What was Tenancy Tribunal case 4675789 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 4675789?

Property Damage: $5,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4675789?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4675789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9563976-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4675789 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 4675789?

Property Damage: $5,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4675789?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4675789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9563976-Tribunal_Order_Redacted.pdf.

7 Valpy Street, Saint Clair, Dunedin 9012 Tenancy Tribunal Case 4675789 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4675789 — net $5,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$5,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,520.44
Total payable by Landlord to Tenant	$5,520.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant name and identifying details.
Cutlers Limited as agent for Nicholas and Stephanie Bloor must immediately pay the tenant the sum of $5,520.44 calculated as per the table below:
The landlord must carry out the following work to the premises, which must be completed by 31 December 2023: a. Seal the painted windows in the lounge and main bedroom to stop the flaking of the lead based paint.

Reasons

Both parties attended the hearing.
The tenancy began on 18/12/2020 and was for a fixed term renewed annually. The term of the tenancy ends on 31/10/2023.

Has the landlord failed to comply with their obligations?

[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, among other matters, provide and maintain the premises in a reasonable state of repair and 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 the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
The tenant submitted that the paint on the single glazed windows in the lounge and main bedroom was flaking both on the inside and outside of the windows.
As a result, the tenant had to continually vacuum up the flaking paint, which they believed was a health hazard to themselves and their young children due to the paint being old and lead based.
The tenant was unhappy because this issue had first been raised with the landlord in September 2021 and had not been remedied.
In addition, the tenant felt that a year to repair the sliding door to the ensuite bathroom was too long and had contributed to mould and ventilation issues.
The landlord’s agent submitted that the owner did not believe the flaking paint was an issue but did not dispute that the paint was lead based.
The owner had asked two painters for opinions and received quotes to replace the windows and seal the lead based paint.
The landlord accepted that the sliding door had taken a year to fix because the owner had initially wanted their own tradesperson to do the work.
I find the landlord has committed unlawful acts by failing to remediate the health hazard caused by the flaking lead based paint and the lengthy delay in fixing the sliding door.
The health issues associated with old lead based paint have been apparent for many years, especially for young children and lead based paint is no longer used.
The landlord does not dispute the flaking paint is lead based.
I consider the landlord had an obligation to remedy the issue of the flaking paint in a timely manner.
In addition, the fixing of an ensuite sliding door should be a routine maintenance matter dealt with in a reasonable time frame.
This is supported by the fact that when the landlord finally arranged the repair it took only a few weeks, rather than the year the owner left the matter in abeyance.
Despite the fact that the tenancy is due to end in a week a work order has been made for remediation of the flaking lead based paint because of the health and safety issues involved for any future tenancy.
However, no alternative monetary order is available.

Should exemplary damages be awarded?

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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
I consider an inference can be drawn from the evidence that the landlord intentionally failed to maintain the premises in a reasonable state of repair.
This is evidenced by the fact that the owner does not dispute the existence of flaking lead paint but has refused over a period of two years to remedy the situation.
Further the owner, for whatever reason, chose not to have the sliding door fixed in a timely manner.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest I consider it just and fair to award exemplary damages.
As I consider the flaking paint is an issue of public health and safety, I find the breach is serious and have awarded exemplary damages at the higher end of the scale.
In doing so I have taken into account the comments of His Honour Judge Tuohy in Property Steward Limited v Tongshan Liu [2023] NZDC 17914 where he said: [14]I think it is fortunate that the order of the Tribunal was $3,000 rather than the maximum because this was carried out for purely financial reasons and, indeed, the landlord may see it as being worth the breach of the Act. The landlord may well have made more by breaching the Act than by suffering the award of exemplary damages. I think in the circumstances the landlord is fortunate that only $3,000 was ordered in that respect and not the higher maximum.
I have been unable to find any mitigating factors in the conduct of the owner.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these irrespective of financial circumstances.
As [The applicant/s] has succeeded with the claim I have awarded the filing fee.
Suppression is granted to the tenant under section 95A.

Claims and awards in Tenancy Tribunal application 4675789 — net $5,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$5,500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,520.44
Total payable by Landlord to Tenant	$5,520.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant name and identifying details.
Cutlers Limited as agent for Nicholas and Stephanie Bloor must immediately pay the tenant the sum of $5,520.44 calculated as per the table below:
The landlord must carry out the following work to the premises, which must be completed by 31 December 2023: a. Seal the painted windows in the lounge and main bedroom to stop the flaking of the lead based paint.

Reasons

Both parties attended the hearing.
The tenancy began on 18/12/2020 and was for a fixed term renewed annually. The term of the tenancy ends on 31/10/2023.

Has the landlord failed to comply with their obligations?

[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, among other matters, provide and maintain the premises in a reasonable state of repair and 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 the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
The tenant submitted that the paint on the single glazed windows in the lounge and main bedroom was flaking both on the inside and outside of the windows.
As a result, the tenant had to continually vacuum up the flaking paint, which they believed was a health hazard to themselves and their young children due to the paint being old and lead based.
The tenant was unhappy because this issue had first been raised with the landlord in September 2021 and had not been remedied.
In addition, the tenant felt that a year to repair the sliding door to the ensuite bathroom was too long and had contributed to mould and ventilation issues.
The landlord’s agent submitted that the owner did not believe the flaking paint was an issue but did not dispute that the paint was lead based.
The owner had asked two painters for opinions and received quotes to replace the windows and seal the lead based paint.
The landlord accepted that the sliding door had taken a year to fix because the owner had initially wanted their own tradesperson to do the work.
I find the landlord has committed unlawful acts by failing to remediate the health hazard caused by the flaking lead based paint and the lengthy delay in fixing the sliding door.
The health issues associated with old lead based paint have been apparent for many years, especially for young children and lead based paint is no longer used.
The landlord does not dispute the flaking paint is lead based.
I consider the landlord had an obligation to remedy the issue of the flaking paint in a timely manner.
In addition, the fixing of an ensuite sliding door should be a routine maintenance matter dealt with in a reasonable time frame.
This is supported by the fact that when the landlord finally arranged the repair it took only a few weeks, rather than the year the owner left the matter in abeyance.
Despite the fact that the tenancy is due to end in a week a work order has been made for remediation of the flaking lead based paint because of the health and safety issues involved for any future tenancy.
However, no alternative monetary order is available.

Should exemplary damages be awarded?

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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
I consider an inference can be drawn from the evidence that the landlord intentionally failed to maintain the premises in a reasonable state of repair.
This is evidenced by the fact that the owner does not dispute the existence of flaking lead paint but has refused over a period of two years to remedy the situation.
Further the owner, for whatever reason, chose not to have the sliding door fixed in a timely manner.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest I consider it just and fair to award exemplary damages.
As I consider the flaking paint is an issue of public health and safety, I find the breach is serious and have awarded exemplary damages at the higher end of the scale.
In doing so I have taken into account the comments of His Honour Judge Tuohy in Property Steward Limited v Tongshan Liu [2023] NZDC 17914 where he said: [14]I think it is fortunate that the order of the Tribunal was $3,000 rather than the maximum because this was carried out for purely financial reasons and, indeed, the landlord may see it as being worth the breach of the Act. The landlord may well have made more by breaching the Act than by suffering the award of exemplary damages. I think in the circumstances the landlord is fortunate that only $3,000 was ordered in that respect and not the higher maximum.
I have been unable to find any mitigating factors in the conduct of the owner.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these irrespective of financial circumstances.
As [The applicant/s] has succeeded with the claim I have awarded the filing fee.
Suppression is granted to the tenant under section 95A.

Tenancy Tribunal case 4675789 — Exemplary damages at 7 Valpy Street, Saint Clair, Dunedin 9012

At a glance

Tenancy Tribunal case 4675789 — Exemplary damages at 7 Valpy Street, Saint Clair, Dunedin 9012

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions