What was Tenancy Tribunal case 4605989 about?

The tribunal order states: The Tribunal orders suppression of the Tenant names and identifying details.

How much money was awarded in case 4605989?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4605989?

The primary dispute was Leaks. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4605989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9605927-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4605989 about?

The tribunal order states: The Tribunal orders suppression of the Tenant names and identifying details.

How much money was awarded in case 4605989?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4605989?

The primary dispute was Leaks. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4605989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9605927-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4605989 — Leaks

Order

The Tribunal orders suppression of the Tenant names and identifying details.
The landlord’s application is dismissed.

Reasons

Both parties attended the hearing. This is the third Tenancy Tribunal hearing about this tenancy. I made an order in January 2023 after the first hearing that the landlord pay compensation and exemplary damages to the tenants. The landlord applied for a rehearing of that decision and a second hearing was held. The rehearing was not allowed, and many of the grounds were dismissed because they were in fact claims against the tenants. The landlord consequently filed this application against the tenants in June 2023.
The claims include compensation because the tenants breached their duty to advise the landlord about the leaks and this meant there were additional repair costs for the landlord. The landlord was also concerned that the tenants breached their obligation to allow access. She also made a claim that I miscalculated the rent reduction allowed in my first order. The issues I have to decide are: • Can the landlord bring these claims against the tenants after two other hearings? • Did the tenants breach the duty to report leaks? • Did the tenants deny access?

Can the landlord bring these claims against the tenants after two other hearings?

There is a legal issue to be considered and that is whether the landlord can bring these claims against the tenants now, after two earlier hearings. There is a rule of law which says I cannot reconsider claims which have already been decided. The principle of res judicata has been defined by Spencer, Bower, Turner & Handly, in Res Judicata (3rd ed) 1996, Butterworths, paragraph 1v where it states: In English law a res judicata is a decision pronounced by judicial tribunal having jurisdiction over the case and the parties which disposes once and for all of all the matters decided, so that except on appeal, they cannot afterwards be relitigated between the same parties or their privies.
I have also considered the High Court decision of Muir, Bradbury, Peebles and Maud v Commissioner of Inland Revenue, and in particular to the paragraphs about striking out and res judicata. See CIV-2011404-1132 [2015] NZHC 792
As discussed in the Muir decision, there is a legal principle, known as the ‘rule of Henderson v Henderson’. This principle is that a party is required to present their entire case during the course of legal proceedings. The act of raising a line of argument in subsequent proceedings which could and should have been raised in the earlier proceedings constitutes an abuse of process and leaves the subsequent proceedings vulnerable to being struck out. The judgment states – Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances), permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. See Henderson v Henderson [1843] 3 Hare 100.
My starting point then is that landlords must bring their whole case against the tenants so that all matters can be resolved at the same time. This means there is less litigation, and the parties can move on. On the other hand, it is not unusual for an application and a cross application to be heard at different times in the Tenancy Tribunal, sometimes months apart. Here the landlord has brought claims which she says arise out of evidence given by the tenants at the first hearing. On balance, I find I should hear the landlord’s application because her claims are more than a defence to the original claims made by the tenants, and she has not had legal representation.
There is one claim which I find I cannot hear again because of res judicata and that is the claim about an overcalculation of compensation. This claim has been finalised, and we have had a rehearing, and it cannot be considered again.

Did the tenants breach the duty to report leaks?

The landlord claims the tenants did not notify her about the leaks in the house. She said as a result the cost of repair has increased significantly. She said she became aware of this breach when the tenants gave their oral testimony at the first hearing. The landlord wants compensation. Tenants are required to notify landlords, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs. See section 40(1)(d) of the Residential Tenancies Act 1986 (RTA).
The landlord claims that the:
The landlord is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
As to 1a and 1b, the tenants said they told the landlord about the leaks at an inspection in March 2022. The landlord agreed there was an inspection in March, but she did not have any supporting documentation – such as the notes from that inspection – to show me that leaks were not discussed at the inspection. She submitted that there was a requirement that the tenants submit any requests for maintenance in writing, but I find tenants can notify landlords about the need for maintenance and repair at inspections. This is the landlord’s claim to prove. The comments about the Healthy Home information being signed by the tenants is not conclusive. I am not persuaded the tenants failed to report the leak in the balcony room, and this part of the claim is dismissed.
The landlord’s evidence about leaks in the north west corner is that when the tenancy ended she went into the roof space and saw a broken tile in that corner of the building. She assumes there was a leak into the bedroom below because there was a mushroom growing in that bedroom. She said the tenants had not told her about that leak at all, and she assumes there must have been loss because she was not able to fix the roof in a timely manner. The tenant who used the north west bedroom said she there were no leaks into her room during the tenancy.
The landlord’s evidence about a leak in the south east corner is that she discovered the leak (the fourth leak) in January 2023. The tenants said they were not aware of a leak in the south east bedroom.
This is the landlord’s claim to prove. She did not find the broken tile or the “fourth leak” until after the tenants moved out. Given the length of time before the landlord discovered the problems, and the poor condition of the roof, it seems likely to me this deterioration happened after the tenancy ended. I am not persuaded by the landlord’s submission and this part of the claim is dismissed.
The landlord’s claims the tenants failed to report leaks, made her Healthy Home non – compliant, and prevented the landlord from mitigating her loss are all dismissed.

Did the tenants deny access?

The landlord claims the tenants did not allow entry to the premises when the landlord wanted to carry out an inspection in September 2022, and when a roofer needed access to the roof in October. A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
The landlord gave the correct notice for access to inspect the tenancy premises. The tenants were all away at the time. The mother of one of the tenants emailed the landlord and said the tenants were all away and she/they did not give permission for the inspection to take place. This should not have happened, and the tenants agreed at the hearing that this was not acceptable.
I find the landlord could have entered the tenancy premises and carried out the inspection even after the mother’s email. This is because proper notice had been given. Further, I note the tenants had other inspections and it was just this one they did not allow.
The landlord submitted that the tenants refused access to some roofers on 6 October 2022. Her proof of this came from a communication with the builder in January, a couple of months after the end of the tenancy. The tenants provided me with copies of messages and texts and a record of a voice recording all on 6 October talking about access for the builder. It seems most likely to me that the roofer could have entered the house if the builder was there.
I note that the tenants let many tradespeople into the house during the tenancy. It seems unlikely to me that they would refuse access to roofers, when they wanted the leaks repaired. I find the tenants’ evidence more persuasive than that the builder’s recollection months later.
I do not find the landlord has proved the tenants denied access and this claim is dismissed. Other orders
I have used my discretion to allow name suppression for the tenants because they have not breached the RTA and there is no public interest in them being named.

Tenancy Tribunal case 4605989 — Leaks

At a glance

Tenancy Tribunal case 4605989 — Leaks

At a glance

Claims & awards

Order

Reasons

Can the landlord bring these claims against the tenants after two other hearings?

Did the tenants breach the duty to report leaks?

Did the tenants deny access?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Can the landlord bring these claims against the tenants after two other hearings?

Did the tenants breach the duty to report leaks?

Did the tenants deny access?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions