How much money was awarded in case 4655200?

Compensation: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4655200?

The dispute type was not classified.

Where can I read the official tribunal order for case 4655200?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9676623-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4655200?

Compensation: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4655200?

The dispute type was not classified.

Where can I read the official tribunal order for case 4655200?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9676623-Tribunal_Order_Redacted.pdf.

Unit/Flat 3, 20 Takutai Street, Parnell, Auckland 1052 Tenancy Tribunal Case 4655200 — Tenancy dispute

Q: What was Tenancy Tribunal case 4655200 about?

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

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4655200 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$500.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant name and identifying details.

Barfoot & Thompson Limited - City As Agent For Kim, Jungsun & Sigismondi, Marco Tracey Boyle must pay [The tenant/s] $520.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. Tracey Boyle and Shannon Garizio represented the landlord. A support person (boyfriend) accompanied the tenant.

The tenant sought compensation and exemplary damages. This is an application by one of three tenants. The other two did not partake in the application or hearing, they continue in the tenancy. A replacement tenant was found for this tenant after she left.

A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”

The parties engaged in mediation but failed to reach a mediated agreement.

The tenant produced an updated summary of claims after the mediation as part of a continuing effort to settle the matter. This has been adopted but edited to group the claims for determination. Total compensation now sought was $5,352.

The tenant also drafted a timeline as part of her submissions. That is condensed and recorded below for background and content. It is not the complete timeline as drafted: Timeline 14/11/2022. Move in date/received the keys. 15/11/2022. Began moving belongings in. 16/11/22. Noticed blood like stains, removed 5 spiders and noticed a cockroach cocoon from the bedroom. 19/11/2022. Garage flooding. Whilst the infestation issue was attempting to be rectified most of our belongings were still in the garage. 50% off the rent for the first week due to the flooding provided. 1/12/2022. Spider infestation/bugs still an issue. 6/12/2022. Tenant still not residing at the property 12/12/2022. Tradesman was supposed to have come to check the property for the spiders and hoover the dead ones from the walls/skiting boards etc. 20/12/2022. Landlord provided x3 insect automatic spray dispensers one for the garage, one for the living room and one for the bedroom. This lasted all of 3 weeks. The garage also began to smell strongly of wet and mould as did the cars when parked in the garage. $1,200 compensation from the landlord provided (based on four weeks rent). 9/01/2023. A follow up email was sent to landlord as spiders were still a problem. 10/01/2023 Tenant was advised pest control would be around to check again and look into another treatment. 20/01/2023. No contact from said fumigator. 21/01/23. Request break in tenancy. Landlord responds the owner was willing to accept 28 days’ notice (reluctantly) subject to no further cost to her. That was unacceptable to the tenants. The tenancy continued. 27/01/2023. The garage flooded again in the big Auckland flood. The same day the tenants requested a release from the tenancy. 29/01/2023 a flood team came out to the property to drain the water and ripped off skirting boards and some carpet in the garage and on the garage stairs. 1/2/2023. We flooded again, for a 3rd time. 8/02/2023. The drying process had not begun. 9/05/2023 The garage began flooding again for a 4th time. Insects were still a thriving issue. Plumber was appointed to come take another look at the garage. 7/7/2023. Landlord was requested to conduct a mould check. 31/07/2023. A tradesman arrived at the property from HRV to service/fix the vents the tenant bedroom. He advised there were no spiders but that there were rats in the ceiling. Tenant leaves the property. 7/08/2023. Notice to leave served on landlord. 11/08/2023. Landlord responded that she does not accept my 28 days notice 14/8/2023. Tenant application lodged with Tenancy Services. 28/8/2023. Tenancy ends (for the applicant)

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Tenant application

By the date of the hearing, the tenant had left so some of the initial application regarding a break in the fixed-term became moot.

It is well settled that, the landlord’s obligation under s 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under s 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.

The tenant sought compensation for damaged items: Due to flooding - $1,400 a. Sofa & sofa cushions $600.00 b. Photo frames $100.00 c. White cushion queen size bed frame $400.00 d. Wooden queen size bed frame $300.00 Due to mould - $885.00 (or fumigation - $70.00) a. Plant $70.00 (died in fumigation) b. Mirror $100.00 c. Brown heels $110.00 d. Black suede heels $95.00 e. Black Arizona Birkenstock sandals $200.00 f. Leather black handbag $100.00 g. Black leather heeled boots Mi Piaci $380.00 Rent

The tenant sought two amounts of rent refund (above what had already been provided by the landlord – a half week refund initially, $1,200 as a one-off compensation, and a reduction in her share of weekly rent to $283.00 from $300.00).

Firstly, rent reimbursement from 31 July 2023 from 25 August 2023. (The date she vacated the property and the rats were discovered in the bedroom ceiling) - $1,415.00.

Secondly, 20% of weekly rent since the second flood due to appropriate measures not being in place to restore the living conditions of the house after 27/01/2023 - $1482.00. Exemplary damages

The applicant also claimed for exemplary damages for the failure of the landlord to maintain the premises. Flooding

Flooding of the ground level was a problem during the tenancy. It was a historic issue that the landlord believed resolved before this tenancy. The ground floor comprised the garage, internal entrance and utility/bathroom room(s). The tenant occupied a bedroom on the top floor.

The premises was elevated from the street but had high ground behind it.

The tenant recounted four times that water entered the downstairs. It seems that excavation or such work on the hill behind the premises had altered the ground or subterranean water flow. One flooding event was after the installation of a ground vapour barrier which dispersed water in.

The tenant received a half-week rent as compensation after the first flooding event and the damage to the items in the garage. The landlord is entitled to the view that the tenant should have had contents insurance (the tenant wryly confirmed this is something she now has).

However, given the previous flooding history, the tenant may equally consider an entitlement to have been cautioned by the landlord regarding the history. Such knowledge may have meant they mitigated the risk. While the landlord stated she was 100% certain the previous cause of flooding had been resolved, I consider the subsequent flooding issues do not validate such certainty. The fact that the agent showing the premises appears unaware of the prior history is unfortunate and I believe Ms Boyle when she says she would have cautioned the tenants at entry if there herself.

I believe, the tenant not having content insurance notwithstanding, the damage to the items from the flooding might have been avoided or mitigated through a prior warning to the tenant of the risk. In the absence of this, I accept the tenant claim for further compensation (see below).

I make no further compensation orders regarding the further flooding and any related problems. Balancing the nature of such events, the remediation challenges, and the compensation already paid, I do not consider any further compensation to the tenant is due. Mould

The tenant claims mould was a problem. Photos were provided of areas of mould within the premises, as well as a number of items with mould that had been stored in one of the built-in storage spaces in her bedroom.

In Xiao and Zhao v Dong [2021 NZTT North Shore 4219619 at [26], the Adjudicator found that “generally, landlords will only be responsible for mould that arises in the course of a tenancy, if there were some defects with the tenancy, that the landlord would be responsible for. Some level of mould is a reality in residential dwellings, even dwellings that are well build, warm, ventilated and without defects”, deciding that the mould was not the responsibility of the landlord because “the tenants have no identified any pre- existing problem with mould at the start of the tenancy”, nor was there “evidence before the Tribunal that there is any defect with the structure of the building”.

The issues in Xiao differ from here but the commentary is a useful overview of some of the considerations an adjudicator must make when considering mould issues. The challenge here is the first flooding event during the first week of the tenancy. I consider that the issue of mould appears to have followed the flooding. The tenant was vigilant at the commencement of the tenancy, identifying spiders and cockroaches as the immediate issue. Mould or dampness does not appear to have been raised at that time.

Having considered the submissions and evidence, I do not find the tenant has been able to establish an evidential linkage from any mould to any illness she claims as a result. The photos do not show widespread mould throughout the premises, nor in her bedroom.

The items claimed as destroyed due to mould have not been replaced. Given a number of the items were leather, and the mould of limited coverage, I have some question as to why a repair strategy to wipe away the mould was not adopted, rather than dumping the items as the tenant said she did. Given some doubt regarding the extent of the damage, and the absence of any evidence of the actual loss through the replacement any of the items, I make no compensation order for mould damage to the items. The specific impact of any mould in the premises has been fairly compensated already.

I have no evidence to support it as more likely than not the fumigation caused any damage to the plant as claimed. Again, no receipt for any replacement was provided. That claim is dismissed. Pests

Spiders were an issue at the commencement, and ceiling rats at the end.

The tenant clearly struggled with the spiders and other pests at the premises. A photo of a spider bite on a shoulder is inconclusive.

The landlord appears to have taken the problem seriously and engaged pest control and provided insect spray dispensers. The effectiveness of the pest controller may have required further effort but the timeliness of the landlord in response appears reasonable.

The language used by the tenant to describe the problems indicate major infestations and impact. Unfortunately, the supporting photos do not evidence the same. This was raised by me at the hearing and I accept the tenant said she was more concerned with an exit but the absence of compelling evidence makes it difficult to assess the problem objectively, given the varying tolerance of people to spiders and such.

I do not find the landlord failed to attempt to address the spider issue. The elimination may not have been total but it is reasonable to expect tenants to have to deal with some such issues as encountered.

I do not find the extent of the spider problem, as claimed, has been evidenced. Given this, and the steps taken by the landlord, I make no orders regarding spiders (or related pests). I record the comment by another tenant, in a message to the landlord:

On or around 31 July 2023, the tenant claimed a rat issue in the ceiling led to her leaving. The prior animal noise heard by the tenant in that area was assumed by the tenant to be birds. The tenant confirmed there was no sign or smell of rat in her bedroom and it was only after being told by a contractor there were rats in the ceiling that she reacted.

I do not find the contractor advice, given the lack of any direct impact from rats prior, establish grounds for the tenant to effectively seek to leave the tenancy that same day. There was some subsequent discussion between the landlord and tenant regarding rat control and timings but that was moot as the tenant appeared to be of the mind to stay away and rather sought some offset of the rent she was still liable for. The landlord appeared ready to address the rat issue once informed. I do not make any order regarding the ceiling rat(s). Rent

There are two claims by the tenant.

Firstly, rent reimbursement from 31 July 2023 from 25 August 2023 after the tenant vacated the premises after being advised rats were in the bedroom ceiling. A total of $1,415.00 compensation was sought.

I have discussed the rat problem above. I have also considered the change in the tenant circumstances raised by the tenant at this time. She advised the landlord she was paying two rents and that “she was not in a position to be paying this as [she had] recently lost her job”. I have no evidence of her paying two rents as I understand she moved to her boyfriend’s house (where she had previously retreated to during the tenancy). It may she contributed to rent there but, if so, that was not stated.

I have already found the rat confirmation to not be sufficient grounds for the tenant to leave as she did. Given that, I find the rent liability that continued until 25 August 2023 remains. No rent rebate is awarded.

Secondly, 20% of the tenant’s weekly rent due to the conditions in the premises after the flooding on 27 January 2023. A total of $1482.00 compensation was sought.

The flooding or remediation caused other problems, such as the muddy driveway (diversion pipe) and mud residue downstairs. These have been considered as well.

As already mentioned, the landlord did provide some compensation and shelving was installed, preventing further damage as occurred after the first flooding. The landlord also incurred some further costs in the provision of a contractor for the removal of the tenants damaged items from the first event.

The four flooding events will have caused problems for the tenants. Not all events were localised and the widespread regional impact of the 27 January 2023 heavy rainfall and flooding in particular had far reaching consequences and out a strain on the available remediation resources in the area.

Having further considered the submissions and respective evidence, I do no find there are grounds for further rent compensation to the tenant for the flooding or related impacts. Failure to maintain

Breaching of s 45 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 do not find any grounds for any specific compensation or any unlawful act regarding any failure to maintain by the landlord have been established. The pest control activities appear responsive, and the flooding circumstances were not reasonably foreseeable. No other maintenance issue raised in this application or via the tenant notice to remedy are such that a different conclusion is reached for those.

The claim for exemplary damages is dismissed. Compensation

It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.

Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise, and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.

Clearly some things have gone wrong during this tenancy. Some were beyond the control of the landlord. Some compensation has already been provided.

Having considered the issues raised, and compensation provided to date, I consider the initial loss of items and impact on the tenant due to the flooding on, or around, 19 November 2023 were insufficiently compensated by the half-week of rent at that time. I award a further $500.00 towards the loss of possessions and impact on the tenant due to a lack of forewarning of the garage’s prior susceptibility to flooding. This sum balances the evidenced loss and subsequent mitigation attempts.

I do not find any further grounds for further compensation are established. This does not dimmish the obvious impact on the tenant of some of the issues, but rather that those impacts have not been directly attributed to any landlord failings that should attract significant orders from the Tribunal. Further, I have tried to separate issues and impacts raised by the other tenants who did not seek to join this application. The tenant application has been considered on its merits but the lack of other tenant’s engagement in seeking recourse through this application, and their continuation with the tenancy have also been considered (as have the reasons for this as submitted by the tenant). Application filing fee

While the tenant has not enjoyed the success she may have hoped for, I consider her application raised sufficient issues, and an order for compensation, that justify the application. I have therefore returned her application filing fee. Suppression

Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

The tenant requested suppression in her application. She has not been substantially successful in these proceeding so suppression by right is not available. However, there were valid issues raised and if not for the compensation to date, further success would have followed. I have also considered the use of my own initiative regarding suppression and after weighing the interests of the tenant versus any public interest I have decided publication of the tenant name should be suppressed this time as the nature of this application may adversely (and unfairly) impact any future tenancy applications.

I appreciate the patience of the parties given the delay in issuing this decision. This application came with respective submissions that were well constructed, and with considerable supporting evidence that required further contemplation.

Order

Claims and awards in Tenancy Tribunal application 4655200 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$500.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44