What was Tenancy Tribunal case 4749331 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $2,020.44 immediately, calculated as

How much money was awarded in case 4749331?

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

What type of tenancy dispute was case 4749331?

The dispute type was not classified.

Where can I read the official tribunal order for case 4749331?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9836385-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4749331 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $2,020.44 immediately, calculated as

How much money was awarded in case 4749331?

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

What type of tenancy dispute was case 4749331?

The dispute type was not classified.

Where can I read the official tribunal order for case 4749331?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9836385-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4749331 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4749331 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for inadequate insulation and poorly functioning heat pump	$2,000.00	Compensation for inadequate insulation and poorly functioning heat pump
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Order

[The landlord/s] must pay [The tenant/s] $2,020.44 immediately, calculated as shown in table below:
The application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing by phone. Background
The tenancy started on 10 April 2022, initially for a one-year term. The parties then entered another tenancy agreement for a fixed term tenancy from 10 April 2023 to 10 April 2025.
The tenant left the tenancy on short notice. In a decision on the landlord’s application for rent arrears, the Tribunal found that the tenancy ended on 4 July 2023. It awarded the landlord rent arears of $2,372.86.
On the same day the Tribunal made its order, the tenant filed this application.
There is a separate bond dispute between the parties because the Bond Centre paid the bond to the tenant. That issue has become the subject of a police complaint. It is not a matter before the Tribunal.
The tenant seeks compensation and exemplary damages for an alleged breach of the Healthy Homes Standards (HHS) and the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate part of the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, and for a failure to repair the heat pump. Issues
The issues to be determined are these: •Has the tenant proved that the landlord committed an unlawful act? If so, should the Tribunal award exemplary damages? •Should the tenant be awarded compensation? The evidence
Both parties gave oral evidence. The tenant described the effects of living in the premises without adequate insulation and with a poorly functioning heat pump. She also provided documentary evidence including photos.
The landlord gave oral evidence and referred to a written response to the tenant’s application. She produced evidence of the repair work she had had completed at the premises as well as photos and an inspection report. Has the tenant proved that the landlord committed an unlawful act? If so, should the Tribunal award exemplary damages?
The tenant considers that the premises were not adequately insulated because the floor space between the basement and the upper floor was only partly insulated.
The insulation requirements are complex. From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
The tenant produced photos which show some gaps in the insulation in the area referred to. However, she did not provide any evidence such as a HHS assessment that described whether there was a breach of the insulation standard and to what extent.
The Tribunal cannot speculate about possible breaches. There must be some objective evidence for it to decide about a failure to comply with the HHS.
Even if there was a breach by the landlord that amounts to an unlawful act, exemplary damages do not automatically follow.
In Birch v Otautahi Community Housing Trust [2020] NZDC 1667 the Court said this: 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.
The landlord said in evidence that they knew of the insulation requirements and sought advice from [Building supply company] about what they needed to do. They installed the insulation themselves.
I do not find that the landlord ‘turned their mind to the act and deliberately set about to commit it’. Instead, they acted by installing what they thought was adequate insulation. But it probably was not.
Without the necessary element of intention, the Tribunal cannot award exemplary damages.
The same applies to the tenant’s allegation that the landlord failed to maintain and repair the heat pump and HRV system.
The landlord produced evidence of the contractors they engaged to assess the heat pump (more than once) and the contractor who identified the fault with the HRV system.
I do not find that the landlord failed to maintain the premises. They acted on the tenant’s concerns. That it took time to identify the problem with the heat pump and then to replace it (the replacement heat pump was installed after the tenancy ended) does not prove a failure by the landlord that amounts to an unlawful act.
I therefore dismiss the tenant’s application for exemplary damages.

Should the tenant be awarded compensation?

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 tenant’s compensation claims are for the loss of enjoyment of the tenancy due to inadequate insulation and due to the poorly functioning heat pump (and then the HRV system).
In Birch 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.
Another relevant factor here is that the landlord paid the tenant compensation of $2,000.00 for her increased power bills for the period when the heat pump was not operating correctly.
The tenant sought a full refund of rent ($26,000.00) less an amount she owes in rent arrears (the subject of an earlier Tribunal order) and less a deduction in recognition of the landlord’s circumstances. In total she seeks compensation/exemplary damages of $15,000.00.
The tenant’s claim is unrealistic.
The tenant’s loss of enjoyment is for the premises being cold due to the inadequate insulation and the poorly functioning heat pump (and later the HRV system not properly working). She said the problem with the heat pump was for 4-5 months towards the end of the tenancy.
While the insulation was an issue for the duration of the tenancy which lasted about 15 months, the effects were not constant, but seasonal.
The $2,000.00 the landlord paid the tenant was for an actual loss – higher electricity costs. The payment recognises that the tenant suffered a loss.
In addition to that, I award the tenant $2,000.00 for the loss of enjoyment of the tenancy due to the premises being cold as a result of probably inadequate insulation and the poorly functioning heat pump. Even if the HRV system required only a minor repair, the tenant’s evidence was that it could not transfer heat from the area where the log burner was situated to the rest of the house due to the poorly functioning heat pump. Result
The landlord will pay the tenant $2,000.00 as compensation for the tenant’s loss of enjoyment of the tenancy due to inadequate insulation and the poorly functioning heat pump. The landlord will also pay the tenant’s Tribunal filing fee. Combined, the landlord will pay the tenant $2,020.44.
The Tribunal previously awarded the landlord $2,393.30 (rent arrears and the filing fee). The landlord said they had started enforcement action, so I cannot combine the orders.
The sensible approach would be for the parties to agree to off-set the orders with the tenant paying the landlord the difference. Otherwise, separate enforcement action for this order will ensue.
The landlord raised end of tenancy matters against the tenant. I explained that in the absence of an application, the Tribunal cannot consider the landlord’s claims. Name suppression
Both parties applied for name suppression orders. The tenant is entitled to an order because her application is successful. Ordinarily, the landlord would not be eligible for a name suppression order because she has been unsuccessful. However, there is an earlier Tribunal order in relation to the same tenancy that suppressed the landlord’s name. Unless I allow the landlord’s application for name suppression, the earlier order might be breached. So, I have suppressed the names and identifying details of both parties.

Claims and awards in Tenancy Tribunal application 4749331 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for inadequate insulation and poorly functioning heat pump	$2,000.00	Compensation for inadequate insulation and poorly functioning heat pump
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Order

[The landlord/s] must pay [The tenant/s] $2,020.44 immediately, calculated as shown in table below:
The application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing by phone. Background
The tenancy started on 10 April 2022, initially for a one-year term. The parties then entered another tenancy agreement for a fixed term tenancy from 10 April 2023 to 10 April 2025.
The tenant left the tenancy on short notice. In a decision on the landlord’s application for rent arrears, the Tribunal found that the tenancy ended on 4 July 2023. It awarded the landlord rent arears of $2,372.86.
On the same day the Tribunal made its order, the tenant filed this application.
There is a separate bond dispute between the parties because the Bond Centre paid the bond to the tenant. That issue has become the subject of a police complaint. It is not a matter before the Tribunal.
The tenant seeks compensation and exemplary damages for an alleged breach of the Healthy Homes Standards (HHS) and the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate part of the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, and for a failure to repair the heat pump. Issues
The issues to be determined are these: •Has the tenant proved that the landlord committed an unlawful act? If so, should the Tribunal award exemplary damages? •Should the tenant be awarded compensation? The evidence
Both parties gave oral evidence. The tenant described the effects of living in the premises without adequate insulation and with a poorly functioning heat pump. She also provided documentary evidence including photos.
The landlord gave oral evidence and referred to a written response to the tenant’s application. She produced evidence of the repair work she had had completed at the premises as well as photos and an inspection report. Has the tenant proved that the landlord committed an unlawful act? If so, should the Tribunal award exemplary damages?
The tenant considers that the premises were not adequately insulated because the floor space between the basement and the upper floor was only partly insulated.
The insulation requirements are complex. From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
The tenant produced photos which show some gaps in the insulation in the area referred to. However, she did not provide any evidence such as a HHS assessment that described whether there was a breach of the insulation standard and to what extent.
The Tribunal cannot speculate about possible breaches. There must be some objective evidence for it to decide about a failure to comply with the HHS.
Even if there was a breach by the landlord that amounts to an unlawful act, exemplary damages do not automatically follow.
In Birch v Otautahi Community Housing Trust [2020] NZDC 1667 the Court said this: 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.
The landlord said in evidence that they knew of the insulation requirements and sought advice from [Building supply company] about what they needed to do. They installed the insulation themselves.
I do not find that the landlord ‘turned their mind to the act and deliberately set about to commit it’. Instead, they acted by installing what they thought was adequate insulation. But it probably was not.
Without the necessary element of intention, the Tribunal cannot award exemplary damages.
The same applies to the tenant’s allegation that the landlord failed to maintain and repair the heat pump and HRV system.
The landlord produced evidence of the contractors they engaged to assess the heat pump (more than once) and the contractor who identified the fault with the HRV system.
I do not find that the landlord failed to maintain the premises. They acted on the tenant’s concerns. That it took time to identify the problem with the heat pump and then to replace it (the replacement heat pump was installed after the tenancy ended) does not prove a failure by the landlord that amounts to an unlawful act.
I therefore dismiss the tenant’s application for exemplary damages.

Should the tenant be awarded compensation?

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 tenant’s compensation claims are for the loss of enjoyment of the tenancy due to inadequate insulation and due to the poorly functioning heat pump (and then the HRV system).
In Birch 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.
Another relevant factor here is that the landlord paid the tenant compensation of $2,000.00 for her increased power bills for the period when the heat pump was not operating correctly.
The tenant sought a full refund of rent ($26,000.00) less an amount she owes in rent arrears (the subject of an earlier Tribunal order) and less a deduction in recognition of the landlord’s circumstances. In total she seeks compensation/exemplary damages of $15,000.00.
The tenant’s claim is unrealistic.
The tenant’s loss of enjoyment is for the premises being cold due to the inadequate insulation and the poorly functioning heat pump (and later the HRV system not properly working). She said the problem with the heat pump was for 4-5 months towards the end of the tenancy.
While the insulation was an issue for the duration of the tenancy which lasted about 15 months, the effects were not constant, but seasonal.
The $2,000.00 the landlord paid the tenant was for an actual loss – higher electricity costs. The payment recognises that the tenant suffered a loss.
In addition to that, I award the tenant $2,000.00 for the loss of enjoyment of the tenancy due to the premises being cold as a result of probably inadequate insulation and the poorly functioning heat pump. Even if the HRV system required only a minor repair, the tenant’s evidence was that it could not transfer heat from the area where the log burner was situated to the rest of the house due to the poorly functioning heat pump. Result
The landlord will pay the tenant $2,000.00 as compensation for the tenant’s loss of enjoyment of the tenancy due to inadequate insulation and the poorly functioning heat pump. The landlord will also pay the tenant’s Tribunal filing fee. Combined, the landlord will pay the tenant $2,020.44.
The Tribunal previously awarded the landlord $2,393.30 (rent arrears and the filing fee). The landlord said they had started enforcement action, so I cannot combine the orders.
The sensible approach would be for the parties to agree to off-set the orders with the tenant paying the landlord the difference. Otherwise, separate enforcement action for this order will ensue.
The landlord raised end of tenancy matters against the tenant. I explained that in the absence of an application, the Tribunal cannot consider the landlord’s claims. Name suppression
Both parties applied for name suppression orders. The tenant is entitled to an order because her application is successful. Ordinarily, the landlord would not be eligible for a name suppression order because she has been unsuccessful. However, there is an earlier Tribunal order in relation to the same tenancy that suppressed the landlord’s name. Unless I allow the landlord’s application for name suppression, the earlier order might be breached. So, I have suppressed the names and identifying details of both parties.

Tenancy Tribunal case 4749331 — Tenancy dispute

At a glance

Tenancy Tribunal case 4749331 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenant be awarded compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenant be awarded compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions