What was Tenancy Tribunal case 4625430 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 4625430?

Compensation: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4625430?

The dispute type was not classified.

Where can I read the official tribunal order for case 4625430?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9317433-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4625430 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 4625430?

Compensation: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4625430?

The dispute type was not classified.

Where can I read the official tribunal order for case 4625430?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9317433-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4625430 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4625430 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,500.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Claims and awards in Tenancy Tribunal application 4625430 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,500.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Order

An application for suppression has been made in this case and the Tribunal orders suppression of the tenant’s name and identifying details.
Jerome Cha must pay [The tenant/s] $1,520.44 immediately as set out in the table below. DescriptionTenant Compensation $1,500.00 Filing fee reimbursement $20.44 Total award $1,520.44 Total payable by Landlord to Tenant $1,520.44

Reasons

Both parties attended the hearing.
The tenant applied to the Tribunal for compensation and exemplary damages for the landlord: a. Giving a retaliatory notice. See section 54 Residential Tenancies Act 1986 (“RTA”). b. Failing to comply with the Healthy Homes Standards (“HHS”). See section 45(1)(bb) RTA. c. Failing to maintain the premises in a reasonable state of repair. See section 45(1)(b) RTA. d. Reimbursement of the filing fee.
In considering the tenant’s claims, the “standard of proof” is “on the balance of probabilities.” In other words, the tenant must establish with evidence that her claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.
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 testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all the evidence.
Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
By accepting the evidence of one person over that of another person, I am not saying that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely. Background
The parties agreed on the basic facts as set out below.
The tenant rented the property from 3 December 2022 under a periodic tenancy.
The rental agreement recorded: “Regard gallery as outdoor due to stormwater gets in.” I have referred to the “gallery” as the “porch” throughout this order as it more adequately describes this structure.
On 11 December 2022 the tenant complained to the landlord that a significant amount of water was coming into the porch. The landlord acknowledged the tenant’s concern and noted that this was an “outdoor” area.
On 28 March 2023 the tenant complained to the landlord of a significant leak in the roof in the chimney area of the lounge.
The landlord visited the property on 1 April 2023 and used waterproofing tape to fix “the torn edge of the roof” and cleaned out the gutter.
On 3 May 2023 the tenant complained to the landlord of further leaking in the lounge.
On 10 May 2023 the tenant complained to the landlord of further leaking in the lounge and from the ceiling in the shower room.
On 13 May 2023 the landlord visited the property and used silicone to fill in obvious gaps and holes.
On 16 May 2023 the landlord contacted five roofing companies asking them to take a look at the roof. Only two companies responded and quotes for the replacement of the roof were received on 6 June 2023 and 27 July 2023.
The landlord advised that they believe that the roof dates from 1964.
On 15 May 2023 the tenant complained to the landlord that the log burner was not working properly.
On 17 May 2023 the tenant once again complained of further leaking in the lounge and that its ceiling was slumping.
On 18 May 2023 the landlord inspected the property externally and applied further silicon to the roof.
On 23 May 2023 the landlord had their experienced handyman inspect the roof, the ceilings and the log burner. He recommended that the flat area of the roof be painted with a waterproof sealant and the landlord applied a double coat. He also advised that he believed the leaks in the shower room ceiling were from condensation and that there was nothing wrong with the log burner.
The shower room had an extractor fan that vented into the bathroom, not to the outside.
The landlord cleared guttering at the property on two occasions.
The landlord gave formal notice to the tenant of their intention to sell the property on 26 May 2023.
On leaving the property at the end of the tenancy, the tenant noticed further leaking in the kitchen.
The tenancy ended on 25 June 2023 with the landlord agreeing to a notice period of only five days.
The tenant’s evidence of the leaks was supported by photographs and video footage.
The landlord gave evidence and the email correspondence confirms that the landlord was unable to obtain the services of reputable tradespeople and he did his best to address the issues. The landlord accepted that unfortunately his efforts did not fix the problem. He advised that since the end of the tenancy, he have been living in the property at weekends and the problem was eventually fixed. He provided a written statement from the previous tenant of four and half years that there were no issues with leaking during his tenancy.
The landlord believes that the leaks were caused by someone going on the roof. He could not provide evidence or proof of this other than a photo of a footprint causing damage to the fragile roof. The landlord could not prove that this damage was caused by the tenant or a guest of hers.
In summary, the parties agree that there were significant leaks in the lounge during the last three months of the tenancy. Retaliatory Notice
Section 54(1) RTA provides: “Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 ... the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.”
The landlord’s notice was given on 26 May 2023. The tenant filed her application to the Tribunal on 7 July 2023, that is some 43 days after notice was given
As noted at the hearing, the Tribunal has no discretion to extend the 28 day period. Ingram J in the District Court has held: “In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant's control, such as documents being lost in the post or computer or internet outage or inaccessibility.”
The Tribunal does not therefore have jurisdiction to hear the tenant’s claim under this section.
The tenant’s claim must therefore be dismissed. Healthy Homes Standards
The tenant’s claims include that the landlord did not comply with the HHS. The tenant’s evidence did not disclose noncompliance or reference to any specific regulation that the landlord has breached.
In the absence of such proof, the tenant’s claims for breaches of the HHS must be dismissed. Failure to maintain - compensation
The tenant’s claims are more correctly based on the landlord’s failure to maintain the property in a reasonable state of repair under section 45(1)(b) RTA.
I am not persuaded that there was anything wrong with the operation of the log burner. The landlord disputed this assertion and advised that the fire was operating correctly. The tenant did not produce any independent evidence in support of this claim.
The tenant has proven and the landlord responsibly accepted that the tenant had to live in a property with significant leaks throughout a number of months of the tenancy.
The parties disagree on whether the water raining from the ceiling in the shower room was due to condensation or a roof leak. Neither party has persuaded me on the balance of probabilities of the source of this water.
I accept that the porch was not a room in the property and that it does not have to be watertight under any regulation or legislation.
Both items are of much less significance than the water coming into the living room.
As indicated at the hearing, the tenant has persuaded the Tribunal on the balance of probabilities that she is entitled to compensation for the conditions in which she and her daughters had to live. In considering an appropriate amount I have considered the following factors: a. The tenant advised that because of the dampness of the house, she had considerable difficulty in heating it. b. The tenant and her two daughters then slept and lived in only the open plan living/dining room and kitchen areas of the house as this area could be kept warm. c. The water ingress was significant and over a reasonably lengthy period. d. The impact was to significantly diminish and disrupt the tenant’s enjoyment of the property. The tenant gave evidence that the damp conditions caused her and her family’s health to deteriorate. e. The landlord did not ignore his obligations but neither did he fix the issue. If the landlord had ignored his obligations, this would have been an aggravating factor. f. The landlord’s willingness to forego a full period of notice to accommodate the tenant. g. The tenant was adversely affected from the end of March until the end of the tenancy – a period of 90 days or nearly three months.
It is appropriate that an amount equivalent to slightly more than 20% of the rental during that period be awarded to the tenant as compensation.
The sum of $1,500.00 is therefore awarded to the tenant in compensation. Failure to maintain – exemplary damages
Breaching the obligation to maintain the property in a reasonable state of repair 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 failed in this obligation. I find he has 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.
Once it has been determined that an unlawful act has been committed, before making an order of exemplary damages, the Tribunal must first consider the intent of the person against whom the order is sought.
I am not satisfied that the landlord acted intentionally in breaching this obligation. Indeed, the evidence accepted by both parties is that the landlord did his best and promptly but, unfortunately, did not succeed in repairing the roof. It may well require replacement.
The tenant’s application for exemplary damages is dismissed. Compensation for stress and emotional harm
It is very rare for compensation for stress, distress or emotional harm to be granted because it is difficult to objectively quantify such harm in monetary terms and the extent of intangible harm is difficult to prove. If measured, any award is open to criticism on the basis that the outcome is unpredictable, or contains a punitive element not permitted in calculating loss for breach of contract.
Apart from these practical issues, there is a more fundamental policy concern against such awards. Contracts often give rise to stress, particularly where personal, social or family interests are affected. This is a risk borne by those who transact, and, if recognised, would add a layer of uncertainty and subjectivity to every claim. Claims for distress on its own are therefore generally unsuccessful.
Higher courts have demonstrated a reluctance to award any amount for stress unless the core purpose of the contract in question was to relieve it.
The Court of Appeal has stated regarding the law relating to general damages for distress: "The law may properly be described as uncertain in this area, for example, we refer to the majority and minority judgments in Bloxham v Robinson, in which competing views are expressed by McKay and Temm JJ, and Thomas J." (see Ma v Tay [2014] NZCA 608.)
It is appropriate for the Tribunal to take a cautious approach when the state of the law as to general damages for distress for breach of contract has been described by the Court of Appeal as uncertain. The Tribunal is also bound by the decision in Bloxham v Robinson. Filing fee
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4625430 — Tenancy dispute

At a glance

Tenancy Tribunal case 4625430 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions