What was the outcome of Tenancy Tribunal case 4718049?

The tribunal order states: Udy Realty Limited As Agent For A & J Lloyd must pay Ruby Paull and Adam

How much money was awarded in case 4718049?

Compensation: $400.00 awarded to tenant; Cooktop Reimbursement: $1,000.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Rent Arrears: $834.86 awarded to landlord

What type of tenancy dispute was case 4718049?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4718049?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9793682-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4718049?

The tribunal order states: Udy Realty Limited As Agent For A & J Lloyd must pay Ruby Paull and Adam

How much money was awarded in case 4718049?

Compensation: $400.00 awarded to tenant; Cooktop Reimbursement: $1,000.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Rent Arrears: $834.86 awarded to landlord

What type of tenancy dispute was case 4718049?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4718049?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9793682-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 61 Glamorgan Drive, Torbay, Auckland 0630 Tenancy Tribunal Case 4718049 — Rent arrears

Claims and awards in Tenancy Tribunal application 4718049 — net $765.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$834.86		Rent arrears
Heat pump compensation		$400.00	Heat pump compensation
Cooktop reimbursement		$1,000.00	Cooktop reimbursement
Exemplary damages - Insurance		$200.00	Exemplary damages - Insurance
Total award	$834.86	$1,600.00
Net award	$765.14
Total payable by Tenant to Landlord	$765.14

Claims and awards in Tenancy Tribunal application 4718049 — net $765.14 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$834.86		Rent arrears
Heat pump compensation		$400.00	Heat pump compensation
Cooktop reimbursement		$1,000.00	Cooktop reimbursement
Exemplary damages - Insurance		$200.00	Exemplary damages - Insurance
Total award	$834.86	$1,600.00
Net award	$765.14
Total payable by Tenant to Landlord	$765.14

Order

Udy Realty Limited As Agent For A & J Lloyd must pay Ruby Paull and Adam Heatlie $765.14 immediately, calculated as shown in table below.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlords and tenants. I will set out the claims and the relevant background for each below.
Both parties appeared at the hearing today

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court 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.

LANDLORDS CLAIMS

Rent arrears

The landlord has applied for an order that the tenant pay rent arrears, and seeks a termination on the basis of the arrears.
The landlord has provided the Tribunal with a rent ledger, showing the rent arrears as of 21 December 2023 is $834.86. The landlord seeks an order that the tenant pay that sum.
The tenant agrees there are arrears owing into the $700.00 mark, but she did not consider that she owed the amount set out in the rent ledger.
As I explained to the tenant at the hearing, the RTA requires that landlord keep business-like records (section 30), and that normally when the landlord produces a proper rent ledger (which the landlord has done), the Tribunal will accept that record is accurate unless the tenant can show otherwise, or there is some obvious problem with that ledger. In this case I cannot see any clear error with the accounting, and neither has the tenant proven an error to arise.
Therefore I accept the landlords rent ledger as accurate, and order the tenant pay rent arrears to the sum of $834.86. Termination of tenancy
The landlord has applied for an order terminating the tenancy on the basis that the tenant has failed to comply with rent arrears breach notices.
As I advised the landlord, this claim must be dismissed for the simple reason that there is no application before the Tribunal for a termination of the tenancy. This is not an application which has been served on the tenant, that being the case, the application is dismissed.

TENANTS CLAIMS

The tenant brings four broad claims which I will consider in turn. Ethics and professionalism
The tenant seeks orders alleging that the landlord has acted unethically and unprofessionally. I do not reach any finding on that matter, but have declined this claim for the reason that the tenant has not identified what legal obligation arises from which I could make any order.
There is no provision in the RTA which I can see, nor which the tenant has identified, from which this claim can be based.
The tenant submitted that there is a breach of tort law. The Tenancy Tribunal does not have jurisdiction to make orders for pure breaches of tort law. The law of tort gives a right of action to a person against another person who acts in breach of a duty or right imposed or conferred by law, rather than by agreement or contract. For example, a person entitled to possession of land (such as a tenant) has a claim in the tort of trespass against a person (for example, a landlord) who enters the land without right. Under the law of tort, a tenant can therefore bring a claim in trespass against a landlord. Although this is a dispute between a landlord and tenant relating to a residential tenancy, the Tribunal’s jurisdiction only extends to making orders “in accordance with” the RTA. Section 77 of the RTA confirms that the Tribunal has, “subject to the Limitation Act 2010, jurisdiction to determine in accordance with this Act any dispute that [exists between a tenant and landlord]”.
The Act does not directly provide for enforcement of a claim under the tort of trespass (or any other tort), only for analogous tenant rights such as vacant possession, quiet enjoyment and put limits on a landlord’s rights of entry to tenancy premises. But those are expressly stated in the RTA. In the exercise of jurisdiction by the Tenancy Tribunal under the RTA, a tenant has to make out the requirements for a claim under the relevant sections of the Act, not the tort of trespass for example. A party’s rights in tort are therefore not relevant to claims in the Tribunal. So the Tribunal cannot consider if there has been some tort breach as it relates to ethics and professionalism.
The High Court has confirmed that the Tribunal cannot adjudicate applications which are moot or academic. In the decision of Body Corporate 375933 v Tenancy Tribunal [2017] NZHC 1619), Justice Williams explained: [14] It has long been the case that the Courts (at least) will not answer “purely abstract questions in anticipation of an actual controversy”, whether in future negotiations or court action. This principle was reiterated relatively recently in Omaha Beach Residents Society Inc v Townsend Brokers, in which the plaintiff sought clarification of the effect of a restrictive covenant. O’Regan P found: [T]he courts will normally decline as a matter of discretion to issue a declaration in a case in which the factual context is either hypothetical or a prediction of future events. [15] Although both cases occurred in the context of a formal application for declaratory relief under the Declaratory Judgments Act 1908, the principle is broadly applicable and referable to the use of scarce court time, as well as the limited role of the courts in our system of law and government, a subject to which I will return below. [16] There is no reason, in my view, to consider that the Tenancy Tribunal is in any different position to the ordinary courts in the respects described by McCarthy P and O’Regan P. Mr Grieve’s claim to the Tenancy Tribunal must be taken at face value. Since there are no other extant proceedings between these parties, the claims (b) and (c) lodged by the second defendant in this case, can only be taken to be moot.
Because I cannot make any orders around ethics and professionalism, this claim must be dismissed. Heat pump
The tenant says that during the tenancy the heat pump failed when a heavy rain around March this year, got into to the external heat pump unit, which caused it to fail, and caused a shock to the tenant. The tenant states the landlord was contacted and a contractor attended. The tenant says that while strictly the heat pump was repaired, but that she was not prepared to use it because she deems it to be unsafe. The tenant said that Ms Goodrick advised it would be replaced, but it was not.
Ms Goodrick advised that the contractors did attend the premises, and a decision was made to put in an insurance claim to have the heat pump replaced. The landlord said that the insurer has not yet processed the claim. The landlord confirmed that no compensation has been provided.
It is apparent therefore that the landlord accepts that the heat pump is damaged and requires replacement, if that were not the case, then presumably a claim would not have been filed with the landlords insurer.
As I explained at the hearing, some level of compensation should be provided to the tenant for the heat pump not working for these reasons. a. Firstly the tenant was paying rent for premises with a working heat pump, and the landlord was not providing that working unit. b. Secondly the landlord is required by law to provide a heat pump, this is required in the Healthy Homes Standards regulations. c. Thirdly when the original heat pump failed, the landlord was required by the RTA to have it fixed or replaced, that falls within the landlords statutory duty to maintain the premises.
At the hearing I noted that it is not a defence for a landlord to point to delays, and to simply blame the insurer for not acting soon enough. The above obligations sit with the landlord, not the insurer.
The more difficult question is determining what a fair level of compensation should be. I have taken into account that some level of rent compensation would be due, and I can accept the tenants evidence that she needed to use a more expensive form of heating, which I will accept would be more expensive to operate than a heat pump – but then I must also take into account that had the tenant had a heat pump that was safe and effective, that she would have incurred power costs for that. The tenant suggested that the compensation should be around half her power bill, which I consider to be unreasonably high.
But I am also minded that the RTA requires that a party who has suffered a loss, must take reasonable steps to mitigate their loss. Section 49 confirms that: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
Reasonable steps could have included an earlier application to the Tribunal, or working with the landlord to secure a more economical heating source.
When I step back and consider the application in the round, I consider a fair level of compensation for the broken heat pump, over the period of time since March, would be $400. Unlawful entry
The tenant states that around the 19 th of October the landlord attended the premises and was seen at the gate, and the landlord advised her that there was an inspection that day. The tenant says that she did not receive a notice for the inspection, and that the landlord said there was a problem with the server. The Tenant agrees that the landlord did not come into the premises. The tenant considers the inspections are too frequent. The inspection occurred the following day with consent,
For the reasons given at the hearing, this claim must be dismissed.
Section 48 of the RTA sets out the landlords right of entry, and confirms that the landlord is able to enter the premises to undertake inspections, following notice, no more frequently than every four weeks. In this case the tenant accepts that the inspections have not been more frequently than every four weeks, and acknowledges that aspect of the claim could not succeed.
But there is another problem for the tenant, and that is section 48(7) which confirms that reference in that section to ‘premises’ “does not include land or facilities”. What that means, is that the landlord must give notice to enter premises, meeting for example the house, but the landlord does not need to give notice in order to come onto the land, which is the situation here. I can see that the landlord disputes that notice was not given, but even if notice had not been given, the landlord has not breached any obligation to the tenant. Cook top
The tenant states that during the tenancy the cook top broke. The tenant has provided a photograph which show an older model glass cooktop surface which has broken. The tenant states that she was told that the insurance excess was $1,000.00 which she paid. The tenant is concerned that the tenancy agreement recorded that there was no insurance. The tenant said that she was cooking scallops at Christmas, and was shaking the pan and in the process hit the glass top breaking it. The tenant does not consider that the damage was caused carelessly.
The landlord advised that during an inspection the landlord found that the cooktop was broken, and the tenant said she dropped a pot on it. The landlord says that the cooktop was not broken prior, and replaced with a similar model. The landlord considers the damage was careless damage.
With any claim for compensation, to receive an order the party must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred.
The two matters for the Tribunal to consider under this claim, relates to whether the tenant was liable to pay the thousand dollar replacement cost for the cooktop, and secondly whether the landlord has complied with their obligations around the insurance statement. Liability for damage
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
In this case I have no reason not to accept the tenants evidence, that the damage occurred when she was cooking, and flipping or moving scallops around in the pan, which in the process caused the pan to hit the glass surface. In my view, that damage would be classed as accidental damage, but it would not be careless damage. What the tenant was doing, was a largely standard cooking action, the tenant was not reckless. So while I accept the damage is not fair wear and tear, I accept that the tenant has proven that the damage was not caused carelessly. That means the tenant is not liable for that damage.
While it is the case that the tenant had agreed to pay the $1,000.00 excess to the landlord, and that was paid, that is not the end of the matter. Section 11 of the RTA confirms that a tenant cannot contract out of the terms of the tenancy agreement, and that means if the tenant agreed to pay for the cooktop replacement, and she was not liable for it, she cannot be held to pay that amount to the landlord. Finding as I do that the tenant was not liable for the payment of the cooktop, I direct that the $1,000.00 be repaid to the tenant immediately.
I record for completeness, that even if I determined that the damage was careless, it is almost certain I would have ordered that some of the money be refunded. The tenant is only liable for the landlord’s actual loss, which is the depreciated loss. Taking into consideration the apparent age of the cooktop in the photograph, I could not accept that the depreciated value of that cooktop would be $1,000.00 Insurance statement
The next issue relates to the insurance statement. The tenancy agreement records that there was no insurance held by the landlord, which the property managers at the hearing confirm was wrong, and that insurance is held for the property.
Section 13A of the RTA relates to the content of tenancy agreements, and confirms that the agreement must set out a range of information including information about the insurance position. Section 13A(2) holds: (2) The landlord must include in the tenancy agreement the following information about insurance of the premises: (a) if the premises are not insured, a statement that they are not insured; and (b) if the premises are insured, a statement— (i) setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii) informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or 66J(5)).
The evidence favours a conclusion that the landlord has not complied with this obligation, in fact the information that was provided was false or misleading to the extent that the landlord stated there was no insurance, when in fact there was.
Section 13A(1F) confirms that failure to comply with subsection 2 is deemed to be an unlawful act, meaning exemplary damages can be ordered.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
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.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for a breach in relation to insurance statements is $750.00.
I note the District Court decision of T.M.T New Zealand Limited Trading as Strata Property Management v Kirk Liam Sweeney and Anne-mette Holmgard Sundahl [2021] NZDC 16182. In that case the landlord had failed to provide an insurance and healthy homes compliance statement. The Court held that: The obligation to provide these documents are fundamental obligations on landlords of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequence for the unlawful acts involved by claiming ignorance of the law.
The Court upheld the Tribunal’s order of $200.00 exemplary damages for the failure in that case.
In the case before me, I have no reason to conclude that the breach was anything other than an intentional breach. The insurance situation must be well known by the landlord, and of such importance that the property manager at the time, and the landlord should have recorded the information correctly in the tenancy agreement. However I do accept that the breach has been of limited extent in this case, because of anything the tenant has been misled to believe that her liability would be more than it actually is, as she would be availed of the protections available for careless damage. But there is otherwise a strong interest for tenants, landlord, and the public generally, that tenancy agreement to be robust and accurate. I consider would be just to make an order, and like the approach taken in TMT above, I consider an order of $200.00 exemplary damages would be reasonable.

Tenancy Tribunal case 4718049 — Rent arrears at Unit/Flat 1, 61 Glamorgan Drive, Torbay, Auckland 0630

At a glance

Tenancy Tribunal case 4718049 — Rent arrears at Unit/Flat 1, 61 Glamorgan Drive, Torbay, Auckland 0630

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions