What was Tenancy Tribunal case 4623489 about?

The tribunal order states: Robert & Stella Goonan Family Trust must pay [The tenant/s] $4,453.87

How much money was awarded in case 4623489?

Compensation: Loss of amenity - bedr…: $2,612.57 awarded to tenant; Compensation: Loss of amenity - gara…: $377.14 awarded to tenant; Compensation: Power: $38.02 awarded to tenant; Compensation: Rent Refund: $205.70 awarded to tenant; Property Damage: $1,200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4623489?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4623489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10378035-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4623489 about?

The tribunal order states: Robert & Stella Goonan Family Trust must pay [The tenant/s] $4,453.87

How much money was awarded in case 4623489?

Compensation: Loss of amenity - bedr…: $2,612.57 awarded to tenant; Compensation: Loss of amenity - gara…: $377.14 awarded to tenant; Compensation: Power: $38.02 awarded to tenant; Compensation: Rent Refund: $205.70 awarded to tenant; Property Damage: $1,200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4623489?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4623489?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10378035-Tenancy_Tribunal_Order.pdf.

Unit/Flat 7, 49 Browns Bay Road, Browns Bay, AUCKLAND Tenancy Tribunal Case 4623489 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4623489 — net $4,453.87 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity - bedrooms	$2,612.57	Loss of amenity - bedrooms
Compensation: Loss of amenity - garage	$377.14	Loss of amenity - garage
Compensation: Power	$38.02	Power
Compensation: Rent refund	$205.70	Rent refund
Exemplary damages: Section 45	$1,200.00	Section 45
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,453.87
Bond	$1,240.00
Total payable by Landlord to Tenant	$4,453.87

Order

Robert & Stella Goonan Family Trust must pay [The tenant/s] $4,453.87 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,240.00 (5638654-001) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing. The tenant was represented by Anthony van der Steeg as he is residing overseas. The tenant had requested to attend the hearing by video, but the court facilities could not accommodate that request.
The tenancy began on 20 April 2009. The tenant gave notice to end the tenancy on 4 July 2023 but vacated the tenancy on 2 June 2023. The landlord agreed for that to be the last day of the tenancy and refunded a small amount of rent that had been paid in advance.
The tenant has applied for refund of the bond, compensation for loss of amenity, no heating, the landlord failing to maintain after the flooding and exemplary damages for breach of section 45, landlord failure to abate rent for uninhabitable space, landlord’s unlawful entry and no receipt for bond paid. The tenant also applied in respect of the landlord not providing an address for service and failing to provide test results. Tenancy agreement claims
The tenant’s claims related to the tenancy agreement, which was signed on 28 March 2009, are subject to the Limitation Act 2010 which states 1 , It is a defence to a money claim if the defendant proves that the date on which the claim is filed is at least 6 years after the date of the act or omission on which the claim is based.
The tenant filed this application on 14 August 2023 which is more than 14 years after the agreement was signed.
The tenant’s claim is dismissed. Bond
The tenant claimed that the tenancy agreement had been amended in relation to the amount of bond to be paid. He says that the amendment was made after he signed the agreement. The agreement records the bond amount as $1,860.00 but that figure is crossed out and replaced with $1,240.00.
At the hearing the landlord produced the bond lodgement form signed by the parties on 28 March 2009. The bond amount recorded there was $1,240.00. He also produced the acknowledgement of bond lodgement received from the Bond Centre again recording the bond amount of $1,240.00.
Finally, the landlord produced email correspondence between the parties on 30 April 2009. The landlord’s email confirmed that the bond was to be only two 1 Section 11(1) weeks rent ($1,240.00) but because the tenant paid three weeks rent ($1,860.00) he suggested that the extra week paid should be applied to the weekly rent. The tenant by email agreed with this.
Given the documents produced by the landlord I see no issue with the bond amount. The Bond Centre continues to hold $1,240.00 which is released to the tenant with this order. 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 and comply with any relevant enactment in relation to buildings, health and safety.
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 landlord took too long to carry out maintenance at the premises following the January flood. The landlord also failed to provide heating. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The flooding took place on 27 January 2023. The water entered the two bedrooms located on the lowest level. The water was above the skirting board on that level. The landlord did not contact a professional company (Restoration Specialists) to carry out repairs until 20 May 2023, almost four months after the flooding. Prior to that the only action taken was that the carpet was lifted and measured for new carpet.
The landlord’s evidence is that the insurance is with the Body Corporate for the block of units. He said that an assessor had attended and provided a scope of works which he sent to the builder. But no real work had taken place before the tenant discovered mould and advised the landlord on 18 May 2023.
While the landlord said that nothing could be done until approved by the insurance company it seems that he did eventually take action without the approval of the insurance company.
At the hearing the landlord accepted that the affected level was colder without the carpet but when the tenant asked about whether he would install a heat pump he said that he was not in a position to install a heat pump and the tenant would need to continue to make his own arrangements.
As advised at the hearing there is legislation which provides that there should be heating in all living rooms. The Housing Improvement Regulations 1947 set out the minimum standards that apply to premises, including: “6.Every living room shall be fitted with a fireplace and chimney or other approved form of heating.”
There is no approved form of heating in these premises. While the landlord acknowledged this, he was not aware of these Regulations. To make an award for exemplary damages the action of the landlord would need to be intentional 2 . I do not find that the landlord intentionally failed to install heating in breach of the regulations. Rather, he was awaiting the date that he was required by the Healthy Homes standards to install heating.
But the landlord’s actions in relation to the flooding was intentional and had a significant impact on the tenant and his family. In awarding exemplary damages I take account of the damage to the tenant’s belongings and the emotional impact the failure by the landlord had. I consider an award of $1,200.00 is reasonable. Failure to provide test results
The tenant sought exemplary damages for the landlord not providing test results as provided by section 48(4)(c) Residential Tenancies Act 1986.
The test results relate to the presence of contaminants as provided in section 48(3B). Contaminant is defined in section 2 of the Act as methamphetamine or any substance prescribed, or within a class of substance prescribed, as being a contaminant for the purposes of this Act.
There are no contaminants as defined by the Act in these premises. Section 48(4)(c) therefore does not apply. While it would be helpful for the landlord to provide the tenant with test results his failure to do so is not a breach. The tenant’s claim is dismissed. Loss of amenity
The premises have three bedrooms and two bathrooms. Two of the bedrooms are located on the floor affected by the flooding. These bedrooms were not 2 Section 109(3) Residential Tenancies Act 1986 able to be inhabited from 27 January 2023 until the tenancy ended on 2 June 2023 (18 weeks, 1 day).
The landlord said that he did not pay the tenant any loss of amenity because he was not asked for any. The landlord also said that the two bedrooms were not being used because it was only the tenant and his wife living in the premises.
My view is that the tenant is paying for a three-bedroom property. If he is not able to use what he pays for then he is entitled to a rent rebate for loss of amenity.
For the bedrooms I have calculated the rent rebate at $144.00 (20% of weekly rent) per week for the affected period which amounts to $2,612.57.
There is a double garage at the premises. On 29 March 2023 the tenant’s daughter moved in but as the downstairs area was not able to be used for her belongings they needed to be stored in the garage. The tenant therefore loss the use of the garage from this time until the end of the tenancy.
The landlord said that the tenant was not using the garage for what it was intended, being for storing cars. But there is nothing to say that the tenant has to use the garage for his car. The garage is a part of the premises that he was not able to utilise because of the flooding.
The garage was not able to be used by the tenant from 29 March 2023 until 2 June 2023 (9 weeks, 2 days). I have calculated the rent rebate at $40.00 per week totalling $377.14. Unlawful entry
The tenant claims in relation to the landlord intending to enter the premises on 2 July 2023.
Section 48(1) Residential Tenancies Act 1986 provides that a landlord shall not enter the premises during the currency of the tenancy agreement, except with the consent of the tenant freely given at, or immediately before, the time of entry; or in any circumstances described in subsections (2) to (3).
The landlord says that he was driving past and saw activity at the premises. He said that he did not intend to go in. Afterwards he sent a text to the tenant advising that he would never enter the property without his knowledge.
At the time the tenant was not living in the premises. I find that there has been no breach because the landlord did not enter the premises. The tenant’s claim is dismissed. Power and rent refund
At the hearing there was agreement that the landlord would pay the tenant for power usage and for an agreed rent refund.
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4623489 — net $4,453.87 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity - bedrooms	$2,612.57	Loss of amenity - bedrooms
Compensation: Loss of amenity - garage	$377.14	Loss of amenity - garage
Compensation: Power	$38.02	Power
Compensation: Rent refund	$205.70	Rent refund
Exemplary damages: Section 45	$1,200.00	Section 45
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,453.87
Bond	$1,240.00
Total payable by Landlord to Tenant	$4,453.87

Order

Robert & Stella Goonan Family Trust must pay [The tenant/s] $4,453.87 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,240.00 (5638654-001) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing. The tenant was represented by Anthony van der Steeg as he is residing overseas. The tenant had requested to attend the hearing by video, but the court facilities could not accommodate that request.
The tenancy began on 20 April 2009. The tenant gave notice to end the tenancy on 4 July 2023 but vacated the tenancy on 2 June 2023. The landlord agreed for that to be the last day of the tenancy and refunded a small amount of rent that had been paid in advance.
The tenant has applied for refund of the bond, compensation for loss of amenity, no heating, the landlord failing to maintain after the flooding and exemplary damages for breach of section 45, landlord failure to abate rent for uninhabitable space, landlord’s unlawful entry and no receipt for bond paid. The tenant also applied in respect of the landlord not providing an address for service and failing to provide test results. Tenancy agreement claims
The tenant’s claims related to the tenancy agreement, which was signed on 28 March 2009, are subject to the Limitation Act 2010 which states 1 , It is a defence to a money claim if the defendant proves that the date on which the claim is filed is at least 6 years after the date of the act or omission on which the claim is based.
The tenant filed this application on 14 August 2023 which is more than 14 years after the agreement was signed.
The tenant’s claim is dismissed. Bond
The tenant claimed that the tenancy agreement had been amended in relation to the amount of bond to be paid. He says that the amendment was made after he signed the agreement. The agreement records the bond amount as $1,860.00 but that figure is crossed out and replaced with $1,240.00.
At the hearing the landlord produced the bond lodgement form signed by the parties on 28 March 2009. The bond amount recorded there was $1,240.00. He also produced the acknowledgement of bond lodgement received from the Bond Centre again recording the bond amount of $1,240.00.
Finally, the landlord produced email correspondence between the parties on 30 April 2009. The landlord’s email confirmed that the bond was to be only two 1 Section 11(1) weeks rent ($1,240.00) but because the tenant paid three weeks rent ($1,860.00) he suggested that the extra week paid should be applied to the weekly rent. The tenant by email agreed with this.
Given the documents produced by the landlord I see no issue with the bond amount. The Bond Centre continues to hold $1,240.00 which is released to the tenant with this order. 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 and comply with any relevant enactment in relation to buildings, health and safety.
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 landlord took too long to carry out maintenance at the premises following the January flood. The landlord also failed to provide heating. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The flooding took place on 27 January 2023. The water entered the two bedrooms located on the lowest level. The water was above the skirting board on that level. The landlord did not contact a professional company (Restoration Specialists) to carry out repairs until 20 May 2023, almost four months after the flooding. Prior to that the only action taken was that the carpet was lifted and measured for new carpet.
The landlord’s evidence is that the insurance is with the Body Corporate for the block of units. He said that an assessor had attended and provided a scope of works which he sent to the builder. But no real work had taken place before the tenant discovered mould and advised the landlord on 18 May 2023.
While the landlord said that nothing could be done until approved by the insurance company it seems that he did eventually take action without the approval of the insurance company.
At the hearing the landlord accepted that the affected level was colder without the carpet but when the tenant asked about whether he would install a heat pump he said that he was not in a position to install a heat pump and the tenant would need to continue to make his own arrangements.
As advised at the hearing there is legislation which provides that there should be heating in all living rooms. The Housing Improvement Regulations 1947 set out the minimum standards that apply to premises, including: “6.Every living room shall be fitted with a fireplace and chimney or other approved form of heating.”
There is no approved form of heating in these premises. While the landlord acknowledged this, he was not aware of these Regulations. To make an award for exemplary damages the action of the landlord would need to be intentional 2 . I do not find that the landlord intentionally failed to install heating in breach of the regulations. Rather, he was awaiting the date that he was required by the Healthy Homes standards to install heating.
But the landlord’s actions in relation to the flooding was intentional and had a significant impact on the tenant and his family. In awarding exemplary damages I take account of the damage to the tenant’s belongings and the emotional impact the failure by the landlord had. I consider an award of $1,200.00 is reasonable. Failure to provide test results
The tenant sought exemplary damages for the landlord not providing test results as provided by section 48(4)(c) Residential Tenancies Act 1986.
The test results relate to the presence of contaminants as provided in section 48(3B). Contaminant is defined in section 2 of the Act as methamphetamine or any substance prescribed, or within a class of substance prescribed, as being a contaminant for the purposes of this Act.
There are no contaminants as defined by the Act in these premises. Section 48(4)(c) therefore does not apply. While it would be helpful for the landlord to provide the tenant with test results his failure to do so is not a breach. The tenant’s claim is dismissed. Loss of amenity
The premises have three bedrooms and two bathrooms. Two of the bedrooms are located on the floor affected by the flooding. These bedrooms were not 2 Section 109(3) Residential Tenancies Act 1986 able to be inhabited from 27 January 2023 until the tenancy ended on 2 June 2023 (18 weeks, 1 day).
The landlord said that he did not pay the tenant any loss of amenity because he was not asked for any. The landlord also said that the two bedrooms were not being used because it was only the tenant and his wife living in the premises.
My view is that the tenant is paying for a three-bedroom property. If he is not able to use what he pays for then he is entitled to a rent rebate for loss of amenity.
For the bedrooms I have calculated the rent rebate at $144.00 (20% of weekly rent) per week for the affected period which amounts to $2,612.57.
There is a double garage at the premises. On 29 March 2023 the tenant’s daughter moved in but as the downstairs area was not able to be used for her belongings they needed to be stored in the garage. The tenant therefore loss the use of the garage from this time until the end of the tenancy.
The landlord said that the tenant was not using the garage for what it was intended, being for storing cars. But there is nothing to say that the tenant has to use the garage for his car. The garage is a part of the premises that he was not able to utilise because of the flooding.
The garage was not able to be used by the tenant from 29 March 2023 until 2 June 2023 (9 weeks, 2 days). I have calculated the rent rebate at $40.00 per week totalling $377.14. Unlawful entry
The tenant claims in relation to the landlord intending to enter the premises on 2 July 2023.
Section 48(1) Residential Tenancies Act 1986 provides that a landlord shall not enter the premises during the currency of the tenancy agreement, except with the consent of the tenant freely given at, or immediately before, the time of entry; or in any circumstances described in subsections (2) to (3).
The landlord says that he was driving past and saw activity at the premises. He said that he did not intend to go in. Afterwards he sent a text to the tenant advising that he would never enter the property without his knowledge.
At the time the tenant was not living in the premises. I find that there has been no breach because the landlord did not enter the premises. The tenant’s claim is dismissed. Power and rent refund
At the hearing there was agreement that the landlord would pay the tenant for power usage and for an agreed rent refund.
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4623489 — Exemplary damages at Unit/Flat 7, 49 Browns Bay Road, Browns Bay, AUCKLAND

At a glance

Tenancy Tribunal case 4623489 — Exemplary damages at Unit/Flat 7, 49 Browns Bay Road, Browns Bay, AUCKLAND

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions