What was Tenancy Tribunal case 4625752 about?

The tribunal order states: The parties’ names and identifying details including the tenancy address must not

How much money was awarded in case 4625752?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4625752?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4625752?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9885371-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4625752 about?

The tribunal order states: The parties’ names and identifying details including the tenancy address must not

How much money was awarded in case 4625752?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4625752?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4625752?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9885371-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4625752 — Exemplary damages

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New Zealand Tenancy Tribunal Case 4625752 — Exemplary damages | TenantCheck

Order

The parties’ names and identifying details including the tenancy address must not be published.
[The landlords] must pay [the tenant] $8,396.66 immediately.

Reasons

The tenant attended in person. 1
The landlords attended in person and were represent by counsel, Stephen Gulley of Turner Hopkins.
The tenant claims that the landlords did not comply with the Healthy Homes Standards (HHS) and that the landlords’ notice terminating the tenancy was invalid. She seeks compensation and exemplary damages. Background
The tenancy began on 21 February 2022. The tenancy was initially fixed for a one-year term and then became a periodic tenancy at the end of the fixed term. It ended on 11 August 2023 after the landlords gave the tenancy notice because they wanted to use the house themselves.
The premises had originally belonged to the landlord’s mother. The landlords had lived in the home for a few years but have been living in Taupo managing a motel they lease since December 2019.
The tenant was intending to remain in the premises for at least five years for her sons’ schooling at nearby One Tree Hill College. The landlords knew the tenant wanted to remain in the premises long-term and were agreeable to that.
The tenancy agreement recorded that there was an attached statement setting out the premises’ compliance (or otherwise) with the HHS. However, no such statement was attached.
The agreement also contained a statement that the landlords “agree to remedy any areas identified within the Healthy Homes Statement should the property not meet the current standards and regulations within 90 days of the tenancy start date”. However, later investigations showed that the premises did not comply with the ventilation, draught stopping, insulation, and smoke alarms standards. Therefore, the landlords were in plain breach of their HHS compliance warranty.
During their first winter at the premises, the tenant and her sons found the premises very cold and damp and susceptible to mould. The tenant suspected the home did not meet the HHS as the landlords had assured. On 12 August 2022 she emailed the landlords: 1 This is a reserved decision. I heard the matter on 15 January 2024. The decision was first issued on 22 January 2024 but was reissued on 26 January 2024 to correct a calculation error. The Tribunal originally recorded the landlords’ voluntary rent reduction at $2,928.57. The parties agree that it was $700.00. [I]t became really apparent that this house Isn’t up to Healthy Home Standards when winter hit... Once we had cleaned that [the mould in the bathroom], we have had to leave the window ajar all winter seeing as there is no extractor fan...Even still, the mould is growing back again - I’ve put some pictures. There is also mould frequently growing on my clothes in the master bedroom wardrobe, my shoes that are stored in a tray under the bed and around the windows and window seat. Some other things we've noticed are: •[Various gaps and holes] I’ve also been to Mitre10 and got a bunch of draught stopping stuff for the front door and side doors. However even with that in place it’s been really tricky to heat the place and keep warm.

Do you know if the insulation in the ceiling and floor is up to scratch?

In response, the landlords installed a shower dome and made some minor repairs and improvements, but the landlords still did not ensure the premises complied with the HHS. The tenant eventually commissioned a HHS report the following winter on about 12 June 2023. The HHS report completed on 15 June 2023 found that the premises was in breach of the insulation, ventilation, draught stopping, and smoke alarm standards.
The tenant emailed the report to the landlords at 12:07PM 15 June 2023, saying: There is some work that needs to be done urgently to be brought up to Healthy Homes Standard, which was by law supposed to have been completed within 120 days of my tenancy agreement last year. Can you let me know urgently when you will be able to take care of these things please? •Ceiling Insulation • Kitchen extraction fan •Bathroom extraction fan •Draught stopping Perhaps we could consider a rent reduction in the meanwhile as it is costing me an arm and a leg to attempt to keep the place warm and dry in the meanwhile.
At 2:54PM, the landlords responded, giving the tenant notice, stating: As I told you on Friday I had to go to Hospital, they told me that I will need intensive hospital treatments in Auckland hospital, saying that we have to give you notice , as we need to move back into house, The following work required from the inspection will go ahead. We are waiting on quotes : Both Extractor Fans ( Kitchen ,bathroom ) Involving concrete drilling ,exterior scaffolding and electrical wiring. Ceiling insulation as existing batts need thin layer top up to bring it to new standard. Lewis will attend to Draught issues.
The standard form 63-day notice the landlords sent by email that day ticked the box, “The owner of the premises requires the premises within 90 days after the termination date...as the principal place of residence (for at least 90 days) for the owner or a member of the owner’s family.”
The notice incorrectly gave the end-date of the tenancy as being 17 August 2023, when it should have been 18 August 2023.
From 23 June 2023, the tenant’s weekly rent was reduced by $100.00, a total amount of $2928.57. The tenant submits the reduction ought to have been $300.00 per week.
The landlords had the insulation topped-up on 24 June 2023. The tenant reported by text, the next day:
The bulk of the other compliance work was completed by 19 July 2023.
The landlords accept the premises did not meet the HHS as they should have. However, they say the non-compliance was not deliberate. They disagree with the amounts the tenant claims for compensation. They deny that they ended the tenancy for retaliatory reasons and submit that the one-day error in calculating the end date of the tenant should have no ramifications.
The issues for determination are: a. What amount of compensation should be ordered for the breach of the

HSS?

b. Should exemplary damages be awarded for the HHS breaches? c. Was the landlords’ notice retaliatory or invalid? d. If so, what remedies should be ordered?

What amount of compensation should be ordered for the HHS breaches?

The tenant says the house was “incredibly cold and damp” in winter. The substandard insulation contributed to that. Because the bathroom had no extractor fan, she had to leave the bathroom windows open all the time to ventilate it. The wood burner’s chimney allowed warmth to escape. The moisture and coldness was exacerbated by the draughts,
The substandard ventilation meant there was more mould and damp than there should have been, with implications for the tenant and her family’s house and extra time needed for cleaning mould.
The tenant undoubtedly spent a lot more on power in wintertime than she would have if the landlords had complied with the HHS. A small representative sample of invoices indicates that in the summertime, her power bills appear to have been about $150.00 per month, but in wintertime they were closer to $450.00.
The tenant says that the house while cold in winter, was extremely hot in summer, which she attributes partly to the substandard insulation. As a result, she ran the heat pump much of the time in summer also. Nor was there full respite from the mould and damp in the house during summertime.
The landlords submit that compensation of no more than 10 to 15 percent of the weekly rent ($75.00 to $112.50) be considered for the winter months, and there should be no compensation for the summer months.
Mr Gulley emphasises that the landlords are not neglectful. They carried out regular maintenance and additional work as required. The landlords helped the tenant wire-in power to a cabin she acquired. The landlords promptly addressed the HHS deficits soon after the tenant forwarded the HHS report.
Upon reflection, I have determined that the tenant’s loss of amenity is to be calculated at 20 per cent in the winter months ($150.00 per week) and 10 per cent in the summer months ($75.00).
The starting date for calculating compensation is 90 days after the tenancy began, the date the landlords stated in the tenancy agreement (under the HHS the landlords did not have to comply until 120 days after the tenancy began which is 20 June 2022). I have “set winter” as being from 1 May to 31 October. The insulation was brought up to standard on 24 June 2023. From 25 June to when the other works were done on 19 July 2023, I assess the loss of amenity at 10 per cent also. After 19 July 2023 to the end of the tenancy, I set the loss of amenity at $15.00 per week because I accept the tenant’s evidence there were still some minor deficiencies in the draught stopping work.
Accordingly, the Tribunal orders the landlords to pay the tenant $6,927.87 for loss of amenity and additional power costs.

Should the Tribunal order exemplary damages for the HHS breaches?

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. 2
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 3
The landlords say they did not know that the home breached the HHS, so the breaches cannot be subject to an exemplary damages order.
The landlords signed a tenancy agreement that refers to the landlords HHS obligations in detail and states the landlords will ensure compliance within 90 days. The tenant brought some of the HHS breaches to the landlords’ attention early in the tenancy in writing. One of the landlords previously worked as a builder so has knowledge of building requirements, even if he has not worked as a builder after the HHS came into effect. The landlords operate a motel business so they should be knowledgeable about what makes a residential space habitable.
The tenant submits the evidence shows the landlords “chose to turn a blind eye” to their HHS obligations. They wanted to only do the bare minimum to the premises that the tenant legitimately insisted on.
It is possible that the landlords were ignorant of the HHS rules. However, I find it more probable that they knew the rules but did not implement them. I find therefore that the landlords’ breaches were intentional.
I am satisfied it would be just to order exemplary damages, having regard to the landlords’ intent, the effect of the unlawful act, the interests of the tenant, and the public interest.
The tenant says the bathroom and the bedrooms were particularly prone to mould and damp. The mould had to regularly be cleaned off. The house was freezing in winter. She and her sons were frequently unwell during winter, which the house conditions contributed to.
I accept Mr Gulley’s submission that the landlords were “unsophisticated”. The landlords had lived in the house themselves and found it satisfactory. They honestly thought the premises were up to a good liveable standard. Their previous tenant was very content with the house as it was.
I set exemplary damages at $1,000.00 in all the circumstances.
I also order the cost of the HHS report, which the landlords consent to. 2 Residential Tenancies Act 1986 (RTA), s 109(3) 3 RTA, s 45 (1)(A) and Schedule 1A.
The tenant seeks her costs to prepare for and attend the hearing such as transport costs and time off work. The tenant is not counsel. The Tribunal is meant to deal with lay litigants in general, not counsel. If costs orders were routinely made for lay parties’ litigation costs, the efficacy and accessibility of the Tribunal would be undermined and whole new and unhelpful layers of complexity would be added. It is not appropriate to order these costs. Was the landlords’ notice retaliatory or invalid?
The tenant was shocked by the landlord’s sudden notice virtually immediately after she provided the landlords with a HHS report confirming breaches. She doubts the notice’s validity. She had been given no warning of it and did not see it coming. Legal principles
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. 4
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord: s 54(1) of the RTA.
To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate.
The thing relied on does not have to be the only thing; it only needs to be a contributing factor.
The tenant in this case submits a relevant “thing” was the tenant exercising her right to ask the landlords to correct the premises non-compliance with the HHS.
A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 5 4 RTA, s 54(2), (3) and Schedule 1A. 5 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.” The facts
The landlords’ timing of the notice could hardly be condemning. It was given hours after the tenant sent them the HHS report and there had been no inkling that the landlords might give notice.
One of the landlords suffers from serious health issues that require regular treatment and investigations. Her conditions include throat cancer, lupus (an autoimmune disease), myasthenia gravis, and bowel problems.
The landlords assured the Tribunal that the giving of the notice was not spurred by the tenant’s email.
The tenant played a recording of her conversation with the landlord the next day Saturday, 27 June 2023. The landlord says that: I’m going to be going in and out of hospital...I’ve gotta have treatment done. There’s a whole lot of things. I have tow major problems with me. And so, I found it all out on Friday.
The tenant highlights the landlord’s unapologetic tone and submits the recording cements the strong inference that the landlord’s motives for giving notice including retaliatory ones. Discussion
The landlord’s evidence that she was not influenced by the tenant’s request for HHS work is consistent with the contemporary documents and the transcript of the telephone call. There is no “gotcha” type evidence that belies what the landlord’s claim.
It is feasible that the landlords were already minded to giving the tenant notice for the reasons they cite, and the tenant’s email prompted them to act on that plan at that time, not because they were annoyed but because they were coincidentally emailing the tenant about the HHS issues anyway.
The tenant was understandably sceptical of the ingenuousness of the landlord’s notice, but (by a slight margin) I am not persuaded on the balance of probabilities that the landlords’ notice was partly motivated by the tenant’s email about the HHS breaches.
The notice was technically invalid by undercalculating the notice period by one day. The breach was technical, and I am not minded finding any remedies should flow from the breach. There is also a more substantial defect in the notice, however.
To be valid under s 51(1)(a) of the RTA, the landlord has to need the premises “as the principal place of residence”. The landlords spend most their time in Taupo where they run their motel business. The landlords estimate the unwell landlord has spent 30 to 50 per cent of their time recently living at the premises. It was not shown that the landlord was going to be living mainly in Auckland for at least 90 days. Moreover, the landlords stays in Auckland were oriented towards facilitating the landlord’s treatments and investigations, the landlords work and the true centre of gravity for their lives, in general, was in Taupo.
I consider it probable that the landlords never intended the premises to be their principal place of residence. Rather, they intended it to be a secondary place of residence for the purposes of health care. Both landlords’ principal place of residence would remain Taupo.
Mr Gulley submits the landlords always intended that the landlord’s brother would also be living at the premises and the notice was given on that basis and the landlord’s sister, Denise [name suppressed], gave evidence on this point. I do not find this proven. The emails and the telephone transcript do not mention the landlord’s brother and the landlords did not repeat that claim with any cogency in their comments before the Tribunal. I consider it was the landlord’s health concerns that were the reason for the notice. The landlord’s brother moved into the premises incidentally to the landlord taking possession of the premises. Conclusion
I do not find the notice was retaliatory. I do however find the notice was invalid because the landlords only intended to use the premises as a secondary residence, not their principal residence.

What remedies should be ordered?

Under s 60AA of the RTA landlord commits an unlawful act if they give or purport to give a notice to terminate knowing that they are not entitled to give the notice.
I am not satisfied that the landlords knew that they were not entitled to give the notice they gave. The wording of s 51(1)(a) is ambiguous. The landlord had received adverse medical advice and was upset and stressed. It is likely that she did not appreciate the necessary grounds were not made out if the premises would not be the principal place of residence.
Therefore, exemplary damages are not available for the breach.
I turn to consider compensatory damages.
Although the notice was invalid, the landlord did have valid grounds available to end the tenancy because her brother needed somewhere to live and moved into the premises. If the landlord had been more careful about selecting the correct grounds for ending the tenancy, a valid termination notice based on the landlord’s brother’s wanting the premises as a principal place of residence would probably have been issued within a matter of days of the notice the landlords gave.
The tenant claims for moving costs, additional rent, and additional transport costs. The tenant was bound to have incurred the same costs sooner rather than later anyway. I do not find these losses reasonably proximate to the breach.
I do consider that general damages can be considered, however. The suddenness of and the brusque way the invalid notice was given caused the tenant considerable distress. The tenant was entitled to doubt the authenticity of the landlords’ stated reason for the notice given its timing. The tenant says that receiving the notice “made me feel sick to my stomach”. The landlords were not in the least apologetic. She was disappointed by what she felt was the landlord’s accusatory tone when she telephoned her the next day to discuss the situation. She was convinced the landlords did not want to meet their obligations as landlords and felt most sorely treated. The tenant was emotionally invested in the premises and was committed to staying there for several years to ensure to provide a stable home for her family close to her sons’ school. All that was unceremoniously cancelled by a few keystrokes. General damages - principles
The Tribunal in Palmer v Housing New Zealand (No 2) 6 held that when assessing the quantum of general damages, the Tribunal must consider the following factors: a. The nature of the breach; b. The duration of the breach; and c. The effect of the breach on the party.
Recently, the Tribunal’s power to award compensation was increased from $50,000.00 to $100,000.00 by s 50 of the Residential Tenancies Amendment Act 2020, which means the Tribunal’s orders for general damages can range as high as $100,000.00 if such harm is proven. 6 Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993.
The Tribunal’s general damages awards have historically been low. In Birch v Otautahi Community Housing R E Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative”. 7 In the case before His Honour, the tenant had returned to her unit and found contractors had entered without her permission. Contractors had done asbestos repair work in the tenant’s unit and the landlord had mistakenly failed to give the tenant appropriate notice of the entry.
His Honour found the Tribunal’s award of $200.00 of emotional harm damages for the unlawful entry was “close to being derisory”. He substituted an award of in the sum of $2,000.00 finding “it was a significant intrusion on [the tenant’s] rights”.
In a recent case in the District Court, Judge David J Clark found in the assessment of general damages: 8 [69] Ultimately any assessment of damages will be based on all the circumstances of the case including (but not intending to make a prescriptive list) the intentions of the landlord; whether there was a lawful purpose which sat behind the conduct; the conduct of the tenant; the effect on the tenant; whether the conduct was ongoing, whether there were any aggravating or mitigating factors from both the landlord or tenant.
In this case, there was a lawful purpose that sat behind the conduct. The breach was based on a mistake of the law and the landlords’ apparent haste in stressful circumstances. The tenant’s conduct was entirely proper. She had lived in the premises for over a year while they were not up to HHS. She politely told the landlords of the HHS report results. The breach in its nature, was of short duration but was emphatic by extinguishing he tenancy. The landlords did genuinely want to use the house themselves. The notice was not a ruse to get rid of the tenant.
I accept the tenant’s evidence of having suffered emotional harm. The tenant suffered annoyance, disappointment, and worry. Conclusion
I find an award of $1,000.00 to compensate her for that harm is appropriate. 7 Birch v Otautahi Community Housing [2020] NZDC 17667. 8 Sun v Kang [2023] NZDC 24786 Filing fee
Because the tenant has substantially succeeded in her claim, the Tribunal orders the landlords to reimburse her for the filing fee. Non-publication
The parties seek non-publication of their identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. 9
The tenant substantially succeeded in the proceedings. Publication is not in the public interest or justified by the tenant’s conduct or any other circumstances.
The tenant’s identifying details must not be published.
The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that the name or any identifying particulars of any party not be published.
One of the landlords has serious health issues that could be exacerbated by the stress of publication. The landlords have remedied the house’s non- compliance and are not currently renting the premises out. The decision can be published with the parties anonymised to lessen the potential for offending the principle of open justice.
It is appropriate to order non-publication of the landlords’ details also.

Order

The parties’ names and identifying details including the tenancy address must not be published.
[The landlords] must pay [the tenant] $8,396.66 immediately.

Reasons

The tenant attended in person. 1
The landlords attended in person and were represent by counsel, Stephen Gulley of Turner Hopkins.
The tenant claims that the landlords did not comply with the Healthy Homes Standards (HHS) and that the landlords’ notice terminating the tenancy was invalid. She seeks compensation and exemplary damages. Background
The tenancy began on 21 February 2022. The tenancy was initially fixed for a one-year term and then became a periodic tenancy at the end of the fixed term. It ended on 11 August 2023 after the landlords gave the tenancy notice because they wanted to use the house themselves.
The premises had originally belonged to the landlord’s mother. The landlords had lived in the home for a few years but have been living in Taupo managing a motel they lease since December 2019.
The tenant was intending to remain in the premises for at least five years for her sons’ schooling at nearby One Tree Hill College. The landlords knew the tenant wanted to remain in the premises long-term and were agreeable to that.
The tenancy agreement recorded that there was an attached statement setting out the premises’ compliance (or otherwise) with the HHS. However, no such statement was attached.
The agreement also contained a statement that the landlords “agree to remedy any areas identified within the Healthy Homes Statement should the property not meet the current standards and regulations within 90 days of the tenancy start date”. However, later investigations showed that the premises did not comply with the ventilation, draught stopping, insulation, and smoke alarms standards. Therefore, the landlords were in plain breach of their HHS compliance warranty.
During their first winter at the premises, the tenant and her sons found the premises very cold and damp and susceptible to mould. The tenant suspected the home did not meet the HHS as the landlords had assured. On 12 August 2022 she emailed the landlords: 1 This is a reserved decision. I heard the matter on 15 January 2024. The decision was first issued on 22 January 2024 but was reissued on 26 January 2024 to correct a calculation error. The Tribunal originally recorded the landlords’ voluntary rent reduction at $2,928.57. The parties agree that it was $700.00. [I]t became really apparent that this house Isn’t up to Healthy Home Standards when winter hit... Once we had cleaned that [the mould in the bathroom], we have had to leave the window ajar all winter seeing as there is no extractor fan...Even still, the mould is growing back again - I’ve put some pictures. There is also mould frequently growing on my clothes in the master bedroom wardrobe, my shoes that are stored in a tray under the bed and around the windows and window seat. Some other things we've noticed are: •[Various gaps and holes] I’ve also been to Mitre10 and got a bunch of draught stopping stuff for the front door and side doors. However even with that in place it’s been really tricky to heat the place and keep warm.

Do you know if the insulation in the ceiling and floor is up to scratch?

In response, the landlords installed a shower dome and made some minor repairs and improvements, but the landlords still did not ensure the premises complied with the HHS. The tenant eventually commissioned a HHS report the following winter on about 12 June 2023. The HHS report completed on 15 June 2023 found that the premises was in breach of the insulation, ventilation, draught stopping, and smoke alarm standards.
The tenant emailed the report to the landlords at 12:07PM 15 June 2023, saying: There is some work that needs to be done urgently to be brought up to Healthy Homes Standard, which was by law supposed to have been completed within 120 days of my tenancy agreement last year. Can you let me know urgently when you will be able to take care of these things please? •Ceiling Insulation • Kitchen extraction fan •Bathroom extraction fan •Draught stopping Perhaps we could consider a rent reduction in the meanwhile as it is costing me an arm and a leg to attempt to keep the place warm and dry in the meanwhile.
At 2:54PM, the landlords responded, giving the tenant notice, stating: As I told you on Friday I had to go to Hospital, they told me that I will need intensive hospital treatments in Auckland hospital, saying that we have to give you notice , as we need to move back into house, The following work required from the inspection will go ahead. We are waiting on quotes : Both Extractor Fans ( Kitchen ,bathroom ) Involving concrete drilling ,exterior scaffolding and electrical wiring. Ceiling insulation as existing batts need thin layer top up to bring it to new standard. Lewis will attend to Draught issues.
The standard form 63-day notice the landlords sent by email that day ticked the box, “The owner of the premises requires the premises within 90 days after the termination date...as the principal place of residence (for at least 90 days) for the owner or a member of the owner’s family.”
The notice incorrectly gave the end-date of the tenancy as being 17 August 2023, when it should have been 18 August 2023.
From 23 June 2023, the tenant’s weekly rent was reduced by $100.00, a total amount of $2928.57. The tenant submits the reduction ought to have been $300.00 per week.
The landlords had the insulation topped-up on 24 June 2023. The tenant reported by text, the next day:
The bulk of the other compliance work was completed by 19 July 2023.
The landlords accept the premises did not meet the HHS as they should have. However, they say the non-compliance was not deliberate. They disagree with the amounts the tenant claims for compensation. They deny that they ended the tenancy for retaliatory reasons and submit that the one-day error in calculating the end date of the tenant should have no ramifications.
The issues for determination are: a. What amount of compensation should be ordered for the breach of the

HSS?

b. Should exemplary damages be awarded for the HHS breaches? c. Was the landlords’ notice retaliatory or invalid? d. If so, what remedies should be ordered?

What amount of compensation should be ordered for the HHS breaches?

The tenant says the house was “incredibly cold and damp” in winter. The substandard insulation contributed to that. Because the bathroom had no extractor fan, she had to leave the bathroom windows open all the time to ventilate it. The wood burner’s chimney allowed warmth to escape. The moisture and coldness was exacerbated by the draughts,
The substandard ventilation meant there was more mould and damp than there should have been, with implications for the tenant and her family’s house and extra time needed for cleaning mould.
The tenant undoubtedly spent a lot more on power in wintertime than she would have if the landlords had complied with the HHS. A small representative sample of invoices indicates that in the summertime, her power bills appear to have been about $150.00 per month, but in wintertime they were closer to $450.00.
The tenant says that the house while cold in winter, was extremely hot in summer, which she attributes partly to the substandard insulation. As a result, she ran the heat pump much of the time in summer also. Nor was there full respite from the mould and damp in the house during summertime.
The landlords submit that compensation of no more than 10 to 15 percent of the weekly rent ($75.00 to $112.50) be considered for the winter months, and there should be no compensation for the summer months.
Mr Gulley emphasises that the landlords are not neglectful. They carried out regular maintenance and additional work as required. The landlords helped the tenant wire-in power to a cabin she acquired. The landlords promptly addressed the HHS deficits soon after the tenant forwarded the HHS report.
Upon reflection, I have determined that the tenant’s loss of amenity is to be calculated at 20 per cent in the winter months ($150.00 per week) and 10 per cent in the summer months ($75.00).
The starting date for calculating compensation is 90 days after the tenancy began, the date the landlords stated in the tenancy agreement (under the HHS the landlords did not have to comply until 120 days after the tenancy began which is 20 June 2022). I have “set winter” as being from 1 May to 31 October. The insulation was brought up to standard on 24 June 2023. From 25 June to when the other works were done on 19 July 2023, I assess the loss of amenity at 10 per cent also. After 19 July 2023 to the end of the tenancy, I set the loss of amenity at $15.00 per week because I accept the tenant’s evidence there were still some minor deficiencies in the draught stopping work.
Accordingly, the Tribunal orders the landlords to pay the tenant $6,927.87 for loss of amenity and additional power costs.

Should the Tribunal order exemplary damages for the HHS breaches?

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. 2
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 3
The landlords say they did not know that the home breached the HHS, so the breaches cannot be subject to an exemplary damages order.
The landlords signed a tenancy agreement that refers to the landlords HHS obligations in detail and states the landlords will ensure compliance within 90 days. The tenant brought some of the HHS breaches to the landlords’ attention early in the tenancy in writing. One of the landlords previously worked as a builder so has knowledge of building requirements, even if he has not worked as a builder after the HHS came into effect. The landlords operate a motel business so they should be knowledgeable about what makes a residential space habitable.
The tenant submits the evidence shows the landlords “chose to turn a blind eye” to their HHS obligations. They wanted to only do the bare minimum to the premises that the tenant legitimately insisted on.
It is possible that the landlords were ignorant of the HHS rules. However, I find it more probable that they knew the rules but did not implement them. I find therefore that the landlords’ breaches were intentional.
I am satisfied it would be just to order exemplary damages, having regard to the landlords’ intent, the effect of the unlawful act, the interests of the tenant, and the public interest.
The tenant says the bathroom and the bedrooms were particularly prone to mould and damp. The mould had to regularly be cleaned off. The house was freezing in winter. She and her sons were frequently unwell during winter, which the house conditions contributed to.
I accept Mr Gulley’s submission that the landlords were “unsophisticated”. The landlords had lived in the house themselves and found it satisfactory. They honestly thought the premises were up to a good liveable standard. Their previous tenant was very content with the house as it was.
I set exemplary damages at $1,000.00 in all the circumstances.
I also order the cost of the HHS report, which the landlords consent to. 2 Residential Tenancies Act 1986 (RTA), s 109(3) 3 RTA, s 45 (1)(A) and Schedule 1A.
The tenant seeks her costs to prepare for and attend the hearing such as transport costs and time off work. The tenant is not counsel. The Tribunal is meant to deal with lay litigants in general, not counsel. If costs orders were routinely made for lay parties’ litigation costs, the efficacy and accessibility of the Tribunal would be undermined and whole new and unhelpful layers of complexity would be added. It is not appropriate to order these costs. Was the landlords’ notice retaliatory or invalid?
The tenant was shocked by the landlord’s sudden notice virtually immediately after she provided the landlords with a HHS report confirming breaches. She doubts the notice’s validity. She had been given no warning of it and did not see it coming. Legal principles
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. 4
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord: s 54(1) of the RTA.
To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate.
The thing relied on does not have to be the only thing; it only needs to be a contributing factor.
The tenant in this case submits a relevant “thing” was the tenant exercising her right to ask the landlords to correct the premises non-compliance with the HHS.
A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 5 4 RTA, s 54(2), (3) and Schedule 1A. 5 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.” The facts
The landlords’ timing of the notice could hardly be condemning. It was given hours after the tenant sent them the HHS report and there had been no inkling that the landlords might give notice.
One of the landlords suffers from serious health issues that require regular treatment and investigations. Her conditions include throat cancer, lupus (an autoimmune disease), myasthenia gravis, and bowel problems.
The landlords assured the Tribunal that the giving of the notice was not spurred by the tenant’s email.
The tenant played a recording of her conversation with the landlord the next day Saturday, 27 June 2023. The landlord says that: I’m going to be going in and out of hospital...I’ve gotta have treatment done. There’s a whole lot of things. I have tow major problems with me. And so, I found it all out on Friday.
The tenant highlights the landlord’s unapologetic tone and submits the recording cements the strong inference that the landlord’s motives for giving notice including retaliatory ones. Discussion
The landlord’s evidence that she was not influenced by the tenant’s request for HHS work is consistent with the contemporary documents and the transcript of the telephone call. There is no “gotcha” type evidence that belies what the landlord’s claim.
It is feasible that the landlords were already minded to giving the tenant notice for the reasons they cite, and the tenant’s email prompted them to act on that plan at that time, not because they were annoyed but because they were coincidentally emailing the tenant about the HHS issues anyway.
The tenant was understandably sceptical of the ingenuousness of the landlord’s notice, but (by a slight margin) I am not persuaded on the balance of probabilities that the landlords’ notice was partly motivated by the tenant’s email about the HHS breaches.
The notice was technically invalid by undercalculating the notice period by one day. The breach was technical, and I am not minded finding any remedies should flow from the breach. There is also a more substantial defect in the notice, however.
To be valid under s 51(1)(a) of the RTA, the landlord has to need the premises “as the principal place of residence”. The landlords spend most their time in Taupo where they run their motel business. The landlords estimate the unwell landlord has spent 30 to 50 per cent of their time recently living at the premises. It was not shown that the landlord was going to be living mainly in Auckland for at least 90 days. Moreover, the landlords stays in Auckland were oriented towards facilitating the landlord’s treatments and investigations, the landlords work and the true centre of gravity for their lives, in general, was in Taupo.
I consider it probable that the landlords never intended the premises to be their principal place of residence. Rather, they intended it to be a secondary place of residence for the purposes of health care. Both landlords’ principal place of residence would remain Taupo.
Mr Gulley submits the landlords always intended that the landlord’s brother would also be living at the premises and the notice was given on that basis and the landlord’s sister, Denise [name suppressed], gave evidence on this point. I do not find this proven. The emails and the telephone transcript do not mention the landlord’s brother and the landlords did not repeat that claim with any cogency in their comments before the Tribunal. I consider it was the landlord’s health concerns that were the reason for the notice. The landlord’s brother moved into the premises incidentally to the landlord taking possession of the premises. Conclusion
I do not find the notice was retaliatory. I do however find the notice was invalid because the landlords only intended to use the premises as a secondary residence, not their principal residence.

What remedies should be ordered?

Under s 60AA of the RTA landlord commits an unlawful act if they give or purport to give a notice to terminate knowing that they are not entitled to give the notice.
I am not satisfied that the landlords knew that they were not entitled to give the notice they gave. The wording of s 51(1)(a) is ambiguous. The landlord had received adverse medical advice and was upset and stressed. It is likely that she did not appreciate the necessary grounds were not made out if the premises would not be the principal place of residence.
Therefore, exemplary damages are not available for the breach.
I turn to consider compensatory damages.
Although the notice was invalid, the landlord did have valid grounds available to end the tenancy because her brother needed somewhere to live and moved into the premises. If the landlord had been more careful about selecting the correct grounds for ending the tenancy, a valid termination notice based on the landlord’s brother’s wanting the premises as a principal place of residence would probably have been issued within a matter of days of the notice the landlords gave.
The tenant claims for moving costs, additional rent, and additional transport costs. The tenant was bound to have incurred the same costs sooner rather than later anyway. I do not find these losses reasonably proximate to the breach.
I do consider that general damages can be considered, however. The suddenness of and the brusque way the invalid notice was given caused the tenant considerable distress. The tenant was entitled to doubt the authenticity of the landlords’ stated reason for the notice given its timing. The tenant says that receiving the notice “made me feel sick to my stomach”. The landlords were not in the least apologetic. She was disappointed by what she felt was the landlord’s accusatory tone when she telephoned her the next day to discuss the situation. She was convinced the landlords did not want to meet their obligations as landlords and felt most sorely treated. The tenant was emotionally invested in the premises and was committed to staying there for several years to ensure to provide a stable home for her family close to her sons’ school. All that was unceremoniously cancelled by a few keystrokes. General damages - principles
The Tribunal in Palmer v Housing New Zealand (No 2) 6 held that when assessing the quantum of general damages, the Tribunal must consider the following factors: a. The nature of the breach; b. The duration of the breach; and c. The effect of the breach on the party.
Recently, the Tribunal’s power to award compensation was increased from $50,000.00 to $100,000.00 by s 50 of the Residential Tenancies Amendment Act 2020, which means the Tribunal’s orders for general damages can range as high as $100,000.00 if such harm is proven. 6 Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993.
The Tribunal’s general damages awards have historically been low. In Birch v Otautahi Community Housing R E Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative”. 7 In the case before His Honour, the tenant had returned to her unit and found contractors had entered without her permission. Contractors had done asbestos repair work in the tenant’s unit and the landlord had mistakenly failed to give the tenant appropriate notice of the entry.
His Honour found the Tribunal’s award of $200.00 of emotional harm damages for the unlawful entry was “close to being derisory”. He substituted an award of in the sum of $2,000.00 finding “it was a significant intrusion on [the tenant’s] rights”.
In a recent case in the District Court, Judge David J Clark found in the assessment of general damages: 8 [69] Ultimately any assessment of damages will be based on all the circumstances of the case including (but not intending to make a prescriptive list) the intentions of the landlord; whether there was a lawful purpose which sat behind the conduct; the conduct of the tenant; the effect on the tenant; whether the conduct was ongoing, whether there were any aggravating or mitigating factors from both the landlord or tenant.
In this case, there was a lawful purpose that sat behind the conduct. The breach was based on a mistake of the law and the landlords’ apparent haste in stressful circumstances. The tenant’s conduct was entirely proper. She had lived in the premises for over a year while they were not up to HHS. She politely told the landlords of the HHS report results. The breach in its nature, was of short duration but was emphatic by extinguishing he tenancy. The landlords did genuinely want to use the house themselves. The notice was not a ruse to get rid of the tenant.
I accept the tenant’s evidence of having suffered emotional harm. The tenant suffered annoyance, disappointment, and worry. Conclusion
I find an award of $1,000.00 to compensate her for that harm is appropriate. 7 Birch v Otautahi Community Housing [2020] NZDC 17667. 8 Sun v Kang [2023] NZDC 24786 Filing fee
Because the tenant has substantially succeeded in her claim, the Tribunal orders the landlords to reimburse her for the filing fee. Non-publication
The parties seek non-publication of their identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. 9
The tenant substantially succeeded in the proceedings. Publication is not in the public interest or justified by the tenant’s conduct or any other circumstances.
The tenant’s identifying details must not be published.
The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that the name or any identifying particulars of any party not be published.
One of the landlords has serious health issues that could be exacerbated by the stress of publication. The landlords have remedied the house’s non- compliance and are not currently renting the premises out. The decision can be published with the parties anonymised to lessen the potential for offending the principle of open justice.
It is appropriate to order non-publication of the landlords’ details also.

Tenancy Tribunal case 4625752 — Exemplary damages

Tenancy Tribunal case 4625752 — Exemplary damages

Order

Reasons

Do you know if the insulation in the ceiling and floor is up to scratch?

HSS?

What amount of compensation should be ordered for the HHS breaches?

Should the Tribunal order exemplary damages for the HHS breaches?

What remedies should be ordered?

Order

Reasons

Do you know if the insulation in the ceiling and floor is up to scratch?

HSS?

What amount of compensation should be ordered for the HHS breaches?

Should the Tribunal order exemplary damages for the HHS breaches?

What remedies should be ordered?