What was the outcome of Tenancy Tribunal case 4647529?

The tribunal order states: Bryceson Limited (trading as Pukeko Rental Managers) as agent for SS

How much money was awarded in case 4647529?

Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4647529?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4647529?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9555438-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4647529?

The tribunal order states: Bryceson Limited (trading as Pukeko Rental Managers) as agent for SS

How much money was awarded in case 4647529?

Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4647529?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4647529?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9555438-Tenancy_Tribunal_Order.pdf.

804 Churchill Street, Akina, Hastings 4122 Tenancy Tribunal Case 4647529 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4647529 — net $500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: No ground moisture barrier	$500.00	No ground moisture barrier
Net award	$500.00
Total payable by Landlord to Tenant	$500.00

Order

Bryceson Limited (trading as Pukeko Rental Managers) as agent for SS Property Limited (the owner) must pay Garry John Hooker $500.00 immediately.
The tenant’s claims are otherwise dismissed.
Glenn Hall attended on behalf of the landlord’s property management company.
The tenancy commenced on 3 November 2022. The end of the tenancy was disorderly resulting in the tenancy being terminated by consent on 13 September 2023 at a Tenancy Tribunal hearing. The tenant has now vacated the premises.
The tenant filed an application on 4 August 2023 and claims compensation and exemplary damages for various alleged breaches by the landlord of its obligations under the Residential Tenancies Act 1985 (the RTA). The tenant’s specific claims include: a. The kitchen lacked an extractor fan; b. The bathroom ventilation was damaged; c. The storm water drainage did not drain away from the house; d. There was no underfloor moisture barrier; and e. There were insufficient smoke alarms in the premises.
In the landlord’s written submissions there are several references to the tenant’s behaviour during the tenancy and damage to the premises. The landlord has not filed a cross application, so those matters have not been considered herein.
The tenant’s presentation of his claims consisted of his oral evidence and photographs. The landlord provided comprehensive written submissions,

RELEVANT LEGAL CONSIDERATIONS

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

THE TENANTS CLAIMS

Failure to comply with the Healthy Homes standards

The tenant submits that the premises do not comply with the Healthy Homes Standards in a number of respects.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the RTA requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered is set out in Schedule 1A to the RTA, which for a breach of section 45 is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, with all private rentals needing to comply with the HHS within 120 days of any new or renewed tenancy after 1 July 2021. Accordingly, this tenancy needed to comply with the HHS by 3 March 2023. Kitchen and bathroom ventilation
The tenant states that there was no extractor fan in the kitchen when he moved in and holes in the bathroom extractor fan ducting. The tenant provide photographs of the lack of extractor fan in the kitchen and damaged ducting in the bathroom ceiling. The tenant referred to the compliance statement completed by the landlord at the start of the tenancy which confirmed that the ventilation standards had been met.
The landlord submits that the tenant referenced the lack of kitchen ventilation during an inspection on 20 March 2022 and the landlord installed kitchen ventilation 9 days later and before the compliance deadline. The landlord claims that the compliance statement was completed incorrectly due to human error.
In terms of the bathroom ventilation ducting, the landlord submits that the tenant did not give notice of damaged ducting and that even if he had access to the premises has been restricted by the tenant.
Since being granted possession of the premises, the landlord has had an opportunity to sight and repair the damage and the landlord submits that the damage appeared as though the ducting had been stabbed several time.
The ventilation standard requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The tenant has not convinced me that the landlord has breached the ventilation standard. The evidence is that there were extractor fans within the necessary time limits, that were externally ducted.
What the tenant has described in terms of the bathroom ventilation ducting is damage to the ducting. That is an issue of maintenance. The landlord is required to maintain the premises (see section 45(1)(b)) and failing to do so could lead to other claims in the Tribunal, but the tenant has not advanced any such claims here.
The tenant’s claim is dismissed. Lack of drainage
The tenant claims that the drainage from the guttering would release directly onto the ground and would often floor when it rained heavily. The tenant claims to have raise the issue with the landlord verbally. The tenant provided photographs of the outfall pipe. The tenants position is that there is a breach of the HHS.
The landlord’s position is that the downpipe had been damaged during the tenancy and not reported to them. They referred to photographs of the drainage system pre and post tenancy.
The relevant provision of the HHS requires that each tenancy building must have a drainage system that efficiently drains water to an appropriate outfall.
Having considered the evidence, I accept that it is more likely than not that the downpipe was damaged during the tenancy. Therefore, I do not consider this is a breach of the landlords HHS obligation per say, rather the issue falls into the maintenance category. To put it another way, the premises did have suitable gutters to remove water, but the gutter needed maintenance when it started leaking. Whilst the tenant claims that they raised the issue with the landlord, there is no evidence supporting that. The landlord cannot be responsible for failing to repair something they were not notified of.
The tenant’s claim is dismissed. Moisture ingress
The moisture ingress and drainage standard requires a ground moisture barrier when there is an enclosed subfloor space.
The evidence is that there is no ground moisture barrier. The landlord accepts that it has not complied with the HHS to that extent.
The result is that the landlord has breached the moisture barrier obligation and therefore the landlord has breached its obligations under the HHS.
The question then becomes, whether compensation or exemplary damages should be ordered.
In defence of the claim, the landlord advised that the tenants did not raise any complaints. It is not relevant that the tenants did not raise complaints with the landlord. The HHS provides a set of positive obligations on the landlord with the tenancy. The landlord has either provided a tenancy meeting the minimum standards or they have not. It is not expected that tenants chase up the landlord to comply.
The tenant has not presented me with any evidence that it suffered a loss as a result of the breach and so no compensation is payable.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
Taking into account the section 109 factors set out above, I consider it is more likely than not that the breach is intentional. The owner of the premises has significant experience in designing and building homes and should have of the deficiencies with the premises.
I do not accept that there has been a significant impact for the tenant. The tenant’s evidence was that the premises were cold and unpleasant to live in. It can be accepted that would have likely been contributed to by the absence of an underfloor moisture blanket.
There is a strong interest for tenants to live in residential tenancies that are warm, and dry, and the HHS is a key measure in which this expectation is achieved. There is a strong public interest that tenancies are healthy, and to a degree that applies to landlords in general.
I consider it would be just to make an order in this case.
The maximum level of exemplary damages for a breach of the landlord’s HHS obligations, is $7,200.00. In this case I have determined that a minimal order would be reasonable, taking into account that the tenant was not significantly impacted and might not have known of the breach if it had not been for the plumbers attendance at the premises. I therefore order exemplary damages be paid to the tenant of $500.00. Smoke alarms
The tenant claims that the smoke alarm provided by the landlord would repeatedly go off and so he purchased his own.
The landlord says that there was a smoke alarm in the premises and that the tenant removed it during the tenancy.
Section 45(1)(ba) of the RTA requires that landlords comply with all requirements in relation to smoke alarms made under section 138A. The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational.
This is the tenant’s claim to prove. The tenant’s evidence about the smoke alarm was confusing. I have carefully considered the photographs provided, and I can see evidence of a smoke alarm in the photographs. I am not persuaded by the tenant’s evidence that there has a breach and this claim is dismissed. Filing fee
Garry John Hooker has not substantially succeeded with the claims therefore I have not awarded suppression or reimbursed the filing fee. T Lee-Lewis 20 October 2023

Claims and awards in Tenancy Tribunal application 4647529 — net $500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: No ground moisture barrier	$500.00	No ground moisture barrier
Net award	$500.00
Total payable by Landlord to Tenant	$500.00

Order

Bryceson Limited (trading as Pukeko Rental Managers) as agent for SS Property Limited (the owner) must pay Garry John Hooker $500.00 immediately.
The tenant’s claims are otherwise dismissed.
Glenn Hall attended on behalf of the landlord’s property management company.
The tenancy commenced on 3 November 2022. The end of the tenancy was disorderly resulting in the tenancy being terminated by consent on 13 September 2023 at a Tenancy Tribunal hearing. The tenant has now vacated the premises.
The tenant filed an application on 4 August 2023 and claims compensation and exemplary damages for various alleged breaches by the landlord of its obligations under the Residential Tenancies Act 1985 (the RTA). The tenant’s specific claims include: a. The kitchen lacked an extractor fan; b. The bathroom ventilation was damaged; c. The storm water drainage did not drain away from the house; d. There was no underfloor moisture barrier; and e. There were insufficient smoke alarms in the premises.
In the landlord’s written submissions there are several references to the tenant’s behaviour during the tenancy and damage to the premises. The landlord has not filed a cross application, so those matters have not been considered herein.
The tenant’s presentation of his claims consisted of his oral evidence and photographs. The landlord provided comprehensive written submissions,

RELEVANT LEGAL CONSIDERATIONS

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

THE TENANTS CLAIMS

Failure to comply with the Healthy Homes standards

The tenant submits that the premises do not comply with the Healthy Homes Standards in a number of respects.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the RTA requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered is set out in Schedule 1A to the RTA, which for a breach of section 45 is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, with all private rentals needing to comply with the HHS within 120 days of any new or renewed tenancy after 1 July 2021. Accordingly, this tenancy needed to comply with the HHS by 3 March 2023. Kitchen and bathroom ventilation
The tenant states that there was no extractor fan in the kitchen when he moved in and holes in the bathroom extractor fan ducting. The tenant provide photographs of the lack of extractor fan in the kitchen and damaged ducting in the bathroom ceiling. The tenant referred to the compliance statement completed by the landlord at the start of the tenancy which confirmed that the ventilation standards had been met.
The landlord submits that the tenant referenced the lack of kitchen ventilation during an inspection on 20 March 2022 and the landlord installed kitchen ventilation 9 days later and before the compliance deadline. The landlord claims that the compliance statement was completed incorrectly due to human error.
In terms of the bathroom ventilation ducting, the landlord submits that the tenant did not give notice of damaged ducting and that even if he had access to the premises has been restricted by the tenant.
Since being granted possession of the premises, the landlord has had an opportunity to sight and repair the damage and the landlord submits that the damage appeared as though the ducting had been stabbed several time.
The ventilation standard requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The tenant has not convinced me that the landlord has breached the ventilation standard. The evidence is that there were extractor fans within the necessary time limits, that were externally ducted.
What the tenant has described in terms of the bathroom ventilation ducting is damage to the ducting. That is an issue of maintenance. The landlord is required to maintain the premises (see section 45(1)(b)) and failing to do so could lead to other claims in the Tribunal, but the tenant has not advanced any such claims here.
The tenant’s claim is dismissed. Lack of drainage
The tenant claims that the drainage from the guttering would release directly onto the ground and would often floor when it rained heavily. The tenant claims to have raise the issue with the landlord verbally. The tenant provided photographs of the outfall pipe. The tenants position is that there is a breach of the HHS.
The landlord’s position is that the downpipe had been damaged during the tenancy and not reported to them. They referred to photographs of the drainage system pre and post tenancy.
The relevant provision of the HHS requires that each tenancy building must have a drainage system that efficiently drains water to an appropriate outfall.
Having considered the evidence, I accept that it is more likely than not that the downpipe was damaged during the tenancy. Therefore, I do not consider this is a breach of the landlords HHS obligation per say, rather the issue falls into the maintenance category. To put it another way, the premises did have suitable gutters to remove water, but the gutter needed maintenance when it started leaking. Whilst the tenant claims that they raised the issue with the landlord, there is no evidence supporting that. The landlord cannot be responsible for failing to repair something they were not notified of.
The tenant’s claim is dismissed. Moisture ingress
The moisture ingress and drainage standard requires a ground moisture barrier when there is an enclosed subfloor space.
The evidence is that there is no ground moisture barrier. The landlord accepts that it has not complied with the HHS to that extent.
The result is that the landlord has breached the moisture barrier obligation and therefore the landlord has breached its obligations under the HHS.
The question then becomes, whether compensation or exemplary damages should be ordered.
In defence of the claim, the landlord advised that the tenants did not raise any complaints. It is not relevant that the tenants did not raise complaints with the landlord. The HHS provides a set of positive obligations on the landlord with the tenancy. The landlord has either provided a tenancy meeting the minimum standards or they have not. It is not expected that tenants chase up the landlord to comply.
The tenant has not presented me with any evidence that it suffered a loss as a result of the breach and so no compensation is payable.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
Taking into account the section 109 factors set out above, I consider it is more likely than not that the breach is intentional. The owner of the premises has significant experience in designing and building homes and should have of the deficiencies with the premises.
I do not accept that there has been a significant impact for the tenant. The tenant’s evidence was that the premises were cold and unpleasant to live in. It can be accepted that would have likely been contributed to by the absence of an underfloor moisture blanket.
There is a strong interest for tenants to live in residential tenancies that are warm, and dry, and the HHS is a key measure in which this expectation is achieved. There is a strong public interest that tenancies are healthy, and to a degree that applies to landlords in general.
I consider it would be just to make an order in this case.
The maximum level of exemplary damages for a breach of the landlord’s HHS obligations, is $7,200.00. In this case I have determined that a minimal order would be reasonable, taking into account that the tenant was not significantly impacted and might not have known of the breach if it had not been for the plumbers attendance at the premises. I therefore order exemplary damages be paid to the tenant of $500.00. Smoke alarms
The tenant claims that the smoke alarm provided by the landlord would repeatedly go off and so he purchased his own.
The landlord says that there was a smoke alarm in the premises and that the tenant removed it during the tenancy.
Section 45(1)(ba) of the RTA requires that landlords comply with all requirements in relation to smoke alarms made under section 138A. The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational.
This is the tenant’s claim to prove. The tenant’s evidence about the smoke alarm was confusing. I have carefully considered the photographs provided, and I can see evidence of a smoke alarm in the photographs. I am not persuaded by the tenant’s evidence that there has a breach and this claim is dismissed. Filing fee
Garry John Hooker has not substantially succeeded with the claims therefore I have not awarded suppression or reimbursed the filing fee. T Lee-Lewis 20 October 2023

Tenancy Tribunal case 4647529 — Exemplary damages at 804 Churchill Street, Akina, Hastings 4122

At a glance

Tenancy Tribunal case 4647529 — Exemplary damages at 804 Churchill Street, Akina, Hastings 4122

At a glance

Award balance

Claims & awards

Order

RELEVANT LEGAL CONSIDERATIONS

THE TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

RELEVANT LEGAL CONSIDERATIONS

THE TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions