Published tribunal order
Tenancy Tribunal case 4647549 — Exemplary damages
Decided 3 Oct 2023 · Published 3 Oct 2023 · Application 4647549
- Exemplary damages
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the Tenant name and identifying details.
- Comprende Real Estate Limited As Agent For Maciej Zimny must pay [The tenant/s] $270.44 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing. This tenancy started in August 2021 and ended in August 2023. In the last two weeks of the tenancy the tenant realised that the heater provided by the landlord was not a qualifying heater as required by the Healthy Homes Standards. He is also concerned that there were draughts coming from the entry door to his apartment. I allowed the tenant to amend his application at the hearing to include a claim for exemplary damages. The landlord waived its right to proper notice of the claim so the matter could be dealt with without an adjournment. I was satisfied this was fair because the landlord had all the information required for the hearing anyway.
- The claim relating to the draught stopping was dismissed at the hearing. The landlord was not informed about the draught during the tenancy and so was not given the opportunity to investigate. Also, the draught was down one side of a fire door, and it seems unlikely that draught stopping could be applied to a fire door.
- There is a claim the heater did not comply. The landlord has obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
- The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. The HHS does provide exemptions in specific circumstances, and there are two relevant exemptions to the heating standard for this apartment. The first is that an electric heater is an acceptable heater if the body corporate will not allow the landlord to install a heat pump. Secondly, if the required heating capacity of the living room is greater than 2.4 kW then the landlord must install at least one qualifying heater with a heating capacity of at least 2kW. See Regulation 32 HHS.
- I accept the landlord’s evidence that the body corporate will not allow heat pumps in this apartment complex. I also accept their evidence the heater provided had a 2.4kW capacity.
- Regulation 9(1)(a) states that the heater must be “installed as a fixture to the premises”. It is agreed evidence the apartment has had a free standing electric heater in the main living area since the tenancy started. The exemptions in regulation 32 to do not modify the wording of regulation 9(1) HHS. This means the electric heater must be installed as a fixture. I find the free standing heater did not comply with the HHS. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) RTA.
- 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 interest of the other party, and the public interest. See section 109(3) RTA.
- The landlord provided me with documentation which shows an electrician was instructed to install a fixed wall heater before this tenancy started. The electrician made a mistake and provided the wrong information to the landlord. This information was used to complete the HHS statement in the tenancy agreement. The landlord submitted that it should have checked the heater, or at least noticed that it was not wall mounted during inspections. It apologised for the error. There does not seem to be much effect on the tenant, because the heater provided heated the apartment adequately. If fact, it was only when the heater stopped working that he noticed the draught from the fire door. He submitted the landlord had been deceitful, but I am not persuaded by the evidence that was the case. There is tenants/public interest in landlords complying with the HHS. I allow a small amount of exemplary damages. There will be a reason Parliament decided that qualifying heaters should be installed as a fixture, and there is merit in ensuring landlords are penalised if they have heaters which do not comply. Other orders
- The landlord should reimburse the filing fee because the tenant is the most successful party.
- I have used my discretion to allow name suppression for the tenant because the tenant has been the most successful party.