What was Tenancy Tribunal case 4627237 about?

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

How much money was awarded in case 4627237?

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 4627237?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4627237?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11361271-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4627237 about?

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

How much money was awarded in case 4627237?

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 4627237?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4627237?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11361271-Tribunal_Order_Redacted.pdf.

Multiple Tenancies Tenancy Tribunal Case 4627237 — Exemplary damages

Order

The Tribunal orders suppression of the tenants’ names and identifying details.
8A Gray Avenue Limited must pay The Chief Executive, Ministry of Business, Innovation, and Employment of behalf of [The tenant/s] with respect to unit 2 $700.00 immediately, being exemplary damages for the breach of section 45(1)(a) of the Residential Tenancies Act 1986.
8A Gray Avenue Limited, LDW Limited and Brian Wang must pay The Chief Executive, Ministry of Business, Innovation, and Employment of behalf of [The tenant/s] with respect to unit 2 $9,500.00 immediately in accordance with the following table: Exemplary damages for the breach of section 45(1)(b) of the Act $3,000.00 Exemplary damages for the breach of section 45(1)(ba) of the Act $1,500.00 Exemplary damages for the breach of section 45(1)(c) of the Act $2,000.00 Compensation: stress$3,000.00 TOTAL$9,500
LDW Limited must pay The Chief Executive, Ministry of Business, Innovation, and Employment of behalf The Chief Executive, Ministry of Business, Innovation, and Employment of behalf of [The tenant/s] with respect to unit 2 $500.00 immediately being exemplary damages for the breach of section 123A of the Act.
8A Gray Avenue Limited must pay The Chief Executive, Ministry of Business, Innovation, and Employment of behalf of [The tenant/s] with respect to unit 5 $1000.00 immediately being exemplary damages for the breach of section 45(1)(a) of the Act.
8A Gray Avenue Limited, LDW Limited and Brian Wang must pay The Chief Executive, Ministry of Business, Innovation, and Employment of behalf of [The tenant/s] with respect to unit 5 $14,200.00 immediately in accordance with the following table: Exemplary damages for the breach of section 45(1)(b) of the Act $3,000.00 Exemplary damages for the breach of section 45(1)(ba) of the Act $1,500.00 Exemplary damages for the breach of section 45(1)(bb) of the Act $1,700.00 Exemplary damages for the breach of section 60AA of the Act$5,000.00 Compensation: stress$3,000.00 TOTAL$14,200.00
8A Gray Avenue Limited, LDW Limited and Brian Wang must pay The Chief Executive, Ministry of Business, Innovation, and Employment of behalf of [The tenant/s] $1,087.87 immediately in accordance with the following table: Witness costs$1,067.43 Reimbursement of the filing fee$20.44 TOTAL$1,087.87
Pursuant to s.109A, for the period of 6 years from the date of this Order, 8A Gray Avenue Limited, LDW Limited and Brian Wang: a. Must provide residential properties they tenant reasonably clean and tidy. b. Must provide and maintain residential properties they tenant to a reasonable standard. c. Must comply with the Healthy Homes Standards in all properties they tenant. d. Must comply with any regulations or laws regarding the provision of smoke alarms in properties they tenant. e. Must not unlawfully attempt to terminate or terminate the tenancy of any tenant. f. Must comply with any notice of the Chief Executive issued to them provided it is in compliance with the Act.
The claims against the third respondent are dismissed.

Reasons

The applicant, represented by Mr Boyd attended the hearing.
There was no appearance for any of the respondents. Three case conferences had been held prior to the hearing. Mr Wang the third respondent attended the second and third conferences. Mr Haosou, allegedly representing the second respondent, attended the third case conference.
Both Mr Wang and Mr Hausou confirmed at the third case management conference that they had received a copy of the application documents. They also confirmed the service details for the first and second respondents. I am satisfied on the evidence that all three respondents had been served with the claims and were aware of the hearing. The hearing was heard over two days and an interpreter had been provided for the respondents.
All three respondents had been afforded a number of opportunities to file evidence in defence of the claims. They were advised that if they required further time than that directed, they need only request it of the Tribunal. Despite these extensive provisions, they did not file any evidence nor statements in reply.
As the respondents did not attend either day of the hearing despite having ample notice to do so, pursuant to section 92 of the Residential Tenancies Act 1986 (the Act), the hearing continued in their absence.
The applicant alleges that all three respondents have breached the Act in relation to two tenancies. It seeks exemplary damages and compensation on all breaches, together with a restraining order preventing further breaches of the Act, and costs. The parties
The applicant is the Chief Executive, of the Ministry of Business, Innovation, and Employment (MBIE) and has brought proceedings pursuant to section 124A(1)(a) of the Act. The Tribunal must consider applications filed by the Chief Executive on behalf of tenants.
The relevant addresses and tenancies are: i. Unit 2, 8A Gray Avenue, (also known as 10 Gray Avenue) Mangere East, Auckland, (unit 2) the tenant being [Tenant 1]. This tenancy commenced on 17 November 2020 and ended about 22 August 2022. ii. Unit 5, 8A Gray Avenue, (also known as 10 Gray Avenue) Mangere East, Auckland, (unit 5) the tenant being [Tenant 2]. [Tenant 2]’s tenancy commenced on 17 January 2022 and ended on 25 November 2022.
Units 2 and 5 are located in a block of seven units at 8A Gray Avenue, Mangere East, also known as 10 Gray Avenue.
The First Respondent, 8A Gray Avenue Limited is the owner of all seven units at 8A Gray Avenue. The sole director of 8A Gray Avenue Limited is Qin Ding. LDW Ltd, the second respondent, is the sole shareholder of 8A Gray Avenue Limited.
The Second Respondent, LDW Ltd (LDW) operates as a property management company. Lin Liu is the sole director with a 90% shareholding. Qin Ding holds the remaining 10% of the shares.
The Third Respondent, Brian Wang, was the property manager, employed by LDW to manage both tenancies. Both tenants knew him as their property manager for the duration of their tenancies and he has confirmed his role to the Tribunal. Background
Both tenants were placed in these units through [prison integration system]. 1 Neither had a choice of accommodation and felt they had to take the units as they found them. Both were of the understanding that they were going to be housed with other female tenants but no one else was moved into their units during their tenure.
[Tenant 2] had been moved around various homes since August 2021 with, to her understanding, the same landlord but using the different names of Mauri Ora Ltd, W&L Ltd and LDW Ltd. The names were used interchangeably as were the property managers.
On 19 July 2022 [Tenant 1] laid a formal complaint with the Tenancy Compliance and Investigations Team (TCIT) about the state of unit 2. Her main concerns at the time were the lack of hot water and the sewerage running through the property.
On 26 July compliance officers conducted a site visit of unit 2. They found: 2 a. The entire property was in very poor condition. b. The grounds were covered in rubbish and overgrown. c. The entrance door was broken and unsecure. d. The kitchen area had visible stains from, and a strong smell of, leaking wastewater from the bathroom above. e. Draughts could be felt and gaps in the door, window frames and walls could be seen. f. The oven was not functional. g. All the windows were fragile and insecure. h. There was evidence of a lack of ventilation and moisture ingress. i. The shower tray was full of wastewater. j. There was no hot water in the unit.
At this site visit [Tenant 2] approached officers and advised them of concerns she had about unit 5. Officers viewed unit 5 and after various discussions, [Tenant 2] confirmed her official complaint on 1 September.
A further site visit was undertaken of both units on 28 July 2022 by compliance officers, an assessor from MBIE’s Weathertight Services and compliance investigators from Auckland City Council (ACC). ACC ostensibly concluded 3 both units were unsanitary buildings pursuant to the Building Act 2004. 1 [Prison integration system] 2 As noted in the statement of Officer Singh at paragraph 6 3 Based on emails of opinion however an insanitary notice was not issued
The Weathertight Services assessor, Mr John Andrew issued a report 4 based on his non-invasive assessment of unit 2 making the following conclusions: a. The property was not waterproof or draught proof. b. The shower tray was flooding after the flushing of the toilet with wastewater. c. There were leaks from the bathroom into the kitchen. d. Asbestos fibres were likely being released from the damaged fibre cement cladding. e. The roof was rusting and had reached the end of its serviceable life. f. Some windows and door joinery were broken. g. Some external cladding was broken or missing. h. There was evidence of internal leaks. i. There was no mechanical ventilation in the kitchen or bathroom nor any window in the bathroom.
On 10 August 2022 after oral confirmation from Mr Wang 5 that he was the property manager of all the occupied units at 8A Gray Avenue, Officer Singh sent him a Notice to produce specified documents in relation to unit 2. 6 Neither Mr Wang nor LWD complied.
On 22 August 2022 [Tenant 1] advised Officer Singh that men had attended unit 2 the previous night on the instruction of the property manager and attacked another tenant. She left the property shortly after fearing for her safety. She was prevented from returning by the erection of construction fences around the property.
Between 26 August and 31 August 2022 [Tenant 2] advised Officer Muagututia- Saipele that Mr Wang had attended the property telling residents to leave and that his associates had assaulted an occupant of another unit.
On 1 September compliance officers conducted a further site visit at unit 5. Unknown men were at the premise and the Police were called. Officer Muagututia-Saipele negotiated with Mr Wang for the men to allow [Tenant 2] to remain given she had a valid tenancy. [Tenant 2] vacated the tenancy in November.
The application was filed on 17 July 2023. 4 on 2 August 2022 5 Paragraph 21 of Officer Singh’s statement 6 Pursuant to section 123A and 133 of the Act. Evidence provided
The following are the witnesses for the applicant who gave oral evidence at the hearing and whose written statements were filed in evidence: a. Raveena Singh, previous (since resigned) Investigations officer for TCIT. b. Anthony Muagututia-Saipele, Investigations officer for TCIT. c. John Andrew, Weathertight Assessor independently contracted to MBIE. d. [Tenant 1]. e. [Tenant 2].
The following were the witnesses for the applicant who did not provide oral evidence at the hearing but whose written statements were accepted into evidence and relied on by the applicant: a. Je Wen Edwin Tan, compliance officer for TCIT. b. Dinesh Prasad, Senior Compliance Officer with the Compliance Response and Investigations Team at ACC. c. [Tenant 2’s partner] who resided in unit 5 for a period.

Are the respondents the correct respondents?

The first issue I must determine is whether the claims ought to be considered against all three respondents. This is because both tenants initially contracted for their tenancies with companies that proceedings have not been brought against. This is further because the Tenancy Tribunal has been established to determine claims in accordance with the Act between landlords and tenants only.
[Tenant 1]’s tenancy agreement was contracted with 3to1 Property Management Ltd (3to1) and signed by Joy Zhang, the sole director of 3to1. In June 2021 Ms Zhang told [Tenant 1] that her new property manager was Mr Brian Wang, the third respondent.
[Tenant 1]’s evidence is that she thought Ms Zhang was Mr Wang’s manager as he referred to her as such. She understood that Mr Wang and Ms Zhang worked for the same company and all the companies involved were linked.
Ms Zhang engaged with Officer Singh and advised that 3to1 ceased managing unit 2 on 15 June 2021 when LDW took over with Mr Wang as property manager. 7 7 Email from Ms Zhang to Officer Singh on 19 August 2022
[Tenant 2] contracted for unit 5 with W&L Ltd. She had previously contracted with Mauri Ora Ltd and LDW Ltd and W&L Ltd. She says the company names were used interchangeably but the property managers were consistent, one of which was Mr Wang. Representatives of these companies moved her around several times and eventually placed her in unit 5. Early on into the tenancy she says Mr Wang attended her home and told her he was her property manager. It was with him and others she corresponded with over the remainder of her tenancy.
At one point she was asked to sign an “updating” tenancy agreement, but she does not have a copy of this and is unaware of who the landlord was named as in that document. [Tenant 2’s partner]’s evidence was that he recalled the landlord being named on the second agreement as LDW Ltd. 8
The Chief Executive submits that the First Respondent are the correct respondents for each of the claims because they were the owners of the premise throughout the relevant period.
I accept this submission. Section 2(1) of the Act defines the meaning of landlord as: in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement ; and, where appropriate, includes- ... (e) an agent of the landlord"
The owner of a premise will usually be the grantor of the tenancy and therefore the landlord. There is no evidence here that indicates to the contrary.
The first and second respondents here are linked by way of shareholding. The second respondent is the sole shareholder of the first respondent and the sole director of the first respondent is a shareholder of the second respondent (with another).
Mr Wang confirmed orally to Officer Singh and to Officer Muagututia-Saipele in their discussions and to the Tribunal in case conference that LDW managed both units and he was the property manager employed by LDW.
Further, in Officer Singh’s statement 9 she states that documentation she obtained from the Ministry of Social Development evidenced a link between LDW Ltd, W&L Foundation Ltd, 3to1 Property Management Ltd and Mauri Ora Ltd because they all had the same bank account number.
Given the clear link between the first and second respondents, and the involvement of employees of the second respondent as property managers, I am satisfied of the following: a. From at least 15 June 2021 until the end of the tenancy the second respondent managed unit 2’s tenancy. This was confirmed by Mr Wang 8 Paragraph 6 of his statement 9 At paragraph 61 who was employed by the second respondent over the relevant period and Ms Zhang the original property manager and is consistent with [Tenant 1]’s evidence. b. Although there is no evidence of a shareholding or directorship link between W&L Ltd and the first and second respondents, Mr Wang by his own evidence managed unit 5’s tenancy from an early stage on behalf of the second respondent. Accordingly at some point in early to mid-2022 LDW became, if they were not already, the responsible property managers.
The definition of landlord as discussed above includes where appropriate an agent. The question then is whether both the first and second respondents were the ‘landlord’ of these tenancies. This is relevant because the Act governs disputes between landlords and tenants 10 only and therefore it is only a landlord who can be a party to proceedings.
There are many cases that discuss the meaning of where appropriate. In Lovell v At Home Rentals Limited 11 the Tribunal found both the agent and owners liable, relying on the extended definition of landlord in s 2(1), even though the tenancy agreement described the agent as “an agent for” the owners. Relevant factors to this determination included that the owners were overseas, the agent was responsible for managing all aspects of the tenancy, and some of the tenant’s complaints related specifically to the acts and omissions of the agent.
Mumby v Gary Brown Realty Ltd 12 is District Court authority that is binding on the Tribunal. The Court there looked at the situation as a whole and considered several factors in deciding the agent was liable under the tenancy agreement. Those factors included that the name of the agent was inserted in the tenancy agreement under the landlord’s details (without any qualifying words), rent was paid to the agent, a bond lodgement letter from the Bond Centre referred to the agent as landlord, the agent was involved in inspections, the agent dealt with the tenant's inquiries and complaints, and the agent issued a termination notice.
The Court concluded that the tenant could sue both the agent and owner, but not recover against both. The Court went on to say that the agent could only have avoided liability by showing he was “only an intermediary, for example by signing “as agent of” or “on behalf of”.”
In Routi v Tamaki Regeneration Limited 13 the District Court said at para [30]: The word “appropriate” as used in that definition does no more than extend the definition of landlord to entities other than the grantor of the tenancy to include ... an agent of the landlord. The word “appropriate” means no more than that 10 See section 77 of the Act 11 [2018] NZTT, Tauranga, 4112773 12 [2011] DCR 420 13 [2017] NZDC 10731 any one of those entities may also be treated as a landlord where it is appropriate to do so.
This decision was appealed, and the High Court confirmed the approach stating: Those words do not mean that a subjective assessment is required to determine whether in any given case one of the persons listed in the definition is a suitable person to be classified as a landlord. Rather, the words have the meaning similar to “where the context makes it appropriate”. 14
In my view this situation is one which fits squarely into the meaning and intention of ‘where appropriate’. The first and second respondents are structurally linked, so much so that they could be considered one entity. The first respondent owned the properties through the relevant period and instructed their own managers. The evidence of the tenants is that they knew their landlord to be represented by employees of the second respondent.
Finally, both respondents were aware the proceedings had been filed against them in their alleged capacity as landlord of these properties and they have not disputed this positioning. Accordingly, I find that the first and second respondents were both the landlord in these tenancies. As such, the lodging of proceedings against them was appropriate.
The third respondent, Mr Wang is in a different position. Whilst he did not argue against his liability, at all times he presented himself merely as agent for the second respondent. The principles of agency law are clear in this regard: the actions of the agent are deemed to be the actions of the principal unless it is proven that the agent acted outside their authority.
There is no evidence here that Mr Wang acted on his own volition, outside of the instruction of his company. He was clear that he was employed by the second respondent to manage the properties and although some of his actions were extreme, as discussed below, there is no evidence that he did so without authority. 15 To the contrary, in discussions with officers and the tenants he frequently referred to his managers and was clearly guided by them.
Accordingly, all claims against Mr Wang personally, are dismissed. It is the first and second respondent who retain culpability for these tenancies.
Hereafter when I refer to the ‘landlord’ I mean the first and second respondents jointly.
As an aside I note that although [Tenant 1]’s ‘tenancy agreement’ was a ‘flat/house sharing agreement’ that ostensibly excluded the Act, I am of the view 14 Rauti v Tamaki Regeneration Limited [2017] NZHC 2326 15 I discuss this further below in my consideration of the claim pursuant to section 60AA of the Act that she did have tenancy agreement to which the Act should and did apply. For the following reasons: a. Section 11 of the Act states that Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. b. Although the agreement states that 3to1 is the head tenant there is no assertion that anyone from 3to1 resided at the premise as would normally be the case in a flat or house-sharing arrangement and as would be required to exempt the Act. 16 c. Although the agreement referred to a flat sharing arrangement no other person shared the property with her, other than her invited guests. [Tenant 1] lived in the house on her own for the duration of the tenancy. d. The agreement therefore did not reflect the actual situation which more accurately resembled a tenancy as defined in the Act. The claims
The applicant contends that all the respondents are in breach of the following sections of the Act with respect to unit 2: a. Section 45(1)(a) the responsibility to provide the premises in a reasonable state of cleanliness. b. Section 45(1)(b) the responsibly to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. Specifically: i. The sewerage issues. ii. The lack of hot water. 16 Section 5(n) of the Act iii. The drainage which caused flooding. iv. The bedroom windows that would not close. v. The home not being watertight. c. Section 45(1)(ba) the responsibility to comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A. d. Section 45(1)(c) the responsibility to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premise. In particular the Housing Improvement Regulations 1947 (the Regulations): i. Regulation 9: Every bathroom or water closet compartment shall have as 1 of its sides an external wall in which is fitted at least 1 window directly opening to the external air, unless other adequate means of ventilation are provided to the satisfaction of the local authority. ii. Regulation 15: every house be free from dampness. e. Section 123A of the Act, the obligation to retain and produce certain documents upon receipt of a Notice from the Chief Executive.
The applicant contends that all the respondents are in breach of the following sections of the Act with respect to unit 5: a. Section 45(1)(a) the responsibility to provide the premises in a reasonable state of cleanliness. b. Section 45(1)(b) the responsibly to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. Specifically: i. Significant damage to the walls and doors of the interior. ii. The lack of hot water iii. The sewerage issues. iv. The electrical issues. c. Section 45(1)(ba) the responsibility to comply with all requirements in respect of smoke alarms imposed on the landlord by regulations. d. Section 45(1)(bb) the responsibility to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). In particular the: i. Draught stopping standard. ii. The moisture ingress standard. iii. The heating standard. e. Section 60AA: A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.
I discuss the claims separately as follows. However, I begin by noting that 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 Chief Executive) 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 may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Claims regarding Unit 2 Section 45(1)(a) the responsibility to provide the premises in a reasonable state of cleanliness.
[Tenant 1]’s evidence establishes that when she commenced her tenancy there were piles of rubbish outside the front door being building materials and household waste. She had to move some merely to access the property. She estimates there were two ute loads full. Some was subsequently removed by the landlord, but she had to burn some.
On the evidence I find the claim regarding the rubbish left at the entranceway of the property proven. I find the first respondent liable for this unlawful act only as the evidence has not established the second respondent was directly involved at this point. I discuss monetary orders below. Section 45(1)(b) the responsibility to provide and maintain the premises in a reasonable state of repair
The evidence is consistent in establishing that unit 2 was not adequately maintained during [Tenant 1]’s tenancy. Specifically: i. For approximately six months there was no hot water. ii. For at least 10 weeks the wastewater malfunctioned and resulted in sewerage permeating the shower and kitchen. She had to drill a hole in the kitchen floor for it to drain out of the kitchen. The smell of sewerage became engrained in the home and she could not use the shower, toilet nor kitchen. iii. For the duration of the tenancy there was insufficient drainage which caused flooding in the entranceway to the premise. iv. For the duration of the tenancy the bedroom windows would not close fully creating a draught and hazard. v. The home was not watertight for the duration of the tenancy and as a result it suffered extreme moisture and mould. vi. The mesh on the screen door was broken from the commencement of the tenancy enabling access to the lock. [Tenant 1] repaired this herself. vii. At one point the front door got broken by an attempted intrusion rendering it unlockable. [Tenant 1] advised the property manager, but it was not repaired.
Officers Muagututia-Saipele 17 and Singh, Mr Prasad and Mr Andrews all observed the state of the home and confirmed [Tenant 1]’s oral evidence.
[Tenant 1] provided a recording of a conversation she had with Mr Wang regarding the hot water and plumbing issues. Within the conversation Mr Wang confirmed he was aware of the difficulties. Officer Singh’s evidence 18 is that in an oral conversion with Mr Wang he also agreed to her that he was aware that there was no running hot water in any of the units.
I therefore find the landlord was aware that [Tenant 1] was living without hot water and with hazardous plumbing issues, not to mention the effect it was having on her.
I also consider the landlord was or ought to have been aware of the drainage issues, the ill-maintained windows and the lack of weatherproofing as they were observable and present for the duration of the tenancy. I am satisfied they were in existence at the commencement of the tenancy.
I accept Mr Andrews’ evidence that the state of the roof would not have been obvious to the general observer but the holes in the cladding were. All these issues arose due to a lack of maintenance and care for the property for which the landlord is solely responsible. 17 As taken from his statement dated 28 March 2023 18 Statement paragraph 21
Accordingly, I find both respondents liable as landlord for the breach of section 45(1)(b) of the Act which is an unlawful act. I discuss monetary orders below. Section 45(1)(ba) the responsibility to comply with all requirements in respect of smoke alarms
The evidence of [Tenant 1] and the TCIT investigators establishes that there were no working smoke alarms provided with the premise nor installed during the tenancy.
Accordingly, I find both respondents liable as landlord for the breach of section 45(1)(ba) of the Act which is an unlawful act. I discuss monetary orders below. Section 45(1)(c) the responsibility to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premise. In particular the Housing Improvement Regulations 1947:
I am satisfied on the photographic and oral evidence that there is no window nor ventilation in the bathroom. This is in breach of Regulation 9.
I am also satisfied on the evidence of Mr Andrews that the home is not weathertight and accordingly breaches Regulation 15.
I find both respondents liable as landlord for the breach of section 45(1)(c) of the Act which is an unlawful act. I discuss monetary orders below. Section 123A of the Act, the obligation to retain and produce certain documents upon receipt of a Notice from the Chief Executive.
The Chief Executive has established that a Notice pursuant to sections 123A and 133 of the Act was issued to Mr Wang on behalf of LDW on 10 August 2024. He was told by Officer Singh that the letter would outline the responsibilities of LDW which he affirmed.
Section 123A of the Act states that: (2) The chief executive may by notice in writing require a landlord to produce to the chief executive any specified documents, or any documents of a specified class (4)A landlord who receives a notice under subsection (2) must, within 10 working days of receiving the notice, produce the documents to the chief executive in the way specified in the notice. (5) A landlord who, without reasonable excuse, fails to comply with subsection (4)— (a) commits an unlawful act; and
Section 133 of the Act states: (1) The Tribunal or the chief executive may, by notice in writing, require a landlord to inform the Tribunal or the chief executive of the provisions of any specified tenancy agreement or agreements...
There is no evidence that LDW complied with the Notice. The email was sent to Mr Wang’s email account at LDW. Accordingly, I find the second respondent has breached section 123A of the Act which is an unlawful act. Claims regarding Unit 5 Section 45(1)(a) the responsibility to provide the premises in a reasonable state of cleanliness.
[Tenant 2]’s evidence regarding her tenure at unit 5 established that the house was in a poor state of repair and cleanliness when the tenancy commenced. She says there was extensive mould, dirt, damage and rubbish. Her evidence is that it was as if someone had just walked out and then the property had been left for some time. For example, there was food in the oven and cupboards.
On the evidence I consider this claim proven. I find the first respondent liable for this unlawful act only as the evidence has not established the second respondent was directly involved at this point. I discuss monetary orders below. Section 45(1)(b) the responsibility to provide and maintain the premises in a reasonable state of repair
[Tenant 2] gave comprehensive and clear evidence that the damage that was photographed in the tenancy at the TCIT inspections was present when she moved in. The photos show stab marks and holes in doors and walls throughout.
I also accept [Tenant 2]’s evidence that within four weeks of residing in the property the shower commenced flooding when used and wastewater would leak through into the kitchen when it rained. It got to the extent where she had to shower standing in a bucket. She reported this to her property managers, without response.
[Tenant 2]’s evidence is also that in the fourth month of the tenancy the hot water ceased working and at times the water would run brown. She spoke to Mr Wang about these issues however they were not investigated during her tenure.
Her further evidence is that when she first moved in, only one element on the stove worked. However, during the tenancy there was an explosion, and the last element and fuse blew. From that point she did not have a functioning oven. She also discussed this with Mr Wang.
[Tenant 2] estimates that she reported maintenance problems to her property managers at least 15 times.
The TCIT officers’ evidence supports [Tenant 2]’s account. Officers Muagututia-Saipele and Singh gave evidence that they could smell raw sewerage from the unit. Officer Prasad’s statement notes he observed a lack of hot water in the unit, a missing stair and mould in unit 5. Officer Tan also noted considerable disrepair, broken light switches and faulty lights, multiple holes in the walls and leaks.
I am satisfied that the evidence establishes this claim as proven. Accordingly, I find both respondents liable as landlord for the breach of section 45(1)(b) of the Act which is an unlawful act. I discuss monetary orders below. Section 45(1)(ba) the responsibility to comply with all requirements in respect of smoke alarms
The evidence of [Tenant 2] and the TCIT investigators establishes that there were no smoke alarms provided with the premise.
Accordingly, I find both respondents liable as landlord for the breach of section 45(1)(ba) of the Act which is an unlawful act. I discuss monetary orders below. Section 45(1)(bb) the responsibility to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
The HHS state varying compliance dates depending on a tenancy’s commencement date. As [Tenant 1]’s tenancy commenced prior to 1 July 2021, the HHS does not apply to it. [Tenant 2]’s tenancy however commenced on 17 January 2022 and therefore the landlord had 90 days from then to ensure the property complied with the HHS.
The standards the applicant contends unit 5 did not comply with are the: a. The heating standard which requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. b. The draught stopping standard which requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. c. The ventilation standard which sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The evidence has established that unit 5 was provided to [Tenant 2] with a wall fan heater from which brown liquid would leak when it was used. This was not a qualifying heater. On this basis I find that the home did not comply with the HHS heating standard.
[Tenant 2] gave evidence that draughts could be felt through the property and gaps seen in windows and the front door. Officer Muagututia-Saipele’s evidence substantiates this evidence. I am satisfied that the evidence establishes that unit 5 did not meet the HHS draught stopping standard.
The oral and photographic evidence is that there were no functioning extractor fans in the kitchen and bathroom. Accordingly, I find that unit 5 breaches the HHS ventilation standard.
I am satisfied that both respondents are liable for these breaches of section 45(1)(bb) of the Act and I discuss monetary orders below. Section 60AA: A landlord commits an unlawful act if they give or purport to give an unlawful notice to terminate the tenancy
The Chief Executive contends that Mr Wang on behalf of LDW attempted to end [Tenant 2]’s tenancy by force between 26 August and 1 September 2022. The evidence is that a group of unknown men instructed by LDW attended the premise on 26 August telling [Tenant 2] they were taking the houses back. [Tenant 2] thinks Mr Wang was a member of the group but cannot be certain it was him.
On 31 August they returned and told [Tenant 2] she had to vacate by 9am the next morning when they would return. [Tenant 2] sought the assistance of Officer Muagututia-Saipele and Officer Singh who attended the property the following morning and spoke to the men. The men got their ‘supervisor’ on the phone to talk to the officers, and he identified himself as Mr Wang.
Mr Wang confirmed orally to Officer Muagututia-Saipele that he was representing LDW, and he had instructed the men to be there to ensure no trespassers or squatters entered the land. After a discussion, Mr Wang agreed that [Tenant 2] had a valid tenancy and may remain.
[Tenant 2]’s evidence is that prior to Officer Muagututia-Saipele’s attendance, the men had forcibly evicted the other tenants in the block. [Tenant 1] gave clear evidence at the hearing that she vacated the tenancy under duress. She says that the group of men attended the unit on the 26th of August and told her she had to leave whilst physically assaulting her neighbour. She was so scared that she fled the property leaving all of her possessions. Shortly after she did, construction fencing was erected around her unit and entrance was prohibited by the men standing guard.
Officer Muagututia-Saipele’s evidence is that he received text communications from [Tenant 2] seeking his help as she had been told they were coming to evict her the next day. He observed the property to be barricaded, with a small entrance into unit 5. They were told they were not allowed to be there and were not allowed to take photos. One of the men was wearing a vest with a gang insignia on it.
He further says that [Tenant 2’s partner] asked him to stay because otherwise the men would physically remove him, but he was bailed there and could not leave. He says [Tenant 2’s partner] was clearly scared, saying ’something will happen to me’. He says [Tenant 2] was also frightened and said they were being ‘stood over’ which is street language for being intimidated.
Officer Muagututia-Saipele also gave evidence that he spoke with [Tenant 2’s partner]’s probation officer who advised that she had attempted to visit him a few days prior but was threatened and told to leave.
Officer Singh’s evidence confirms that these events occurred only days after she had advised Mr Wang of the TCIT investigation and requested information.
Under Section 60AA of the Act a landlord must not give or purport to give a notice to terminate the tenancy or, knowing they are not entitled to do so.
The evidence of the events over this period comes from multiple sources and is compelling. [Tenant 2] and [Tenant 1] gave evidence of first-hand experiences. Officer Singh and Officer Muagututia-Saipele also gave evidence of what they experienced when they attended the property. I further heard recordings of 111 calls from [Tenant 2] and other observers about the actions of the property manager and his associates. Their actions were clearly aggressive and intimidatory.
Having considered the evidence, I find the following: a. Men engaged by Mr Wang on behalf of LDW Ltd attended the premise on several occasions between 26 August and 1 September 2022. b. The men assaulted another tenant at the premise. c. The men told [Tenant 2] and [Tenant 1] that they were required to leave the property. d. The men prevented and attempted to prevent guests of the tenants’ visiting. e. Construction fencing was erected around each unit that was taken back into the possession of the landlord. f. This behaviour was undertaken in an effort to force the tenants to leave the property.
Accordingly, I find that the landlord has breached section 60AA of the Act which is an unlawful act. I discuss monetary orders below.
I note that the Chief Executive did not make an application under section 60AA of the Act regarding unit 2. Officer Muagututia-Saipele’s evidence in this regard was that he could not confirm [Tenant 1]’s evidence at the time of lodgement with her regarding her departure from the tenancy.
Although a claim in this respect has not been advanced by the applicant, I make reference to the circumstances to acknowledge the trauma and loss [Tenant 1] suffered at the hands of agents of her landlord. [Tenant 1] had worked hard to establish her home and life in unit 2, coming from a situation where she had very little. She lost all she had worked for in this series of events that cannot be termed anything other than an unlawful eviction. It has taken her some time to rebuild her life and I commend her in doing so whilst acknowledging how challenging that must have been given what she suffered.

Should exemplary damages be awarded?

I have found that the landlord has committed the following unlawful actions: (i)Breaching section 45(1)(a) of the Act with respect to both units by failing to provide the homes reasonably clean and tidy (first respondent only). (ii)Breaching section 45(1)(b) of the Act with respect to both units by failing to provide and maintain the homes in a reasonable state of repair. (iii)Breaching section 45(1)(c) of the Act with respect to unit 2 by failing to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premise. (iv)Breaching section 123A of the Act by failing to provide the required documents with respect to unit 2 only (second respondent only). (v)Breaching section 45(1)(bb) of the Act with respect to unit 5 by failing to comply with the HHS. (vi)Breaching section 60AA of the Act with respect to unit 5 by attempting to give notice to vacate to [Tenant 2] knowing they were not lawfully able to. (vii)Breaching section 45(1)(ba) of the Act with respect to both tenancies by failing to provide lawful smoke alarms.
The Applicant seeks exemplary damages for these breaches. Exemplary damages are designed to punish and to deter. They are like a fine. As explained by the Court of Appeal: 19 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 it is established in evidence that the other party has intentionally committed an unlawful act as defined in the Act.
Section 109 of the Act states the following factors for the Tribunal to have regard of: 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. Specifically: a. Breaching section 45of the Act 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 the Act. b. Breaching section 123A of the Act by failing to provide the required documents upon the service of a notice is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 123A and Schedule 1A the Act. c. Breaching section 60AA without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See Schedule 1A RTA.
I am satisfied that these unlawful acts were committed intentionally. Both respondents are landlords of multiple properties. That is the business they are in. They do and/or should know the law and in particular their obligations under the Act. 19 Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P)
I am also satisfied that the intent of the respondents can be inferred as malicious at worst, but intentional at the very least. They were aware of the state of both units, not only by the tenants themselves notifying them via the various property managers, but also the TCIT involvement. A number of issues were also readily observable. The breach of section 60AA of the Act was undertaken with the full knowledge that TCIT were investigating the properties.
Mr Boyd’s submission is that these tenants’ inherently vulnerable states were exploited by the landlord. His submission is that it is situations such as this that created a need for minimum statutory provisions regarding housing standards and tenants such as these for whom these protections were created. Mr Boyd submits there is clear public interest in holding landlords to account who fail to comply with even the minimum standards.
The breaches are striking and serious, made particularly so as the landlord was aware of the situation. No person can be expected to live in such conditions which were unsanitary and dangerous.
The effect on both tenants was considerable. They were exceptionally vulnerable and were effectively preyed on. Both endured issues that they should not have had to but did because they were grateful for homes. As an example, [Tenant 1] ignored her bedroom windows not closing because they were on the second story so could not be used by intruders. Both tenants cleaned up others rubbish just so they could use their homes.
[Tenant 1]’s evidence is that due to the lack of a bathroom and kitchen she had to go to shops and buy things to use their facilities or ask undesirable people to use theirs. She had to cook for a neighbour to use their shower.
[Tenant 1] gave evidence of leaving the property with nothing and having to revert to undesirable associates for a bed, and as such falling back into habits she had thought she had left behind. She says she felt like no one cared about her or her experiences, and as such she was worthless.
Mr Boyd submits that an award of exemplary damages at the higher end of the scale is warranted in these circumstances, and I agree. Both Officer Muagututia-Saipele and Ms Singh’s evidence that these were some of the worst homes they have ever seen in their work is compelling. Officer Muagututia- Saipele is a particularly experienced compliance officer and yet was appalled at the situation.
The Tribunal usually will only order a maximum level of exemplary damages in the most egregious of cases. I consider this such a case for the facts discussed above.
It is most clearly in the public interest for landlords not to provide properties of this nature for their tenants, nor ignore their complaints nor force their departure. It is precisely to stop these sorts of practices that there are minimum industry standards and the TCIT department was established.
$7,200 is the maximum award of exemplary damages that can be made for a breach of any of the obligations as set out in section 45 of the Act. This global maximum has been confirmed by the District Court in MBIE v Hills Shearing Limited [2024] NZDC 27583. Paragraph 21: I agree that the use of the plural term “Landlord failing to meet obligations in respect of cleanliness, maintenance, smoke alarms, the healthy home standards, or building, health, and safety requirements” in schedule 1A reflects the maximum award of $7,200 regards a global or total award for all breaches under s 45.
Accordingly, I consider the following awards just: a. For the breach of section 45(1)(a) of the Act (provision of the property): i. For unit 2: $700.00. ii. For unit 5: $1,000.00. b. For the breach of section 45(1)(b) of the Act (maintenance): i.For unit 2: $3,000.00. ii.For unit 5: $3,000.00. c. For the breach of section 45(1)(ba) of the Act (smoke alarms): i. For unit 2: $1,500.00. ii. For unit 5: $1,500.00. d. For the breach of section 45(1)(bb) of the Act (HHS) with respect to unit 5: $1,700.00. e. For the breach of section 45(1)(c) of the Act (compliance) with respect to unit 2: $2,000.00. f. For the breach of section 123A of the Act with respect to unit 2:$500.00. g. For the breach of section 60AA of the Act with respect to unit 5: $5,000.00.
In coming to the above amounts, I have considered the respective lengths of the tenancies, the seriousness of the breaches and the effect each breach has had on the tenants.

Should compensation be awarded?

The Chief Executive seeks compensation for the emotional distress caused to [Tenant 1] and [Tenant 2] during their tenancies.
There are limitations on the Tribunal’s ability to order general damages for emotional injury such as stress, anxiety and humiliation. The Court of Appeal decision, Bloxham v Robinson [1996] 2 NZLR 664, held that general damages for emotional injury arising from breach of contract are not available except when mental satisfaction is an object of the contract. However, the Tribunal has awarded general damages to tenants in numerous cases on the basis that, from a tenant’s perspective, a residential tenancy agreement cannot be characterised in the same way as a commercial contract. The right to occupy premises for rent is at the heart of a tenancy contract but so is quiet enjoyment, peace and privacy, such that mental satisfaction is very much an object of the contract. Therefore, a breach of those rights entitles an award by way of damages or compensation as the Tribunal sees fit under s77(2)(n) of the Act.
Nevertheless, it is not something that the Tribunal does lightly. The normal rules for damages apply; it must be established that there was a breach of an obligation or right, damage, that the damage was foreseeable and that an amount of damages is appropriate. The landlord here has breached their obligations on multiple fronts.
Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775 is a previous case which suggests appropriate bands where making awards for emotional harm damages. Those amounts have been increased in the 2022 Tribunal case A v Singh 20 to take into account inflation: “ A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.”
Both these tenants were treated with disregard. Their complaints and requests were ignored. Both were intimidated to leave their homes; particularly [Tenant 1] who felt compelled to leave her home of two years without her belongings. Neither were afforded a safe and comfortable living environment, and their vulnerabilities were prayed on.
Accordingly, I consider an award of $3,000 each appropriate. These awards will go no way towards rectifying the impact on these ladies’ lives of the way they were treated, but by awarding the highest amount I consider available, I am signalling to [Tenant 1] and [Tenant 2] that what happened to them was not right. 20 [2022] NZTT Auckland 4315225

Should restraining orders be made?

Section 109A of the Act states that the Tribunal may restrain further commissions of unlawful acts if satisfied that it is in the public interest to do so. It is an offence to intentionally contravene such an order and the landlord would be liable on conviction to a fine not exceeding $3,600 for doing so.
Given the first and second respondent’s failure to engage with these proceedings and their lack of regard for [Tenant 1] and [Tenant 2] during their tenancies, I am concerned that they consider themselves above the law when it comes to the appropriate administration of their tenancies. Given this concern I consider it just to restrain the first and second respondents from committing further unlawful acts as they have done so here.

What costs should be awarded?

Because the Chief Executive was successful in their claims, I must award reimbursement of the filing fee.
Mr Boyd submits that the landlord should also be liable for the costs of the expert witness, Mr Andrew. He makes this submission pursuant to section 102(2)(b) of the Act, which provides that the Tribunal may award costs where any party is represented by counsel.
Specifically, Mr Andrew’s costs of $1,067.43 are for his time in the assessment of the properties, provision of the report and attendance at the hearing.
Rule 13 of the Residential Tenancies Rules 2010 provides: A person who attends before the Tribunal for the purpose of giving evidence in any proceedings is entitled to receive any fees, allowances, and travelling expenses that the Tribunal directs in accordance with the scale set out in the Schedule of the Witnesses and Interpreters Fees Regulations 1974.
The Witnesses and Interpreters Fees Regulations 1974 have now been replaced 21 by the Witness and Interpreters Fees, Allowances, and Expenses Regulations 2023 (WIFR).
The Chief Executive’s claim for Mr Andrews’ costs are within the WIFR and as such the orders are made as sought. 21 Section 15 Witness and Interpreters Fees, Allowances, and Expenses Regulations 2023

Should suppression orders be made?

Where the Chief Executive brings a claim on behalf a tenant under s 124A RTA, the Tribunal is required to order that the name and identifying details of the tenant not be published. 22 Accordingly the tenants’ details are not to be published.
I do consider it in the public interest 23 that the landlord’s details be published. They are the landlord of other tenancies and have not been successful in defending the claims.

Tenancy Tribunal case 4627237 — Exemplary damages at Multiple Tenancies

Tenancy Tribunal case 4627237 — Exemplary damages at Multiple Tenancies

Order

Reasons

Are the respondents the correct respondents?

Should exemplary damages be awarded?

Should compensation be awarded?

Should restraining orders be made?

What costs should be awarded?

Should suppression orders be made?

Order

Reasons

Are the respondents the correct respondents?

Should exemplary damages be awarded?

Should compensation be awarded?

Should restraining orders be made?

What costs should be awarded?

Should suppression orders be made?