that the work was done. It should have been clear that the wrong property was repaired from the invoice, and the ongoing complainants from the tenants.
In relation to the toilet roll holder, this was notified at the start of the tenancy, and not repaired until August 2023. The only explanation for this was that the trades people were to liaise with the tenants directly. This is not good practice. The landlord is responsible for arranging maintenance and giving notice to the tenants, this cannot be left to tenants to arrange.
I find the landlord has committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure to act was that the tenants have been subjected to living with a foul odour and their concerns of associated health risks for several months.
I consider the landlord must have acted intentionally in failing to investigate and remedy this issue. While there was a period that the landlord was not in New Zealand, this was, in itself a breach of the Act as the landlord did not appoint an agent as required by the Act. The duration of the landlord’s failure to act is significant. From the landlord’s response in the written material, and in the Tribunal hearing, it is apparent that he simply did not believe the tenants and considered their allegations to be an affront to his reputation. The simple fact is that tenants are entitled, and in fact are expected, to raise maintenance issues with their landlords, who are then required to address those in a timely manner. Where there is a disagreement between the parties, application to the Tribunal is the appropriate remedy. It is not an affront to the reputation of either party to have a dispute determined in this manner. The fact that the landlord’s own tradesperson confirmed the tenants’ position is a clear indication that the landlord made insufficient enquiries as to the true position.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties safe and health condition.
I consider that an award of exemplary damages is appropriate in the case, and I award $2,500.00. Entry without notice
[The tenant/s] claim the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant allege that the landlord was at the property on several occasions without notice, although they do not appear to allege, he entered the dwelling. However, there is an allegation that an electrician engaged by the landlord entered the dwelling.
Coming to the property without notice is not a breach of the Act. Only entering the dwelling without notice. As will be clear below, the landlord also owns the neighbouring property, and he was at the premises on a regular basis to observe construction work there. On occasion he knocked on the door and spoke to the tenant without notice. Again, this is not a breach of the Act.
In relation to the electrician, as discussed above, he went to unit 1 rather than unit 2, so there was no entry into the premises without notice.
This portion of the application is dismissed. Breach of Quiet Enjoyment
Section 38 of the RTA provides: The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, though, or under the landlord or having superior title to that of the landlord and The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
The tenant has alleged numerous incidents of breaches of quiet enjoyment.
The Tribunal has been asked to determine cases before when there has been breaches of quiet enjoyment because of building and development work on the property. Many of those cases involve landlords not informing the tenant of the build. In the matter before me, the landlord seeks to justify any inconvenience that the tenant has faced by telling me that at the time the tenancy commenced he did not know that the work to the back site would be consented or that he would actually do the work during the tenancy.
Development and building work by its very nature is noisy and inconvenient for neighbouring properties, Council seeks to mitigate the noise by ensuring that building work only occurs between certain hours, and noise if kept under a certain level. Builders and developers are expected to act in a professional way, and not to trespass onto neighbouring properties and keep any inconvenience and interreference with neighbours to a minimum.
The build/development of the site started in April 2023 and still has not finished.
Having heard and seen all the evidence I am in no doubt that the landlord has breached the tenant’s quiet enjoyment on numerous occasions. The tenants work from home on occasion and have found the constant noise highly disruptive. There have been further issues with the contractors, including: a) Work starting as early as 6am. b) The tenants’ parking spaces being used for trucks and cranes. c) The tenants’ vehicles being blocked in more than 50 times since the construction commenced. This is worsened by the contactors response when being asked to move, which has ranged from laughing at the tenants to becoming aggressive. d) On occasions the tenants’ vehicles have been parked in by vehicles that cannot be readily moved, such as cranes. e) The landlord is onsite almost daily and often watching the tenants’ property, and enquiring about cars parked there, and who is staying with them.
The landlord’s position is that he did not advise the tenants prior to the tenancy that there may be construction as he did not believe that it would commence during the tenancy.
Further, he asked the builders to give the tenants notice of the commencement of the construction work.
The landlord accepts that he is onsite most days as he works nearby and checks in the construction during breaks or after work. While he accepts that he does face the tenants’ building while there, he denies staring at the tenants or looking in the windows. The landlord does accepted that he asked who else was staying with the tenants.
The landlord also says that he told his contractors not to go onto the tenants’ land and to be mindful of the tenant.
I am satisfied that the tenants have suffered a significant depreciation of use and enjoyment of the property because of the building work. I further find that the landlord did not take basic steps to mitigate any interference such as introducing the tenants to the project manager, meeting on site to set down clear rules about work times, explaining to the tenants the type of work that would be undertaken that week and the likely impact on them and the occupants of the house, and most of all having over control of the building site to ensure that any workers that breached the landlord’s obligations to the tenants and any complaints from the tenants were dealt with quickly to avoid further issue.
I am left with clear impression that the landlord gave scant regard for the impact of the building work on the tenants. No compensation, in terms of rent abatement was offered, and the landlord’s position is that he has done nothing wrong, and his other tenants have not complained.
I am satisfied that there were numerous breaches of the tenant’s use and enjoyment, privacy, and peace by the landlord.
I am satisfied that the breaches were stressful, annoying, frustrating, and constant.
When granting compensation, I have taken into the account that the tenants have had some amenity of living in the house.
Having carefully considered matters, including the lack of any offers of rent abatement or compensation, I consider that the appropriate compensation is $2,500.00. this reflects the loss of amenity and other issues the tenants have suffered during the construction.
The tenants have also applied for exemplary damages in respect of breaches of quiet enjoyment. To award exemplary damages for breaches of quiet enjoyment I must be satisfied that when the landlord breached the tenant’s quiet enjoyment it did so in a matter that amount to harassment of the tenant (s38 (3) RTA). Harassment means a pattern of behaviour to trouble, worry, distress war out or exhaust. Harassment is a pattern of events.
Whilst I am in no doubt that the tenants felt harassed, troubled worried and distress and exhausted by the breaches; an award of exemplary damages can only be made if the landlord acted with intent.
I do not consider that the actions of many people, who are agents of the landlord can be categorised as harassment by the landlord. Whilst the landlord did very little to mitigate the breaches of the tenant’s quiet enjoyment, I do not find that it did anything overt, such as telling contractors to act in a certain way toward the tenant that could be regarded as intention to harass the tenant. I therefore do not find that the landlord committed an unlawful act pursuant to s38 (3) and do not award any exemplary damages to the tenant for these breaches. Landlord’s claims
The landlord sought compensation for pest control following a complaint of maggots in the premises about a month after the tenancy commenced.
The landlord argues that the premises was “perfect” at the commencement of the tenancy, and the tenants were “lucky to live there”. The landlord says that the issues arose due to the tenants’ lack of cleanliness.
The landlord accepts that he is only claiming the cost now because of the tenants claims.
The tenants’ evidence – supported by photographs – is that the premises was not perfect at the commencement of the tenancy, with a tarpaulin, some food and rubbish left at the property. However, they believe the issues with maggots came from the humid moistness following the heavy weather event at the end of February. During that time the carpet was damp, and the tenants noticed several dead flies.
Landlords have the responsibility of ensuring that properties do not have pest issues at the commencement of the tenancy. Tenants must ensure that their actions during the tenancy do not encourage pests.
In this case, I consider that the maggot issue arose close enough to the commencement of the tenancy, and in combination with the weather issues in February, that the pest issue was for the landlord to address, not the tenants.
The landlord’s claim is dismissed.
The landlord also seeks costs of preparing for and attending the hearing, together with “mental agony” from responding to the tenants’ “false allegations”.
In relation to costs, this is covered by section 102 of the Act. Essentially, other than reimbursement of the filing fee costs are not recoverable unless: (a) where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought: (b) where any of the parties was represented by counsel: (c) where, in the opinion of the Tribunal, the matter in dispute ought reasonably to have been settled before the Tenancy Mediator but that the party against whom the order is to be made refused, without reasonable excuse, to take part in proceedings before a Tenancy Mediator or acted in any such proceedings in a contemptuous or improper manner: (d) where any applicant to the Tribunal, after receiving notice of the hearing, fails to attend the hearing without good cause.
Consistent with my substantive findings, I do not consider any of these applies to the present case.
There is no general jurisdiction to award compensation for stress and mental anguish claim. However, given my findings in favour of the tenants in most of their claims, this claim could not succeed in any event. Reduction in fixed term
The tenants have applied for reduction of the fixed-term tenancy.
The landlord consented to the early termination of the tenancy, and it terminated on 21 October 2023. Filing Fee
Because [The tenant/s] have substantially succeeded with the claim I have reimbursed the filing fee. Suppression
The tenants sought suppression of their names. As they have been substantially successful in their claim and their defence of that landlord’s claim they are entitled to suppression.
The landlord also sought name suppression, on the basis that he is a responsible landlord, and this is his first “bad experience” with a tenant. The landlord is affronted that the tenants have made allegations against him when he has done nothing wrong.
These submissions must be seen in light of my findings on the substantive matters. While I do not consider, for a moment, that the landlord is an irresponsible person, or that he acted with nefarious intent, I have found that he has breach the Act and the tenants’ rights on several occasions.
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
In the present case, the landlord was not wholly or substantially successful.
I have considered if I should grant a name suppression order for the landlord having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the landlord’s name and identifying details outweigh the interest of the open justice reporting principle.
In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the landlord and the public interest, the public interest outweighs the landlord’s interests.
Accordingly, no order is made for suppression of the landlord’s name and identifying details.

Tenancy Tribunal case 4604470 — State of repair at Unit/Flat 2, 95 Maioro Street, New Windsor, Auckland 0600

At a glance

Tenancy Tribunal case 4604470 — State of repair at Unit/Flat 2, 95 Maioro Street, New Windsor, Auckland 0600

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions