What was Tenancy Tribunal case 4652331 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4652331?

Compensation: Doctor Fee: $56.00 awarded to tenant; Compensation: Envirowaste: $49.50 awarded to tenant; Property Damage: $87.16 awarded to tenant; Compensation: Rent Refund: $4,050.00 awarded to tenant; Compensation: Storage Expense: $180.00 awarded to tenant; Compensation: Trailer Hire: $74.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4652331?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4652331?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9475804-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4652331 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4652331?

Compensation: Doctor Fee: $56.00 awarded to tenant; Compensation: Envirowaste: $49.50 awarded to tenant; Property Damage: $87.16 awarded to tenant; Compensation: Rent Refund: $4,050.00 awarded to tenant; Compensation: Storage Expense: $180.00 awarded to tenant; Compensation: Trailer Hire: $74.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4652331?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4652331?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9475804-Tribunal_Order_Redacted.pdf.

101 Selwyn Crescent, Forrest Hill, Auckland 0620 Tenancy Tribunal Case 4652331 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4652331 — net $6,017.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Compensation: Rent refund	$4,050.00	Rent refund
Exemplary damages	$1,500.00	Exemplary damages
Compensation: Storage Expense	$180.00	Storage Expense
Compensation: Trailer hire	$74.00	Trailer hire
Compensation: Light replacement	$87.16	Light replacement
Compensation: Envirowaste	$49.50	Envirowaste
Compensation: Doctor fee	$56.00	Doctor fee
Net award	$6,017.10
Bond	$2,780.00
Total payable by Landlord to Tenant	$6,017.10

Claims and awards in Tenancy Tribunal application 4652331 — net $6,017.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Compensation: Rent refund	$4,050.00	Rent refund
Exemplary damages	$1,500.00	Exemplary damages
Compensation: Storage Expense	$180.00	Storage Expense
Compensation: Trailer hire	$74.00	Trailer hire
Compensation: Light replacement	$87.16	Light replacement
Compensation: Envirowaste	$49.50	Envirowaste
Compensation: Doctor fee	$56.00	Doctor fee
Net award	$6,017.10
Bond	$2,780.00
Total payable by Landlord to Tenant	$6,017.10

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant names and identifying details.
The Bond Centre is to pay the bond of $2,780.00 ([Bond number suppressed]) to [The tenant/s] immediately.
Barfoot & Thompson Property Limited As Agent For Zhu & Guan Ltd must pay [The tenant/s] $6,017.10 immediately.
The landlord’s cross application is dismissed.

Reasons

Both parties attended the hearing. One of the tenants was assisted by two court- appointed sign language interpreters.
The tenancy began on 18 November 2022 and concluded on 28 May 2023 as a result of a mediation agreement. The tenants claim as follows:
The tenants claim that there were serious shortcomings with the premises from the very beginning of their tenancy. They say that the biggest issues were moisture and drainage. The downpipes were in urgent need of replacement and property was not in an acceptable state of cleanliness and repair.
The tenants further claim that in May this year their clothing and shoes were covered in mould. The property manager attended to inspect the mould. It is claimed by the tenants that there was no follow up by the property manager.
The dishwasher was not working properly when they moved in. There were also lights which were not working and light bulbs and light covers missing. The heat pump had mould in the filter and the stove was not functioning properly. The rangehood was not clean.
A technician attended at the property to service the dishwasher approximately two weeks after the tenants moved in. When the dishwasher was removed the dishwasher cavity was filthy and the area covered in rodent droppings.
The extractor fan in one of the bathrooms worked in the beginning but then stopped working. A second Healthy Home assessment confirmed that this bathroom extractor fan should never have been assessed as compliant by the original assessor.
The moisture barrier had been installed incorrectly and out of three smoke alarms one was not working.
The tenants had to live with anxieties caused by a lack of healthy home compliance coupled with moisture and drainage inadequacies. There were back- and-forth discussions with the landlord to try and resolve these concerns.
The tenants stated that the house was making them physically ill and forcing them to discontinue while still being liable for the outgoings. On 16 April 2023 one of the tenants returned to live at home with family while still paying rent for over a month, well before mediation was set on 28 April 2023 when an early termination date of 28 May 2023 was agreed.
The tenants stated that there were a number of deficiencies with the property at the very start of the tenancy, namely a number of missing light fixtures, defective light bulbs, an old-style push-in MCB surface-mounted electrical sub-board in the storeroom which was exposed. The tenant organised replacement of all light bulbs and sent the invoice to the property manager. The dishwasher did not work. The tenant says that a technician attempted to fix this on 23 January 2023 however was still unresolved. Some parts of the stove did not work, and the rangehood was covered in mould, grease, and other unknown substances. On 11 January 2022 the tenant complained that the heat pump required servicing to rid the mould. The tenants say that this was investigated by the landlord on 17 January 2023 but not resolved.
On 20 November 2022 the tenant also complained that the smoke alarms were not functioning or maintained.
The tenants say that the landlord failed to hand over the property in a reasonable state of cleanliness, leaving them to investigate and attempt to remedy the issues themselves.
There were rubbish bins damaged, mildew and mould on moisture barrier surfaces, rubbish and other items from the previous tenancy such as chairs, toys, nails on driveway, and dirty diapers. The tenants stated that the property manager attended and collected some of the rubbish.
On 18 November 2022 the tenants complained that the exterior of the oven, stovetop, extractor fan, toilets, curtains and dishwasher were covered in mould, grease, and grime. These issues were not properly addressed by the landlord which resulted in a further complaint on 19 and 23 January 2023 by the tenants.
The tenants say they found mould growth on the backing of the curtains even after the landlord said they would be cleaned or replaced. The tenants were forced to remove them. They notified the landlord of this. They also had to have this issue escalated to the office manager. The tenants were advised to clean all of the curtains at their own expense. The tenants rightly hold the view that this should have been done prior to move in day. The landlord suggested that the tenants clean them and seek reimbursement accordingly.
On 25 November 2022 the landlord notified the tenants that they would have to find curtains to replace the ones contaminated and would be reimbursed. Email exchanges went back and forth until 1 December when the tenants’ obtained measurements and curtains to replace the old ones only for the landlord to come back advising that the owner will purchase replacement curtains through a different company. The tenants state that was just one example where they have had to use their own time and effort to get the property up to a liveable standard where it should have been done in the first place. They did not get replacement curtains until around mid-December.
The tenants further stated that elevated moisture levels were found to exist in one of the bedrooms resulting in paint peeling and dampness. Along with this the second Healthy Home assessment also identified microbial growth around the door and windowsills of the second bedroom. Although never fully identified, the tenants believe that this is the reason for the growth of mould found on the bedroom floors and clothes despite ventilating the bedroom and having a dehumidifier running to remove the excess moisture. They also say that this damaged some of their furniture.
The tenants further claim that the landlord failed to maintain the guttering and pipes, notwithstanding verbal agreements that they would be cleaned and fixed before moving in. Furthermore, there were extractor fan issues, the moisture barrier sub-floor was not connected to foundations properly as confirmed in the second Healthy Homes assessment report on 27 February 2023. Previous blockages and overflows caused by a complete block were investigated and cleansed, but they were unable to continue their service because some areas required replacement. The tenants say that attempts were made to organise it, but it was not given priority, even after the Auckland severe weather event.
On move in day, the main window in the lounge was not secured and broken. The tenants say that it was not repaired properly because cyclone Gabrielle had resulted in the window fully breaking off which required the window to boarded up with wood, and a small gap allowing cold draughts to enter for the next three months of cold winter. This was finally repaired on move out date of 28 May 2023.
One of the tenants say that the condition of the property had a negative impact on her health as a result of the dampness and mould. She says that this is associated with an increase in both respiratory infections and acute bronchitis. This diagnosis was confirmed on 24 January 2023 and 7 August 2023.
The tenants also claim compensation for expenses incurred as a direct result of the condition of the property along with a partial refund of the rent paid. The landlord’s response and cross application:
The landlord claims that the tenants did not leave the property in a reasonably clean and tidy condition at the end of the tenancy.
The tenants responded by stating that the top-up cleaning and carpet washing claimed by the landlord should be at their expense given that there were prior carpet stains throughout the house. The tenants state that they left the property in a better condition than they found it.
The landlord states that on 18 November 2022 they advised the owner to do a top up clean following a request from the tenants.
On 22 November the landlord arranged for gutter cleaning and water blasting for the two decking areas. The landlord also provided a copy of an email dated 24 January 2023 received from the property services company advising that the “gutters were mostly clear except over the master bedroom where one of the small decks are. The down pipe on that part of the spouting is blocked. Seems to possibly be blocked all the way to the ground. Can’t be sure without having to cut it, then repair it. This will be causing the water to overflow. We recommend referral to our roofing team.” The landlord sent a work order to Endeavour the same day. This was cancelled on the same day when advice was received stating that the job should be undertaken by a drainage company.
The landlord further stated that they consulted with different contractors between 10 February and 10 March. The job of unblocking the drain did not begin until 28 March and was finally completed on 19 April 2023.
On 11 January 2023 the tenants complained that the roller door for the toilet was not working properly. The landlord met the builder onsite on 14 January. The landlord says that the job was completed.
On 14 January the heat pump was serviced, and a receipt provided confirming this.
On 19 January the tenants reported that the sliding door had not been installed back properly.
On 20 January the landlord issued a work order to an electrician in respect of the garage wiring. Electrician attended on 23 January and at the same time attended to the faulty ensuite extractor fan.
On 20 January a work order was issued in respect of the dishwasher and oven. The technician attended on 23 January and replaced a damaged drain hose. He also noted that there was a hole behind the dishwasher which required the urgent services of a builder. The technician’s invoice confirmed that the dishwasher hose had been damaged by rodents. The oven was tested on 8 February 2023.
On 7 February a work order was sent to Smoke Alarm Testing Services. This work order was for a yearly maintenance.
On 14 February the tenants reported that a window had been damaged because of high winds. A work order was sent the same day.
On 23 March the tenants reported that the oven had stopped working. This appeared to be an issue with the oven timer and was resolved over the phone.
The landlord provided a written schedule confirming the various dates between 11 October 2022 and 22 May 2023 where work took place as noted by the following invoices: 11 October 2022 Carpet cleaning 20 November Change ceiling light 28 November Cleaning 1 December Replace aerator 16 January Repair toilet roller door 17 January 2023 Clean sliding door trail 23 January Garage wiring and ensuite extractor fan 24 January Gutter cleaning and water blasting 31 January Curtain replacement 10 February Smoke alarm service 11 February Oven and dishwasher service 14 February Heat pump service 15 February Board up broken window frame 16 February Unlock garage door 9 March Mould test 1 April Patch hole and garage lock (Y and H Construction) 19 April Unblock downpipe 15 May Repair soffit 22 May New window frame.
The landlord also claims compensation for a failed visit by All Clear on 31 January 2023. The tenants were informed of the fee by the property manager. One of the tenants communicated to the landlord on the day, explaining her unawareness due to being ill in bed and being hearing impaired. The tenant did not hear anything when they arrived and has asked for the fee to be waived. Analysis and Findings:
Based on the evidence provided it is my view that the landlord has failed to provide the premises in a reasonable state of cleanliness and repair prior to the tenants moving in.
The most serious is the leaking into a bedroom in the property. This was likely to have caused or exacerbated health problems for the tenant who occupied that room. The dampness, mould and carpet smell could have been avoided had a thorough search for the leak been carried out.
It was found during a more thorough search after the tenancy ended, but this was too late to alleviate the problems it caused for one of the tenants. The breaches affected the discomfort and inconvenience to all the tenants. I agree with the tenants in that concern for one brings about frustration to all when a failure to properly maintain is apparent.
There are other areas where maintenance was not carried prior to the start of the tenancy. These included guttering and downpipe repairs, repairing windows where there were significant gaps and repairing windows that could not be fixed in an open position. I acknowledge the Healthy Homes assessment report obtained on 2 June 2021 however it was not until the tenants demanded a second Healthy Homes assessment by a different company that the true state of the property was confirmed. The evidence confirms that the first Healthy Homes assessment was completely inadequate.
I have also sighted an email dated 10 May 2023 sent by the father of one of the tenants to the landlord. His email is deeply critical of the way the tenancy has been managed. His concern for the health and wellbeing of his daughter is palpable. Exemplary Damages:
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide the premises in a reasonable state of cleanliness provide and maintain the premises in a reasonable state of repair comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health and safety
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied that the failure to provide the premises in a satisfactory condition at the start of the tenancy was intentional. The evidence confirming that the property was not ready to rent is abundantly clear. Most of these issues should have been addressed prior to the tenants moving into the property. And because of this the landlord was constantly on the back foot reacting to requests for repairs and maintenance rather than being proactive prior to the start of the tenancy.
Where problems are known but there is a failure to remedy, the unlawful act is intentional. There has been significant publicity about Healthy Home standards which a diligent landlord could be expected to know about. The effect of the failure to maintain significantly affected the tenants’ enjoyment and possibly the health of one of the tenants. It is in the public interest that landlords comply with the law relating to tenancies so that living conditions for tenants are healthy and safe.
The landlord’s cross application is dismissed. In my view the tenants have provided a valid excuse in respect of the fee for the failed visit by All Clear on 31 January 2023. In all the circumstances it would be most unreasonable to enforce payment of such a fee.
The landlord’s application for top up cleaning has no merit and is also dismissed. Rent Reduction:
Given the findings I have made after hearing and seeing the evidence I am awarding the tenants a partial rent refund. The rent refund starts from the start of the tenancy on 18 November when they advised the landlord in writing of the problems until the conclusion of the tenancy on 28 May 2023. I have calculated that as 27 weeks in total.
I am reducing the rent by $150.00 per week. The tenants have had some benefit from residing at the property and so should pay some rent. However, the landlord has deliberately turned a blind eye on their obligations at the beginning of the tenancy by failing to provide the property in a reasonable state of cleanliness and repair. Compensation for expenses incurred by tenants:
I allow the tenants’ expense claims as set out in the table above. I am satisfied that these claims are a direct result of the issues associated with this property during their tenancy. I have also sighted evidence in support of these claims.
The claims in respect of medication for $29.36 and milage of $35.60 and compensation for a candle related burn are dismissed as the evidence does not support these claims.
Because the tenants have substantially succeeded with the claim, I must reimburse the filing fee.

Tenancy Tribunal case 4652331 — Exemplary damages at 101 Selwyn Crescent, Forrest Hill, Auckland 0620

At a glance

Tenancy Tribunal case 4652331 — Exemplary damages at 101 Selwyn Crescent, Forrest Hill, Auckland 0620

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions