What was Tenancy Tribunal case 4719789 about?

The tribunal order states: Ihome Property Management Limited As Agent For Haowen Chen & Ning Feng

How much money was awarded in case 4719789?

Compensation: $2,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4719789?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4719789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9933057-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4719789 about?

The tribunal order states: Ihome Property Management Limited As Agent For Haowen Chen & Ning Feng

How much money was awarded in case 4719789?

Compensation: $2,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4719789?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4719789?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9933057-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4719789 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4719789 — net $3,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for loss of enjoyment of tenancy	$2,000.00	Compensation for loss of enjoyment of tenancy
Exemplary damages	$1,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,020.44
Total payable by Landlord to Tenant	$3,020.44

Order

Ihome Property Management Limited As Agent For Haowen Chen & Ning Feng Anna Dong must pay [The tenant/s] $3,020.44 immediately, calculated as shown in table below:
The application for a work order is withdrawn.

Reasons

Both parties attended the hearing. Three of the tenants appeared. Ms Dong represented the landlord. Background
The tenancy started on 6 February 2023 and ended on 4 February 2024.
During the tenancy the tenants experienced issues with mould, dampness and cold due largely to leaking under the floor, and inadequate ventilation in a bathroom.
The tenants seek a work order and compensation (a partial rent rebate) for their loss of enjoyment of the tenancy due to the mould, dampness and cold. They also seek exemplary damages for the landlord’s failure to ensure the premises complied with the Healthy Homes Standards (HHS) and/or failure to maintain and repair the premises.
At the hearing today the tenants withdrew the application for work orders as the tenancy has since ended.
I heard evidence from the parties, and I have also considered their documentary evidence as well as the submissions each made. Issues
The issues the Tribunal must determine are these: •Did the landlord fail to ensure the premises complied with the HHS and did it fail to maintain and repair the premises? If so, should the Tribunal award exemplary damages? •Should the tenants receive compensation for their loss of enjoyment of the tenancy? Legal considerations
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
The tenants’ compensation claim (expressed as a rebate of rent) is for the loss of enjoyment of the tenancy due to dampness, mould and cold caused by flooding under the floor and by the landlord’s failure to comply with all the HHS.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding whether to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Rent can only be abated when the premises are destroyed, or so seriously damaged, as to be uninhabitable in whole or in part. That was not the case here.
So, in a case such as this compensation is not calculated in terms of a rent rebate, but on an overall objective assessment by the Tribunal of the tenants’ loss of enjoyment based on the evidence presented.
Exemplary damages are different. They 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 of the Residential Tenancies Act 1986 (RTA).
In Birch the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Did the landlord fail to ensure the premises complied with the HHS and did it fail to maintain and repair the premises? If so, should the Tribunal award exemplary damages?
This case illustrates the difficulty the Tribunal can encounter when faced with alleged breaches of the HHS. The landlord had the premises assessed for HHS compliance. The report states that the kitchen and bathroom ventilation failed the standard for ventilation. All the other standards were assessed as compliant.
The tenants later had their own HHS assessment done. Their report states that the kitchen ventilation is compliant (which contradicts the landlord’s assessor’s opinion), but the bathroom is not.
Other standards assessed as compliant by the landlord’s assessor were assessed as non-compliant by the tenants’ assessor including the underfloor insulation standard, draught stopping, moisture ingress and drainage, and the absence of a ground moisture barrier.
There is no accreditation system for HHS assessors, nor does the RTA require a formal assessment.
On the evidence produced, it is therefore difficult for the Tribunal to make a finding of non-compliance other than for the bathroom ventilation which both assessors say is non-compliant.
The landlord took all reasonable steps to ensure HHS compliance and it was entitled to rely on the report it received. However, the bathroom ventilation standard was never properly addressed and the non-compliance with that standard was confirmed once the tenants’ HHS assessment was available.
This is both a failure to comply with the HHS and a failure to maintain or repair. However, those breaches are considered together, not as separate categories.
I find that the landlord committed an unlawful act by not addressing the bathroom ventilation standard assessed as non-compliant by both assessors.
I find that the section 109 RTA factors are met. I award the tenants exemplary damages of $1,000.00 for the landlord’s failure to act on the non-compliant bathroom insulation.
Non-compliance with that standard affected the tenants as the bathroom was damp and mouldy; it was against their interests; and it was against the public interest that the standard was not met.
I make no finding of non-compliance so far as the other standards are concerned because of the conflict in the two assessments. There is no reason for me to prefer one report over the other. As I have noted, the landlord reasonably relied on the HHS assessment it obtained.
It would have been prudent for the landlord to have sent the tenants’ assessment to the first HHS assessor for comment. But its failure to do so does not establish an intentional act so far as the conflict in the other standards is concerned.
That said, the landlord should now address the conflict in the reports. It should consider getting another assessment and making the two previous assessments available to the new assessor. Should the tenants receive compensation for their loss of enjoyment of the tenancy?
The tenants gave evidence that due to leaking under the floor which they noticed in August 2023, and the unventilated bathroom, they suffered a loss of enjoyment of the tenancy.
There were two rooms downstairs which became very damp and smelt strongly of mould. Mould is a recognised danger to health.
Although the landlord had the leaking issue assessed twice, the effects of the moisture remained.
In addition, the floor downstairs in the laundry became swollen with water. It took about one month for the problem to be rectified. The tenants said they experienced a lack of communication from the landlord about this issue, despite an inspection close to when the issue arose.
Unlike exemplary damages, compensation is not punitive. I accept that the landlord took actions to resolve the leaking issues even though there was a delay.
However, the evidence shows that the tenants experienced a loss of enjoyment of the tenancy from around August 2023 due to the leaking under the floor, and for a longer period due to the lack of ventilation in the bathroom. That loss of enjoyment was significant.
For this loss of enjoyment of the tenancy I award the tenants compensation of $2,000.00. Result
The landlord must pay the tenant $3,020.44 comprising exemplary damages of $1,000.00, compensation of $2,000.00, and the filing fee of $20.44. Name suppression
Both parties sought an order for name suppression. The tenants are entitled to an order as their application is successful. The landlord is not entitled to an order as its defence to the tenants’ application is not successful – see section 95A RTA. Comment
The bond remains at the Bond Centre pending a final inspection and resolution of a claim for water rates. If the parties cannot reach an agreement, the landlord will need to make an application for costs from the bond. It is premature for the Tribunal to make any bond order now.

Claims and awards in Tenancy Tribunal application 4719789 — net $3,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for loss of enjoyment of tenancy	$2,000.00	Compensation for loss of enjoyment of tenancy
Exemplary damages	$1,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,020.44
Total payable by Landlord to Tenant	$3,020.44

Order

Ihome Property Management Limited As Agent For Haowen Chen & Ning Feng Anna Dong must pay [The tenant/s] $3,020.44 immediately, calculated as shown in table below:
The application for a work order is withdrawn.

Reasons

Both parties attended the hearing. Three of the tenants appeared. Ms Dong represented the landlord. Background
The tenancy started on 6 February 2023 and ended on 4 February 2024.
During the tenancy the tenants experienced issues with mould, dampness and cold due largely to leaking under the floor, and inadequate ventilation in a bathroom.
The tenants seek a work order and compensation (a partial rent rebate) for their loss of enjoyment of the tenancy due to the mould, dampness and cold. They also seek exemplary damages for the landlord’s failure to ensure the premises complied with the Healthy Homes Standards (HHS) and/or failure to maintain and repair the premises.
At the hearing today the tenants withdrew the application for work orders as the tenancy has since ended.
I heard evidence from the parties, and I have also considered their documentary evidence as well as the submissions each made. Issues
The issues the Tribunal must determine are these: •Did the landlord fail to ensure the premises complied with the HHS and did it fail to maintain and repair the premises? If so, should the Tribunal award exemplary damages? •Should the tenants receive compensation for their loss of enjoyment of the tenancy? Legal considerations
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
The tenants’ compensation claim (expressed as a rebate of rent) is for the loss of enjoyment of the tenancy due to dampness, mould and cold caused by flooding under the floor and by the landlord’s failure to comply with all the HHS.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding whether to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Rent can only be abated when the premises are destroyed, or so seriously damaged, as to be uninhabitable in whole or in part. That was not the case here.
So, in a case such as this compensation is not calculated in terms of a rent rebate, but on an overall objective assessment by the Tribunal of the tenants’ loss of enjoyment based on the evidence presented.
Exemplary damages are different. They 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 of the Residential Tenancies Act 1986 (RTA).
In Birch the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Did the landlord fail to ensure the premises complied with the HHS and did it fail to maintain and repair the premises? If so, should the Tribunal award exemplary damages?
This case illustrates the difficulty the Tribunal can encounter when faced with alleged breaches of the HHS. The landlord had the premises assessed for HHS compliance. The report states that the kitchen and bathroom ventilation failed the standard for ventilation. All the other standards were assessed as compliant.
The tenants later had their own HHS assessment done. Their report states that the kitchen ventilation is compliant (which contradicts the landlord’s assessor’s opinion), but the bathroom is not.
Other standards assessed as compliant by the landlord’s assessor were assessed as non-compliant by the tenants’ assessor including the underfloor insulation standard, draught stopping, moisture ingress and drainage, and the absence of a ground moisture barrier.
There is no accreditation system for HHS assessors, nor does the RTA require a formal assessment.
On the evidence produced, it is therefore difficult for the Tribunal to make a finding of non-compliance other than for the bathroom ventilation which both assessors say is non-compliant.
The landlord took all reasonable steps to ensure HHS compliance and it was entitled to rely on the report it received. However, the bathroom ventilation standard was never properly addressed and the non-compliance with that standard was confirmed once the tenants’ HHS assessment was available.
This is both a failure to comply with the HHS and a failure to maintain or repair. However, those breaches are considered together, not as separate categories.
I find that the landlord committed an unlawful act by not addressing the bathroom ventilation standard assessed as non-compliant by both assessors.
I find that the section 109 RTA factors are met. I award the tenants exemplary damages of $1,000.00 for the landlord’s failure to act on the non-compliant bathroom insulation.
Non-compliance with that standard affected the tenants as the bathroom was damp and mouldy; it was against their interests; and it was against the public interest that the standard was not met.
I make no finding of non-compliance so far as the other standards are concerned because of the conflict in the two assessments. There is no reason for me to prefer one report over the other. As I have noted, the landlord reasonably relied on the HHS assessment it obtained.
It would have been prudent for the landlord to have sent the tenants’ assessment to the first HHS assessor for comment. But its failure to do so does not establish an intentional act so far as the conflict in the other standards is concerned.
That said, the landlord should now address the conflict in the reports. It should consider getting another assessment and making the two previous assessments available to the new assessor. Should the tenants receive compensation for their loss of enjoyment of the tenancy?
The tenants gave evidence that due to leaking under the floor which they noticed in August 2023, and the unventilated bathroom, they suffered a loss of enjoyment of the tenancy.
There were two rooms downstairs which became very damp and smelt strongly of mould. Mould is a recognised danger to health.
Although the landlord had the leaking issue assessed twice, the effects of the moisture remained.
In addition, the floor downstairs in the laundry became swollen with water. It took about one month for the problem to be rectified. The tenants said they experienced a lack of communication from the landlord about this issue, despite an inspection close to when the issue arose.
Unlike exemplary damages, compensation is not punitive. I accept that the landlord took actions to resolve the leaking issues even though there was a delay.
However, the evidence shows that the tenants experienced a loss of enjoyment of the tenancy from around August 2023 due to the leaking under the floor, and for a longer period due to the lack of ventilation in the bathroom. That loss of enjoyment was significant.
For this loss of enjoyment of the tenancy I award the tenants compensation of $2,000.00. Result
The landlord must pay the tenant $3,020.44 comprising exemplary damages of $1,000.00, compensation of $2,000.00, and the filing fee of $20.44. Name suppression
Both parties sought an order for name suppression. The tenants are entitled to an order as their application is successful. The landlord is not entitled to an order as its defence to the tenants’ application is not successful – see section 95A RTA. Comment
The bond remains at the Bond Centre pending a final inspection and resolution of a claim for water rates. If the parties cannot reach an agreement, the landlord will need to make an application for costs from the bond. It is premature for the Tribunal to make any bond order now.

Tenancy Tribunal case 4719789 — Exemplary damages

At a glance

Tenancy Tribunal case 4719789 — Exemplary damages

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