What was Tenancy Tribunal case 4609289 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 4609289?

Compensation: Dryer: $200.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4609289?

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

Where can I read the official tribunal order for case 4609289?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9364401-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4609289 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 4609289?

Compensation: Dryer: $200.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4609289?

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

Where can I read the official tribunal order for case 4609289?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9364401-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4609289 — Exemplary damages

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New Zealand Tenancy Tribunal Case 4609289 — 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 4609289 — net $3,370.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Dryer	$200.00	Dryer
Exemplary damages: Failure to lodge bond (s19	$500.00	Failure to lodge bond (s19
Exemplary damages: Breach of landlords obligations (s45	$2,400.00	Breach of landlords obligations (s45
Exemplary damages: HHS information (s13A	$250.00	HHS information (s13A
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,370.44
Total payable by Landlord to Tenant	$3,370.44

Claims and awards for application 4609289 — net $3,370.44 NZD. Verify on MoJ.

Compensation: Dryer

Amount: $200.00
Awarded to: Tenant
Reason: Dryer

Exemplary damages: Failure to lodge bond (s19

Amount: $500.00
Awarded to: Tenant
Reason: Failure to lodge bond (s19

Exemplary damages: Breach of landlords obligations (s45

Amount: $2,400.00
Awarded to: Tenant
Reason: Breach of landlords obligations (s45

Exemplary damages: HHS information (s13A

Amount: $250.00
Awarded to: Tenant
Reason: HHS information (s13A

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Dismissed claims

Other Claims — All other claims dismissed

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 Tenants name and identifying details.
Greg And Charlotte Keenan must pay [The tenant/s] $3,370.44 immediately, calculated as shown in table below: DescriptionTenant Compensation: Dryer$200.00 Exemplary damages: Failure to lodge bond (s19)$500.00 Exemplary damages: Breach of landlords obligations (s45) $2,400.00 Exemplary damages: HHS information (s13A)$250.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$3,370.44
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). The tenant seeks orders for compensation and exemplary damages on a number of grounds as I will set out below.
A hearing was convened in Manukau on 31 August 2023. In attendance was [The tenant/s] with a support person, and representing the landlord was Mr Ng. A statement was provided from the owners of the premises who had previously lived in the house.
The tenancy agreement records the landlords as Greg and Charlotte Keenan by way of a property manager Clarke Group Property Management. The sole tenant is [The tenant/s]. The tenancy is a fixed term tenancy which commenced on 20 August 2022 ending on 20 August 2023. The weekly rental is $595.00.

RELEVANT LEGAL CONSIDERATIONS FOR HEARING

As explained at the hearing, as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

TENANTS CLAIMS

The tenant has presented her claims in a comprehensive written submission sent in advance of the hearing. At the hearing we worked through those claims in turn.

COMPENSATION CLAIMS

The landlord has made compensation claims in relation to drainage at the premises, and in relation to the tumble dryer. Compensation can be ordered to remedy a loss incurred by either party, but in order to make such an order, the loss must arise as a consequence of a breach of some legal obligation between the parties. Compensation for lack of drainage
The tenant states that when she moved into the tenancy, she found that the ground was sodden, and she could not use the tenancy as she had intended, and in particular to have an area that her dogs could use. The tenants position is that given the wet conditions on the ground, it was not consistent with her ‘sausage dogs’ being able to use the grass. Given the puddles and mud, given the dogs are so low to the ground, they would get wet and muddy from the ground.
The tenant states that this was raised with the landlord when she first moved into the premises, and nothing was done about this, hence a 14 day notice to remedy was issued. After that the landlord did have drainage installed, which has helped with the drainage at the front of the house, but not the back of the premises.
The tenants position is that there is a breach of the healthy homes standards.
The landlords position is that drainage was installed, but otherwise the evidence from the owner is that there was not any earlier problem with drainage.
The tenant concluded by saying that “there is a river running through the garden”, and she the landlord has not remedied the 14 day notice. Analysis
The tenants position is that the premises breach the HHS because it does not have an appropriate outfall. The relevant provision of the HHS say 27 Tenancy building to have efficient drainage system (1) The tenancy building must have a drainage system that efficiently drains storm water, surface water, and ground water to an appropriate outfall. (2) The drainage system must include appropriate gutters, downpipes, and drains for the removal of water from the roof.
At the hearing I raised with the tenant that my interpretation of the HHS drainage standard was that the standard was aimed at setting expectations around the dwelling (“the tenancy building”). In this case the tenant has not identified any defect with the drainage system of the building. Therefore there is no breach of the HHS.
The tenant submitted that the 14 day notice has not been complied with, and further that she was paying rental for a garden area she could not use.
The mere fact of the landlord was complying with a 14 day notice is not determinative of a claim for compensation, because the landlord would only need to comply with a 14 day notice if there was a legal obligation that they needed to meet. To give an example, the landlord has a legal obligation to provide working smoke alarms. If during the tenancy the smoke alarms failed, then the tenant could give a 14 day notice to replace the smoke alarms, and the landlord will need to comply with that because there was a legal basis to do so. A landlord’s failure to comply with a 14 day notice is not a pre-requisite to an order for compensation, breach of a 14 day notice would however be relevant if there was an application to terminate the tenancy, or for work orders.
So the real question is whether or not there has been a breach of some legal obligation is it relates to drainage at the Tenancy, and I find on the evidence available a breach has not been proven.
I have not been provided with any evidence from a suitably qualified tradesperson which identifies a problem with drainage at the Tenancy. What I do have is the tenants report that there was an issue with drainage, but I also have the statement provided by the landlord, that there was not an issue for them living there or the prior tenant. The tenant has provided a photograph taken in August showing pooling of water on the ground, but to be fair that could be a consequence of heavy rain to premises after the drainage installation. The landlords evidence was that they lived there and had no issues with drainage, nor had the prior tenant. It is not clear to me what would have changed at the Tenancy before [The tenant/s] tenancy commenced.
I recognise that the landlord did fund drainage works to the tenancy, but that is not an admission of liability. My impression reading the landlord statement is that they wanted to do good by the tenant, so because she was concerned at the drainage, they had funded the drainage works to be undertaken.
The photographs provided by the parties show in my view, that the grass was in good condition (prior to the contracted drainage work), and not consistent with a yard with drainage issues as described by the tenant.
The landlord is required to meet reasonable expectations in relation to the tenancy generally, not expectations specific to the tenant, such as the tenant having dogs which are by their nature very low to the ground.
Taking into account that the onus sits with [The tenant/s] to establish her claim, and being unable to identify any deficiency with drainage at the Tenancy that could be considered an obligation on the landlord to remedy, I find this claim has not been established so it must be dismissed. Tumble dryer
The tenant states that she found the tumble dryer was dripping water so needed to be fixed. Someone came to the premises to inspect it and advised it had been incorrectly serviced previously with the wrong belt, and that it should not be used. After some weeks the tenant states she was contacted by someone to bring a new tumble dryer. While the tenant says that originally she was not agreeable to an installation in the weekend, when a day was agreed he did not turn up. Ultimately when a machine was installed, it was so big she could not then open her washing machine. Ultimately a replacement dryer was provided, but improperly installed upside down. The tenant considers that the actions of the landlord are intended just to beat her down. When the landlord again went to address the dryer, the tenant says she advised the landlord she did not want to have the dryer addressed, given the effect it was having on her.
The landlord states there were problems and delays getting the assessment with the contractor, after which the landlord confirmed the dryer should be replaced. When the tenant was not able open the lid of the washing machine, the landlord then had a second unit replaced, but that was installed upside down. The landlord advised they remain willing to replace the dryer when the tenant allows access to the premises. Analysis
The tenancy was provided with a tumble dryer, and to that extent, the tenant was paying rent for that appliance which needed to work. The tenants evidence was that she did not use the tumble dryer too much, but nevertheless it was an item that should have been in working order should the tenant wish to use it.
The fact that the dryer required an initial replacement is not particularly relevant, items of whiteware do not last forever, and sooner or later a replacement will be necessary. The fact the appliance needed to be changed does not lead to an order of compensation, but compensation may be required, if the item is not replaced efficiently. In my assessment they were unreasonable delays with having the dryer replaced, and the tenant should be compensated for the lost rental (amenity) as a result. I recognise that the dryer has not yet been replaced, but it seems the tenant is not willing to allow the landlord entry to undertake the replacement, so it would not be reasonable to order continued rent compensation.
The dryer was reported to the landlord as faulty on 19 June 2023.
Determining the level of rent compensation for these sorts of claims is very difficult. Being able to precisely determine the proportion of rent that would have been lost, is virtually impossible, the best I can do is to step back and consider what would be a reasonable order in the circumstances. Of course the tenant has had amenity in relation to the rest of the tenancy, the loss of amenity in the tenancy overall is very small as it relates to the tumble dryer. I consider an order of $200.00 would be reasonable in the circumstances, and that is ordered.

EXEMPLARY DAMAGES 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. 34. Exemplary damages for breach of landlords obligations under section 45
The tenant claims exemplary damages on the basis of breaches under section 45 – the landlords obligations Cleanliness
The tenant states that when she moved in there was a range of ‘junk’ left on the premises
In response the landlord agreed that there was some items left by the owner, but disputes that there was junk left everywhere. The property manager did arrange someone to remove these items. The landlord accepted there were some items left on the premises.
The landlord accepts there were items on the premises that would be classed as ‘junk’.
Section 45(1)(a) requires the landlord to provide the premises reasonably clean. I am satisfied the landlord has not complied with the that obligation, because there was a range of items left in the tenancy, some of which would be classified as ‘junk’. The landlord must in addition provide vacant position at the start of the tenancy, which means in effect empty. The landlord has breached section 45(1)(a). Maintenance
The tenants states that there was an olive tree that needed to be trimmed, and it was causing mould to grow on the deck alongside a gutter leak. The tenant said the landlord had advised this would be done prior to the tenant moving into the premise.
The landlord states that following an inspection a work order was made to prune the trees, and this was undertaken by a contractor, an invoice has been received for that work in February 2023. The landlord further referred to a request to repair a leak in the gutter so as to avoid mould build up on the deck, and that work was completed and invoiced on 16 February 2023.
The tenant raised further issues that the premises has a DVS system which does not work in summer, and the unit has not been serviced. The tenant says that the unit switches itself off in summer, but she does not know why that is or if it is a fault. The tenant said she needs to run her own dehumidifier.
In relation to the DVS system, the landlords position is that this unit is in place, but if the tenant says it is not working, they would need to get someone there to assess the unit. Analysis
This claim is finally balanced, but overall I am not persuaded that there is sufficient evidence to establish the landlord has failed to reasonably maintain the premises.
There is no doubt that the obligation to maintain the tenancy sits with the landlord. It is not particularly uncommon in this jurisdiction, for there to be differing opinions between landlords and tenants around whether maintenance is necessary, or whether landlords have been sufficiently expeditious in getting maintenance completed.
As it relates to trimming the tree, and fixing the gutter, it could certainly be argued that the landlord could have got onto that work sooner, but ultimately it was done. In relation to mould on the deck, I am not persuaded that the landlord has unreasonably failed to address the condition of the exterior deck. In relation to the DVS unit, the tenant has not proven that there is a fault with the DVS unit that meant it would not work as it was designed to do.
I find no breach of the landlords maintenance obligation has been established. Smoke alarms
The tenant states that when she moved in, the smoke alarm was beeping, and she needed to put in a new battery to get it working properly. Further the tenant considers there was insufficient smoke alarms in the premises, as there was only one. It was later discovered the smoke alarm was expired.
The landlord has accepted the smoke alarm was not compliant when the tenant moved in. Analysis
Section 45(1)(ba) of the Residential Tenancies Act 1986 (RTA) requires that landlords comply with all requirements in relation to smoke alarms made under section 138A.
The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational.
The landlords representative has fairly and appropriately acknowledged that the landlord has not complied with its obligations around smoke alarms. That relates to the number of smoke alarms in the dwelling (proximity to bedrooms), the serviceability of the alarms (needing batteries), or the expiry of the units.
The landlord has committed an unlawful act around the smoke alarms. Healthy Homes Standards
The tenant claims that the gutter was leaking, which caused mould on the deck and therefore was a breach of the HHS. The tenant states that the fix for the gutter was to silicone the gutter, but that ultimately failed. The tenant said that she needed to clean the mould on the deck herself.
The landlord replied that the gutter was repaired, and the premises has been assessed as compliant. Analysis
I accept that there was a leak in the joint of a gutter, above the deck. But I do not consider this is a breach of the landlords HHS obligation per say, rather the issue falls into the maintenance category. To put it another way, the premises did have suitable gutters to remove water, but the gutter needed maintenance when it started leaking. Health and Safety requirements
This claim related to the smoke alarms issues. I have already addressed the smoke alarm obligations above, and as noted I accept there is a breach. It would not be appropriate to assess that breach twice given the breach is in relation to the smoke alarm regulations which has already been considered.

Should exemplary damages be awarded for breach of section 45?

As set out above, I find the landlord has breached its obligations under section 45 as it relates to: a. Cleanliness b. Smoke alarms
Again taking into account the section 109 factors, I consider that exemplary damages for these two breaches should be ordered: a. Again the landlord has a professional property management firm running the tenancy, and it is more likely than not that the agent would have been well aware of its obligations around cleanliness and smoke alarms. To the extent I find the breach intentional. b. The effect for the tenant is that she did not have the benefit of a house free from discarded items when she start of the tenancy, and needed to work with the landlord to have them removed. In relation to the smoke alarms, the premises were less safe than that they should have been. c. There is an extremely strong interest for tenants, landlords and the general public, that residential tenancies have working smoke alarms. There is a strong interest that Tenancies be clean when the tenancy commences. d. It would be just to make an order for exemplary damages.
The maximum level of exemplary damages that can be ordered for a breach of section 45, is $7,200.00. I consider an order at the one third of the maximum level would be reasonable, and therefore order exemplary damages for these breaches of $2,400.00. Failure to lodge bond
The tenant’s position is that the landlord failed to lodge the tenants bond. The tenant states the bond was paid to the landlord on 28 July 2022. The tenant says it was then lodged on 5 September 2022, being 26 working days late.
The landlord does not dispute that the bond was not lodged on time, and advised this was because of an accounting practice that they have now changed. Analysis
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. In this case there is no dispute that the bond was not lodged as required by the RTA, and therefore and an unlawful act arises.
I consider that exemplary damages should be ordered, again taking into account the section 109 factors: a. It is more likely than not that the decisions around bond lodgement were intentional. Again I note the landlord is represented by an agent, a professional property manager, who unquestionably will know their obligations around the bond lodgement. b. The impact for the tenant is that her bond was not lodged securely as it was required by law to be. The bond is the tenants money, and it should be lodged within the time required by the RTA. c. There is a very strong interest for tenants, landlords, and the public generally that the tenancy bond system work efficaciously, which requires funds to be lodged into the Bond Centre as required. d. It would be just to make an order.
The maximum level of exemplary damages that can be ordered for a breach of the landlord’s bond obligations is $1,500.00. Again I consider an order at one third of the maximum to be reasonable in this case. I have taken into consideration that the Bond has been lodged by the landlord even if late. Failure to keep records
The tenant states that the landlord has failed to keep records, which has resulted in the landlord contacting the tenant to pursue rent arrears, which the tenant disputes were owed. The tenant agrees there were rent arrears, and that she had communicated that fact with the landlord and advised that she would pay it, and states the landlord was agreeable to that. The tenant is deeply aggrieved that the landlord filed a rent arrears application with the Tribunal to pursue the rent arrears.
The landlords position is that there were arrears, and it was settled at the mediation.
I raised with the tenant that I could not see the landlord had committed an unlawful act under section 29(5). The tenant responded that I should take into account the harassment and stress caused by the landlord pursuing the rent arrears claim. Analysis
Section 29 relates to ‘receipts for rent’ and requires that: (3) On the written request of the tenant, the landlord shall also give to the tenant a written statement of the period to which any payment of rent relates.
Under subsection 5, failure to give a receipt or written statement after being requested in writing to provide one, is declared an unlawful act. However neither of those situations arises. The tenant confirmed that she did not make it any cash payments which would have required a receipt, nor has she requested in writing, that a written statement of the rent account be provided. In the absence of an unlawful act to be established, there can be no basis to order exemplary damages.
The tenant has taken significant issue with the landlord pursuing a claim for rent arrears. In this case the tenant acknowledged that she did in fact have rent arrears. The tenant has breached her obligation to the landlord under section 40(1)(a) to: pay the rent as and when it is due and payable under the tenancy agreement
The tenant says that she had notified the landlord that she would be late with rent payments, and the landlord should not have taken any further action, in particular the landlord should not have filed the application with the Tribunal. I disagree. It is not at all in common in this sort of situation, for a landlord to seek a mediation in the Tribunal as it is done in this case. When rent arrears arise, the landlord was entitled by law to pursue it, and that could include an application to the Tenancy Tribunal, whether to proceed to the Tribunal for an adjudicated order, or to work with a tenancy mediator to document how the arrears will be paid, and therefore resolved.
I cannot agree that the landlord filing an application with the Tribunal as the landlord has done in this case, would be deemed harassment of the tenant.
This claim is dismissed. Failure to provide HHS information
The tenant states that the HHS certificate provided with the tenancy agreement was undertaken in 2020, and showed there had been non- compliance with insulation. The tenant says that when this was raised with the landlord, the landlord straight away provided a new updated statement being an amended report, but did not provide photographs confirming if there had been a resolution of any breach around insulation. The tenant states she was concerned about ventilation and insulation, and she does not know if the certificate that the landlord “fabricated” was lawful. The tenant considers a new assessment should have been undertaken. The tenant says she is “concerned” the premises do not meet the HHS requirements, and she does not know if the house is compliant with the HHS.
In response the landlord states the insulation was made complaint before the tenancy in 2021, and the hearing shortly after the tenancy started in 2022, and otherwise the premises is now compliant with the HHS.
The tenant states that if the insulation was done prior, why did the landlord give the old assessment report. Analysis
Landlords are required to provide a minimum information set on their tenancy agreement as it relates to the HHS obligations for the premises. 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).
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA).
I am satisfied that the landlord has complied with the sub-subsection (a), that requirement is addressed on page 4 of the tenancy agreement.
The question then becomes whether the landlord has complied with sub- subsection (b). That provision requires compliance with certain prescribed regulations introduced under section 138B(5). The relevant regulations will be the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Part 3 of the regulations requires information to be provided in the tenancy agreement in relation to the five standards (heating, insulation, ventilation, draught stopping, and moisture ingress and drainage).
In this case the landlord has elected not to provide a statement in the tenancy agreement per se, but to provide the full assessment report. I note this approach is not usual. Conceptually providing the assessment report that included everything that the landlord needed to provide in the HHS statement would be no problem, but in this case the report does not include the necessary information. For the purpose of this order, I will look only at the insulation standard. The regulations require that the following information be provided on the HHS statement around insulation (which I am summarising): a. The date insulation was installed. b. Either the R value when installed or the thickness on last inspection. c. If the ceiling or underfloor is not insulated, why that is the case. d. Why any exemption to being insulated would apply.
In this case the report from the assessor does not provide that required information, it simply records that the insulation in the ceiling did not comply and further insulation was needed. There is no date of installation for the ceiling or floor insulation. There is no R value at installation provided for the ceiling or underfloor insulation.
In short, the report provided with the tenancy agreements did not provide the information required in the regulations, and that becomes an unlawful act under section 13A(1F).
Taking into account the section 109 factors, I consider that exemplary damages should be ordered: a. The landlord is represented by a property manager. The obligations around Tenancy agreements is well known, and the property manager should have been well aware of the information necessary with Tenancy agreements. I consider the failure to provide the necessary information to have been intentional. b. The effect for the tenant has that she was not adequately put on notice as to the minimum information set the law required in HHS statements. c. There is a strong interest for tenants particular, and the general public, that Tenancies meet the minimum standards around healthy homes, and providing a proper HHS statements is an important means to achieve that aim. d. It would be just to make an order.
The maximum level of exemplary damages for a breach of section 13A(1F)(a) is $750.00. In this case I will order one third of the maximum. I can see no features that would argue for an order at a higher level, or to excuse the breach, and order a lesser amount. I therefore order the payment of $250.00 exemplary damages. FILING FEE AND NAME SUPPRESSION, AND ADJUDICATORS OBSERVATION
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.
While the matter is finely balanced, I will accept that the tenant has been substantially successful in the proceeding, so the application for name suppression is granted.
I conclude by noting that the tenant has raised serious allegations concerning the behaviour of the landlord, such as the actions of the landlord being designed to harass her, and cause her anxiety. There is no evidence to support that. Undoubtedly some things could have been done quicker, and better with the benefit of hindsight. But there is no evidence to suggest that the tenant has been targeted by the landlord, as the tenant considers has been the case here.
By impression is that the tenant seeks not unreasonably to have safety and security in her tenancy, and to enjoy the quiet enjoyment the law requires that she receive. I am hopeful that with the dispute that is the subject of this application being determined, that the parties will be able to draw a line under the areas of concern, and move on in a more positive and constructive relationship moving forward.

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 4609289 — net $3,370.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Dryer	$200.00	Dryer
Exemplary damages: Failure to lodge bond (s19	$500.00	Failure to lodge bond (s19
Exemplary damages: Breach of landlords obligations (s45	$2,400.00	Breach of landlords obligations (s45
Exemplary damages: HHS information (s13A	$250.00	HHS information (s13A
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,370.44
Total payable by Landlord to Tenant	$3,370.44

Claims and awards for application 4609289 — net $3,370.44 NZD. Verify on MoJ.

Compensation: Dryer

Amount: $200.00
Awarded to: Tenant
Reason: Dryer

Exemplary damages: Failure to lodge bond (s19

Amount: $500.00
Awarded to: Tenant
Reason: Failure to lodge bond (s19

Exemplary damages: Breach of landlords obligations (s45

Amount: $2,400.00
Awarded to: Tenant
Reason: Breach of landlords obligations (s45

Exemplary damages: HHS information (s13A

Amount: $250.00
Awarded to: Tenant
Reason: HHS information (s13A

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Dismissed claims

Other Claims — All other claims dismissed

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 Tenants name and identifying details.
Greg And Charlotte Keenan must pay [The tenant/s] $3,370.44 immediately, calculated as shown in table below: DescriptionTenant Compensation: Dryer$200.00 Exemplary damages: Failure to lodge bond (s19)$500.00 Exemplary damages: Breach of landlords obligations (s45) $2,400.00 Exemplary damages: HHS information (s13A)$250.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$3,370.44
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). The tenant seeks orders for compensation and exemplary damages on a number of grounds as I will set out below.
A hearing was convened in Manukau on 31 August 2023. In attendance was [The tenant/s] with a support person, and representing the landlord was Mr Ng. A statement was provided from the owners of the premises who had previously lived in the house.
The tenancy agreement records the landlords as Greg and Charlotte Keenan by way of a property manager Clarke Group Property Management. The sole tenant is [The tenant/s]. The tenancy is a fixed term tenancy which commenced on 20 August 2022 ending on 20 August 2023. The weekly rental is $595.00.

RELEVANT LEGAL CONSIDERATIONS FOR HEARING

As explained at the hearing, as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

TENANTS CLAIMS

The tenant has presented her claims in a comprehensive written submission sent in advance of the hearing. At the hearing we worked through those claims in turn.

COMPENSATION CLAIMS

The landlord has made compensation claims in relation to drainage at the premises, and in relation to the tumble dryer. Compensation can be ordered to remedy a loss incurred by either party, but in order to make such an order, the loss must arise as a consequence of a breach of some legal obligation between the parties. Compensation for lack of drainage
The tenant states that when she moved into the tenancy, she found that the ground was sodden, and she could not use the tenancy as she had intended, and in particular to have an area that her dogs could use. The tenants position is that given the wet conditions on the ground, it was not consistent with her ‘sausage dogs’ being able to use the grass. Given the puddles and mud, given the dogs are so low to the ground, they would get wet and muddy from the ground.
The tenant states that this was raised with the landlord when she first moved into the premises, and nothing was done about this, hence a 14 day notice to remedy was issued. After that the landlord did have drainage installed, which has helped with the drainage at the front of the house, but not the back of the premises.
The tenants position is that there is a breach of the healthy homes standards.
The landlords position is that drainage was installed, but otherwise the evidence from the owner is that there was not any earlier problem with drainage.
The tenant concluded by saying that “there is a river running through the garden”, and she the landlord has not remedied the 14 day notice. Analysis
The tenants position is that the premises breach the HHS because it does not have an appropriate outfall. The relevant provision of the HHS say 27 Tenancy building to have efficient drainage system (1) The tenancy building must have a drainage system that efficiently drains storm water, surface water, and ground water to an appropriate outfall. (2) The drainage system must include appropriate gutters, downpipes, and drains for the removal of water from the roof.
At the hearing I raised with the tenant that my interpretation of the HHS drainage standard was that the standard was aimed at setting expectations around the dwelling (“the tenancy building”). In this case the tenant has not identified any defect with the drainage system of the building. Therefore there is no breach of the HHS.
The tenant submitted that the 14 day notice has not been complied with, and further that she was paying rental for a garden area she could not use.
The mere fact of the landlord was complying with a 14 day notice is not determinative of a claim for compensation, because the landlord would only need to comply with a 14 day notice if there was a legal obligation that they needed to meet. To give an example, the landlord has a legal obligation to provide working smoke alarms. If during the tenancy the smoke alarms failed, then the tenant could give a 14 day notice to replace the smoke alarms, and the landlord will need to comply with that because there was a legal basis to do so. A landlord’s failure to comply with a 14 day notice is not a pre-requisite to an order for compensation, breach of a 14 day notice would however be relevant if there was an application to terminate the tenancy, or for work orders.
So the real question is whether or not there has been a breach of some legal obligation is it relates to drainage at the Tenancy, and I find on the evidence available a breach has not been proven.
I have not been provided with any evidence from a suitably qualified tradesperson which identifies a problem with drainage at the Tenancy. What I do have is the tenants report that there was an issue with drainage, but I also have the statement provided by the landlord, that there was not an issue for them living there or the prior tenant. The tenant has provided a photograph taken in August showing pooling of water on the ground, but to be fair that could be a consequence of heavy rain to premises after the drainage installation. The landlords evidence was that they lived there and had no issues with drainage, nor had the prior tenant. It is not clear to me what would have changed at the Tenancy before [The tenant/s] tenancy commenced.
I recognise that the landlord did fund drainage works to the tenancy, but that is not an admission of liability. My impression reading the landlord statement is that they wanted to do good by the tenant, so because she was concerned at the drainage, they had funded the drainage works to be undertaken.
The photographs provided by the parties show in my view, that the grass was in good condition (prior to the contracted drainage work), and not consistent with a yard with drainage issues as described by the tenant.
The landlord is required to meet reasonable expectations in relation to the tenancy generally, not expectations specific to the tenant, such as the tenant having dogs which are by their nature very low to the ground.
Taking into account that the onus sits with [The tenant/s] to establish her claim, and being unable to identify any deficiency with drainage at the Tenancy that could be considered an obligation on the landlord to remedy, I find this claim has not been established so it must be dismissed. Tumble dryer
The tenant states that she found the tumble dryer was dripping water so needed to be fixed. Someone came to the premises to inspect it and advised it had been incorrectly serviced previously with the wrong belt, and that it should not be used. After some weeks the tenant states she was contacted by someone to bring a new tumble dryer. While the tenant says that originally she was not agreeable to an installation in the weekend, when a day was agreed he did not turn up. Ultimately when a machine was installed, it was so big she could not then open her washing machine. Ultimately a replacement dryer was provided, but improperly installed upside down. The tenant considers that the actions of the landlord are intended just to beat her down. When the landlord again went to address the dryer, the tenant says she advised the landlord she did not want to have the dryer addressed, given the effect it was having on her.
The landlord states there were problems and delays getting the assessment with the contractor, after which the landlord confirmed the dryer should be replaced. When the tenant was not able open the lid of the washing machine, the landlord then had a second unit replaced, but that was installed upside down. The landlord advised they remain willing to replace the dryer when the tenant allows access to the premises. Analysis
The tenancy was provided with a tumble dryer, and to that extent, the tenant was paying rent for that appliance which needed to work. The tenants evidence was that she did not use the tumble dryer too much, but nevertheless it was an item that should have been in working order should the tenant wish to use it.
The fact that the dryer required an initial replacement is not particularly relevant, items of whiteware do not last forever, and sooner or later a replacement will be necessary. The fact the appliance needed to be changed does not lead to an order of compensation, but compensation may be required, if the item is not replaced efficiently. In my assessment they were unreasonable delays with having the dryer replaced, and the tenant should be compensated for the lost rental (amenity) as a result. I recognise that the dryer has not yet been replaced, but it seems the tenant is not willing to allow the landlord entry to undertake the replacement, so it would not be reasonable to order continued rent compensation.
The dryer was reported to the landlord as faulty on 19 June 2023.
Determining the level of rent compensation for these sorts of claims is very difficult. Being able to precisely determine the proportion of rent that would have been lost, is virtually impossible, the best I can do is to step back and consider what would be a reasonable order in the circumstances. Of course the tenant has had amenity in relation to the rest of the tenancy, the loss of amenity in the tenancy overall is very small as it relates to the tumble dryer. I consider an order of $200.00 would be reasonable in the circumstances, and that is ordered.

EXEMPLARY DAMAGES 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. 34. Exemplary damages for breach of landlords obligations under section 45
The tenant claims exemplary damages on the basis of breaches under section 45 – the landlords obligations Cleanliness
The tenant states that when she moved in there was a range of ‘junk’ left on the premises
In response the landlord agreed that there was some items left by the owner, but disputes that there was junk left everywhere. The property manager did arrange someone to remove these items. The landlord accepted there were some items left on the premises.
The landlord accepts there were items on the premises that would be classed as ‘junk’.
Section 45(1)(a) requires the landlord to provide the premises reasonably clean. I am satisfied the landlord has not complied with the that obligation, because there was a range of items left in the tenancy, some of which would be classified as ‘junk’. The landlord must in addition provide vacant position at the start of the tenancy, which means in effect empty. The landlord has breached section 45(1)(a). Maintenance
The tenants states that there was an olive tree that needed to be trimmed, and it was causing mould to grow on the deck alongside a gutter leak. The tenant said the landlord had advised this would be done prior to the tenant moving into the premise.
The landlord states that following an inspection a work order was made to prune the trees, and this was undertaken by a contractor, an invoice has been received for that work in February 2023. The landlord further referred to a request to repair a leak in the gutter so as to avoid mould build up on the deck, and that work was completed and invoiced on 16 February 2023.
The tenant raised further issues that the premises has a DVS system which does not work in summer, and the unit has not been serviced. The tenant says that the unit switches itself off in summer, but she does not know why that is or if it is a fault. The tenant said she needs to run her own dehumidifier.
In relation to the DVS system, the landlords position is that this unit is in place, but if the tenant says it is not working, they would need to get someone there to assess the unit. Analysis
This claim is finally balanced, but overall I am not persuaded that there is sufficient evidence to establish the landlord has failed to reasonably maintain the premises.
There is no doubt that the obligation to maintain the tenancy sits with the landlord. It is not particularly uncommon in this jurisdiction, for there to be differing opinions between landlords and tenants around whether maintenance is necessary, or whether landlords have been sufficiently expeditious in getting maintenance completed.
As it relates to trimming the tree, and fixing the gutter, it could certainly be argued that the landlord could have got onto that work sooner, but ultimately it was done. In relation to mould on the deck, I am not persuaded that the landlord has unreasonably failed to address the condition of the exterior deck. In relation to the DVS unit, the tenant has not proven that there is a fault with the DVS unit that meant it would not work as it was designed to do.
I find no breach of the landlords maintenance obligation has been established. Smoke alarms
The tenant states that when she moved in, the smoke alarm was beeping, and she needed to put in a new battery to get it working properly. Further the tenant considers there was insufficient smoke alarms in the premises, as there was only one. It was later discovered the smoke alarm was expired.
The landlord has accepted the smoke alarm was not compliant when the tenant moved in. Analysis
Section 45(1)(ba) of the Residential Tenancies Act 1986 (RTA) requires that landlords comply with all requirements in relation to smoke alarms made under section 138A.
The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational.
The landlords representative has fairly and appropriately acknowledged that the landlord has not complied with its obligations around smoke alarms. That relates to the number of smoke alarms in the dwelling (proximity to bedrooms), the serviceability of the alarms (needing batteries), or the expiry of the units.
The landlord has committed an unlawful act around the smoke alarms. Healthy Homes Standards
The tenant claims that the gutter was leaking, which caused mould on the deck and therefore was a breach of the HHS. The tenant states that the fix for the gutter was to silicone the gutter, but that ultimately failed. The tenant said that she needed to clean the mould on the deck herself.
The landlord replied that the gutter was repaired, and the premises has been assessed as compliant. Analysis
I accept that there was a leak in the joint of a gutter, above the deck. But I do not consider this is a breach of the landlords HHS obligation per say, rather the issue falls into the maintenance category. To put it another way, the premises did have suitable gutters to remove water, but the gutter needed maintenance when it started leaking. Health and Safety requirements
This claim related to the smoke alarms issues. I have already addressed the smoke alarm obligations above, and as noted I accept there is a breach. It would not be appropriate to assess that breach twice given the breach is in relation to the smoke alarm regulations which has already been considered.

Should exemplary damages be awarded for breach of section 45?

As set out above, I find the landlord has breached its obligations under section 45 as it relates to: a. Cleanliness b. Smoke alarms
Again taking into account the section 109 factors, I consider that exemplary damages for these two breaches should be ordered: a. Again the landlord has a professional property management firm running the tenancy, and it is more likely than not that the agent would have been well aware of its obligations around cleanliness and smoke alarms. To the extent I find the breach intentional. b. The effect for the tenant is that she did not have the benefit of a house free from discarded items when she start of the tenancy, and needed to work with the landlord to have them removed. In relation to the smoke alarms, the premises were less safe than that they should have been. c. There is an extremely strong interest for tenants, landlords and the general public, that residential tenancies have working smoke alarms. There is a strong interest that Tenancies be clean when the tenancy commences. d. It would be just to make an order for exemplary damages.
The maximum level of exemplary damages that can be ordered for a breach of section 45, is $7,200.00. I consider an order at the one third of the maximum level would be reasonable, and therefore order exemplary damages for these breaches of $2,400.00. Failure to lodge bond
The tenant’s position is that the landlord failed to lodge the tenants bond. The tenant states the bond was paid to the landlord on 28 July 2022. The tenant says it was then lodged on 5 September 2022, being 26 working days late.
The landlord does not dispute that the bond was not lodged on time, and advised this was because of an accounting practice that they have now changed. Analysis
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. In this case there is no dispute that the bond was not lodged as required by the RTA, and therefore and an unlawful act arises.
I consider that exemplary damages should be ordered, again taking into account the section 109 factors: a. It is more likely than not that the decisions around bond lodgement were intentional. Again I note the landlord is represented by an agent, a professional property manager, who unquestionably will know their obligations around the bond lodgement. b. The impact for the tenant is that her bond was not lodged securely as it was required by law to be. The bond is the tenants money, and it should be lodged within the time required by the RTA. c. There is a very strong interest for tenants, landlords, and the public generally that the tenancy bond system work efficaciously, which requires funds to be lodged into the Bond Centre as required. d. It would be just to make an order.
The maximum level of exemplary damages that can be ordered for a breach of the landlord’s bond obligations is $1,500.00. Again I consider an order at one third of the maximum to be reasonable in this case. I have taken into consideration that the Bond has been lodged by the landlord even if late. Failure to keep records
The tenant states that the landlord has failed to keep records, which has resulted in the landlord contacting the tenant to pursue rent arrears, which the tenant disputes were owed. The tenant agrees there were rent arrears, and that she had communicated that fact with the landlord and advised that she would pay it, and states the landlord was agreeable to that. The tenant is deeply aggrieved that the landlord filed a rent arrears application with the Tribunal to pursue the rent arrears.
The landlords position is that there were arrears, and it was settled at the mediation.
I raised with the tenant that I could not see the landlord had committed an unlawful act under section 29(5). The tenant responded that I should take into account the harassment and stress caused by the landlord pursuing the rent arrears claim. Analysis
Section 29 relates to ‘receipts for rent’ and requires that: (3) On the written request of the tenant, the landlord shall also give to the tenant a written statement of the period to which any payment of rent relates.
Under subsection 5, failure to give a receipt or written statement after being requested in writing to provide one, is declared an unlawful act. However neither of those situations arises. The tenant confirmed that she did not make it any cash payments which would have required a receipt, nor has she requested in writing, that a written statement of the rent account be provided. In the absence of an unlawful act to be established, there can be no basis to order exemplary damages.
The tenant has taken significant issue with the landlord pursuing a claim for rent arrears. In this case the tenant acknowledged that she did in fact have rent arrears. The tenant has breached her obligation to the landlord under section 40(1)(a) to: pay the rent as and when it is due and payable under the tenancy agreement
The tenant says that she had notified the landlord that she would be late with rent payments, and the landlord should not have taken any further action, in particular the landlord should not have filed the application with the Tribunal. I disagree. It is not at all in common in this sort of situation, for a landlord to seek a mediation in the Tribunal as it is done in this case. When rent arrears arise, the landlord was entitled by law to pursue it, and that could include an application to the Tenancy Tribunal, whether to proceed to the Tribunal for an adjudicated order, or to work with a tenancy mediator to document how the arrears will be paid, and therefore resolved.
I cannot agree that the landlord filing an application with the Tribunal as the landlord has done in this case, would be deemed harassment of the tenant.
This claim is dismissed. Failure to provide HHS information
The tenant states that the HHS certificate provided with the tenancy agreement was undertaken in 2020, and showed there had been non- compliance with insulation. The tenant says that when this was raised with the landlord, the landlord straight away provided a new updated statement being an amended report, but did not provide photographs confirming if there had been a resolution of any breach around insulation. The tenant states she was concerned about ventilation and insulation, and she does not know if the certificate that the landlord “fabricated” was lawful. The tenant considers a new assessment should have been undertaken. The tenant says she is “concerned” the premises do not meet the HHS requirements, and she does not know if the house is compliant with the HHS.
In response the landlord states the insulation was made complaint before the tenancy in 2021, and the hearing shortly after the tenancy started in 2022, and otherwise the premises is now compliant with the HHS.
The tenant states that if the insulation was done prior, why did the landlord give the old assessment report. Analysis
Landlords are required to provide a minimum information set on their tenancy agreement as it relates to the HHS obligations for the premises. 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).
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA).
I am satisfied that the landlord has complied with the sub-subsection (a), that requirement is addressed on page 4 of the tenancy agreement.
The question then becomes whether the landlord has complied with sub- subsection (b). That provision requires compliance with certain prescribed regulations introduced under section 138B(5). The relevant regulations will be the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Part 3 of the regulations requires information to be provided in the tenancy agreement in relation to the five standards (heating, insulation, ventilation, draught stopping, and moisture ingress and drainage).
In this case the landlord has elected not to provide a statement in the tenancy agreement per se, but to provide the full assessment report. I note this approach is not usual. Conceptually providing the assessment report that included everything that the landlord needed to provide in the HHS statement would be no problem, but in this case the report does not include the necessary information. For the purpose of this order, I will look only at the insulation standard. The regulations require that the following information be provided on the HHS statement around insulation (which I am summarising): a. The date insulation was installed. b. Either the R value when installed or the thickness on last inspection. c. If the ceiling or underfloor is not insulated, why that is the case. d. Why any exemption to being insulated would apply.
In this case the report from the assessor does not provide that required information, it simply records that the insulation in the ceiling did not comply and further insulation was needed. There is no date of installation for the ceiling or floor insulation. There is no R value at installation provided for the ceiling or underfloor insulation.
In short, the report provided with the tenancy agreements did not provide the information required in the regulations, and that becomes an unlawful act under section 13A(1F).
Taking into account the section 109 factors, I consider that exemplary damages should be ordered: a. The landlord is represented by a property manager. The obligations around Tenancy agreements is well known, and the property manager should have been well aware of the information necessary with Tenancy agreements. I consider the failure to provide the necessary information to have been intentional. b. The effect for the tenant has that she was not adequately put on notice as to the minimum information set the law required in HHS statements. c. There is a strong interest for tenants particular, and the general public, that Tenancies meet the minimum standards around healthy homes, and providing a proper HHS statements is an important means to achieve that aim. d. It would be just to make an order.
The maximum level of exemplary damages for a breach of section 13A(1F)(a) is $750.00. In this case I will order one third of the maximum. I can see no features that would argue for an order at a higher level, or to excuse the breach, and order a lesser amount. I therefore order the payment of $250.00 exemplary damages. FILING FEE AND NAME SUPPRESSION, AND ADJUDICATORS OBSERVATION
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.
While the matter is finely balanced, I will accept that the tenant has been substantially successful in the proceeding, so the application for name suppression is granted.
I conclude by noting that the tenant has raised serious allegations concerning the behaviour of the landlord, such as the actions of the landlord being designed to harass her, and cause her anxiety. There is no evidence to support that. Undoubtedly some things could have been done quicker, and better with the benefit of hindsight. But there is no evidence to suggest that the tenant has been targeted by the landlord, as the tenant considers has been the case here.
By impression is that the tenant seeks not unreasonably to have safety and security in her tenancy, and to enjoy the quiet enjoyment the law requires that she receive. I am hopeful that with the dispute that is the subject of this application being determined, that the parties will be able to draw a line under the areas of concern, and move on in a more positive and constructive relationship moving forward.

Tenancy Tribunal case 4609289 — Exemplary damages

At a glance

Tenancy Tribunal case 4609289 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS FOR HEARING

TENANTS CLAIMS

COMPENSATION CLAIMS

EXEMPLARY DAMAGES CLAIMS

Should exemplary damages be awarded for breach of section 45?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS FOR HEARING

TENANTS CLAIMS

COMPENSATION CLAIMS

EXEMPLARY DAMAGES CLAIMS

Should exemplary damages be awarded for breach of section 45?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions