What was Tenancy Tribunal case 4760938 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 4760938?

Compensation: Failure To Maintain: $1,000.00 awarded to tenant; Property Damage: $1,800.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4760938?

The primary dispute was State of repair. Related themes: Exemplary damages, Healthy homes.

Where can I read the official tribunal order for case 4760938?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9968247-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4760938 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 4760938?

Compensation: Failure To Maintain: $1,000.00 awarded to tenant; Property Damage: $1,800.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4760938?

The primary dispute was State of repair. Related themes: Exemplary damages, Healthy homes.

Where can I read the official tribunal order for case 4760938?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9968247-Tribunal_Order_Redacted.pdf.

Unit/Flat 14, 80 Kent Terrace, Mount Victoria, Wellington Tenancy Tribunal Case 4760938 — State of repair

Claims and awards in Tenancy Tribunal application 4760938 — net $6,970.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain	$1,000.00	Failure to maintain
Exemplary damages: Failure to maintain	$2,400.00	Failure to maintain
Exemplary damages: Failure to lodge bond	$1,000.00	Failure to lodge bond
Exemplary damages: Failure to provide HHS compliance statement in tenancy agreement	$750.00	Failure to provide HHS compliance statement in tenancy agreement
Exemplary damages: Contracting to contravene or evade the RTA provisions	$1,800.00	Contracting to contravene or evade the RTA provisions
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,970.44
Total payable by Landlord to Tenant	$6,970.44

Claims and awards in Tenancy Tribunal application 4760938 — net $6,970.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain	$1,000.00	Failure to maintain
Exemplary damages: Failure to maintain	$2,400.00	Failure to maintain
Exemplary damages: Failure to lodge bond	$1,000.00	Failure to lodge bond
Exemplary damages: Failure to provide HHS compliance statement in tenancy agreement	$750.00	Failure to provide HHS compliance statement in tenancy agreement
Exemplary damages: Contracting to contravene or evade the RTA provisions	$1,800.00	Contracting to contravene or evade the RTA provisions
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,970.44
Total payable by Landlord to Tenant	$6,970.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant names and identifying details.
Property Management Wellington Limited must pay [The tenant/s] $6,970.44 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing with Mr Simon Cook, property manager, representing the landlord.
The tenants have filed an application seeking compensation and exemplary damages in respect of the following claims against the landlord: a. Failure to repair a leak at the premises and maintain them in a reasonable state of repair; b. Failure to lodge the bond with the Bond Centre within the required time; c. Failure to provide a signed statement in the tenancy agreement that provides information regarding compliance with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS) which the landlord is required to provide under section 138B(5) Residential Tenancies Act 1986 (RTA) (“the HHS compliance statement”); and, d. Contracting to contravene or evade the provisions of the RTA.
The tenancy agreement was signed by the tenants on 15 February 2022. The tenancy was for a fixed term starting on 25 February 2022 and ending on 20 February 2023. The parties then signed an agreement on 22 December 2022 to renew the tenancy for a further fixed term ending on 20 February 2024. The tenants paid a bond on 16 February 2022.
Claims for exemplary damages under section 109 RTA, must be made within certain time limits. An application for exemplary damages in relation to a failure to lodge the bond or to keep records in respect of bonds must be made no later than 12 months after termination of the tenancy. For any other unlawful act, an application must be made no later than 12 months after the commission of the unlawful act (see s109(2)(b) RTA).
The tenants’ applications for exemplary damages regarding the failure to maintain the premises and failing to lodge the bond have been made within the time limits stipulated in s109.
I also find that the tenants’ applications for exemplary damages regarding the landlord’s failure to provide an HHS compliance statement, and for entering a tenancy agreement that contravenes the RTA, have also been made within the time limits. While the application to the Tribunal is dated 8 December 2023, it has been lodged within 12 months of the agreement to renew the lease for a further fixed term. The renewal agreement was offered and accepted by the tenants on the same day, 22 December 2022, and the renewal period runs from 21 February 2023 to 20 February 2024. The renewal agreement recorded that aside from the new fixed term period, the terms of the tenancy would remain the same. Not updating the terms and conditions that the tenants claim contravene the RTA in the renewal agreement would be a fresh unlawful act. Not providing an HHS compliance statement in the renewed agreement would also be a fresh unlawful act.

Has the landlord failed to maintain the premises in a reasonable state of repair?

The tenants claim that the landlord has breached their obligations under s45(1)(b) RTA which states that a landlord must provide and maintain the premises in a reasonable state of repair. The tenants also claimed that this was a breach of the landlord’s obligations to comply with the HHS. However, there was no evidence to establish a breach of the HHS and I consider the claim is correctly dealt with under s45(1)(b) RTA.
It is well settled that, the landlord’s obligation 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 s40(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.
Breaching these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See s45(1A) and Schedule 1A RTA.
The premises are a three-bedroom flat on the ground floor of a six-storey apartment building. The tenants reported a reasonably large ingress of water through a light fixture in the ceiling and through another part of the ceiling in one of the bedrooms between midnight and 1am on 17 November 2023. Initially, there was a steady stream of water which then subsided and became an intermittent drip. The tenants tried to mitigate the damage by collecting the water in pots, but the carpet got wet. They also contacted the Fire Service who attended and removed the light fitting from its socket but could not find the source of the leak. They could not access the first floor of the building (which only allows access with a key code) to check whether water was coming from the upstairs flat. Once the leak had subsided to a drip, the tenant using the room left the premises to stay elsewhere.
The landlord (both the director of the landlord company, Mr Craig Relph, and Mr Cook) visited the premises on 17 November and the apartment directly above to check for any water leak. Mr Cook says they could not identify any problem in the upstairs flat. Some months previously, a fault with the upstairs tenants’ washing machine had caused a leak into these premises, although the leak entered the kitchen not the bedroom. Due to that history, Mr Cook says it was reasonable to assume that some similar incident had occurred. Therefore, the landlord concluded that it was likely that the upstairs occupants had done something to cause a leak which had now stopped (because there was no water coming into the bedroom of these premises when he visited). Therefore, the landlord concluded there was no need to call a plumber to investigate.
Further leaking through the bedroom ceiling occurred and was reported by the tenants again on 17 November between 9-10pm and on Sunday 19 November. The landlord attended the property on 20 November and maintained that this had also been caused by the upstairs tenant who advised that they had flooded their bathroom directly above the affected bedroom and had pushed the excess water through the overflow drain. Therefore, the landlord advised that a plumber would not be engaged. Subsequently, the tenants reported further intermittent leaking and, on 20 November also served a 14-day notice on the landlord to remedy the problem.
The landlord arranged a contractor to dry out the carpet in the affected bedroom.
The tenants continued to report ongoing leaks to the landlord and asked for a fix. The landlord advised the tenants on 1 December that they were trying to arrange a plumber. A plumber finally attended on 5 December 2023 and cut a hole in the ceiling to access the cavity near the leaking.
The tenants emailed the landlord on 5 December after the plumber attended. They recorded the plumber’s advice that there was faulty plumbing and mould in the ceiling cavity where the leak was present. The tenants asked the landlord to confirm when the repairs and remedial work to patch the hole in the ceiling would be completed. Mr Cook said that he would check and respond. However, it was not until 11 December that he advised the tenants by email that the repair work had all been completed on 5 December. The landlord asked the tenants to advise if there had been any further leaking since then so that the hole in the ceiling could be remediated. The tenants confirmed that there had been no further leaking since 5 December. Subsequently, the hole was repaired. The landlord advised at the hearing that the leak was caused by a poor seal on the shower waste in the bathroom of the upstairs flat.
There is no dispute that some further minor intermittent leaking occurred in the same bedroom ceiling area again on 3 January, 18 January, and 11 February 2024. The landlord engaged the same plumber to visit on 10 January who was unable to detect the source without opening the ceiling and, therefore, the landlord asked that the tenants monitor the situation. The tenancy is about to end, and no further steps have been taken by the landlord to further investigate and repair the leak at this stage. However, Mr Cook acknowledges that the leak will need to be addressed.
The tenant occupying the affected bedroom says that the landlord’s failure to fix the leak, and the time taken to complete the initial repairs, is unreasonable and a breach of their obligations. As a result, he has not lived at the premises since 17 November because he cannot use the bedroom. He says that it is uninhabitable, and he should not be expected to use a room that is subject to unpredictable and intermittent leaks. Because of the leaks (even though infrequent) the tenant cannot live in and use the bedroom in the normal manner. He says that the leak should be treated as one continuous event since 17 November and compensation awarded accordingly. He seeks reimbursement of one third of the rent paid for the premises from 17 November until the tenancy ends on 20 February 2024.
Mr Cook submits that the landlord addressed the first leak on 17 November in a reasonable time and complied with the 14-day notice. He says that the leaking in 2023 which was fixed by 5 December should be treated as a separate event from the leaking in 2024, rather than one continuous problem. He also maintains that apart from the first leaking incident, the leak has been minor; has caused minimal impact on the tenant occupying the bedroom; and that the room has never been uninhabitable. Findings and remedies
After carefully considering the evidence and oral submissions of the parties, I find that the landlord has breached its obligations and failed to address the leak in a reasonable time-frame. I consider the delay between the initial leak on 17 November and engaging a plumber on 5 December, was unreasonable. I am not persuaded that a leaking washing machine incident caused by previous tenants in the upstairs flat several months before this leak justified an assumption that new tenants in that flat likely had a similar incident, so that no plumber was required to investigate. The previous incident was also in a different area. My finding is further supported by the fact that the landlord did not detect any water or leaking in the above flat when they visited on 17 November. While the landlord also says that the upstairs tenant admitted to flooding the bathroom floor a few days later, these tenants continued to report ongoing leaks well after that event.
While the landlord complied with the period given in the 14-day notice for the initial leaking, that does not mitigate their failure to act more promptly. A landlord is required to fulfil their obligations, regardless of whether a tenant issues a 14-day notice. The 14-day notice process is a last resort compel action from the landlord. Compliance with a 14-day notice does not mean the landlord has necessarily discharged their obligations under the RTA.
The landlord is also in breach of its obligations to investigate the further leaks reported in 2024. The landlord says that the plumber cannot identify the source without opening the ceiling. Given reports of further leaks, I consider the landlord should instruct the plumber to open the ceiling to investigate. It is not reasonable to do nothing.
This Tribunal has ruled in previous cases that as a general proposition a leak is a serious matter and must be repaired promptly. Leaks go to the very essence of a tenant’s right to the use and enjoyment of the premises in consideration of the rent that the tenant pays. A leak is not a mere inconvenience; it can create an undesirable and unhealthy living environment. That being said, I accept that the leak appeared to be fixed on 5 December, although the landlord did not advise the tenants of this until 11 December after they asked for confirmation. Therefore, I accept that the bedroom was able to be occupied in the normal manner at least from 11 December. In relation to the leaks in 2024, I accept that they have been infrequent and minor. There was no evidence of mould occurring inside the bedroom or other serious consequences.
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; there are no general or absolute rules for calculating the amount of compensation, but the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party. Having regard to all relevant factors, I assess that an award of $1,000 is justified for the period from 17 November until 11 December, when the landlord confirmed the leak had been fixed, and for the subsequent minor leaks in 2024.
The landlord’s breach is also an unlawful act. 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 s109(3) RTA.
Taking those factors into account, I conclude that exemplary damages should be awarded for the following reasons: a. I am satisfied that the landlord has acted intentionally in failing to instruct a plumber to investigate the cause of the leak sooner than they did and failing to take any steps in 2024 to investigate the continuing leak, other than instructing the tenants to monitor. Despite reports of leaks, no steps have been taken as of the hearing date to open up the ceiling area and investigate the cause; b. The effect of the unlawful act is that the tenants have put up with the leaking which is both inconvenient and can be the cause of an unhealthy living environment for tenants; c. The tenants have a strong interest that defects affecting the home for which they are paying rent are investigated and repaired in a reasonable time period. d. There is a strong public interest that landlords comply with their obligations under the RTA.
The maximum award for exemplary damages for a breach of this nature is $7,200. I have decided that an award of $2,400 (33% of the maximum) is justified to mark disapproval. of the landlord’s conduct. The conduct has occurred over a short period of time and the problem appeared to be fixed for just under a month. However, the failure to address the second wave of leaks is an aggravating feature. Failure to lodge the bond
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See s19(1) RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See s19(2) and Schedule 1A RTA.
The landlord did not lodge the bond with the Bond Centre within the required time. The bond was paid on 16 February 2022 but not lodged by the landlord until 11 July 2022. The tenants were not aware of the delay until they received notice of the lodgement from the Bond Centre. The tenants seek exemplary damages for the breach.
Mr Cook explained that the landlord suffered a “clerical issue” with their system which affected many bonds. The payment system timed out and the bonds were not paid to the Bond Centre. When asked why it took 5 months to correct the issue, Mr Cook was unable to give an explanation, noting that he has only been employed by the property management company since September 2023, but he understood that there were problems with staff managing the landlord’s portfolio of properties. He indicated when making submissions at the hearing, that he was largely relying on information provided by Mr Relph, in relation to events that occurred prior to his appointment. He submitted that there was zero impact on the tenants because the bond was proactively lodged during the tenancy.
The tenants drew my attention to two other Tribunal cases in which tenants have claimed exemplary damages against this landlord for failing to lodge bonds.
In the first case under application 4342442 the landlord received a bond payment in February 2022 which was not lodged until May 2022. The landlord, represented by its director Craig Relph, said that non-lodgement was an oversight, and he described a problem with automatic payments such that they did not realise the bond was not lodged. The Tribunal ruled in its decision dated 18 July 2022: “I have decided not to order exemplary damages on this occasion. I have accepted that there was no intent to commit the unlawful act and the tenant has not been adversely affected by this error. However, the landlord needs to ensure that they have robust systems in place that ensure reconciliation of funds held and in bank accounts with the rent accounts held for tenants. A further breach of the obligations in section 19 is likely to lead to an order for exemplary damages.”
In the second case under application 4442702, the bond was paid in February 2022 but was not lodged with the Bond Centre until August 2022. Craig Relph said at the hearing that the bond was lodged within 23 working days, but the Bond Centre’s online process failed which was a well-known problem. The Tribunal did not accept his submission in the absence of any supporting documentation from the Bond Centre or the landlord’s office to show the online process. Mr Relph said it was not possible to provide proof that the payment had been attempted. The Tribunal ruled in its decision dated 15 February 2023: “Lodging the bond is a fundamental responsibility, and there should be office procedures in place to check the process has worked......I allow exemplary damages in the amount of $1,000. This reflects the seriousness of a breach by such an experienced landlord and gives the landlord credit for lodging the bond during the tenancy.”
I am satisfied that the landlord’s failure to lodge the bond in this case is an unlawful act. 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 s109(3) RTA.
As with the abovementioned cases, the landlord failed to lodge the bond paid in February 2022. However, in each case, the landlord has advanced varied reasons for the breach. The 18 July 2022 decision also referred to a problem with the landlord’s system which meant the bond paid in February 2022 was not lodged until May 2022. In this case the bond paid in February 2022 was not lodged until July 2022. This indicates that if there was a clerical error with the landlord’s payments system, it occurred more than once and took several months to rectify. That is not good enough. The landlord is a professional landlord that evidently manages over 600 tenancies. They should have robust systems in place and where failures occur, they should be rectified promptly. It is inexcusable to claim that a system error has not been picked up sooner and has resulted in a five-month lodgement delay.
I find the failure by this landlord to lodge the bond when due was intentional because they failed to ensure there are robust systems in place to lodge and account for bonds paid. It is in the tenants’ interests that bond money is held securely by an independent party and it is in the public interest that landlords comply with their obligations. I award $1,000 exemplary damages. This reflects the seriousness of the breach but gives the landlord credit for lodging the bond during the tenancy.

Has the landlord contracted to contravene or evade the RTA?

The tenant alleges that the landlord required them to make an agreement which is contrary to their rights under the RTA.
Section 137(1) RTA provides that no person may enter into any transaction, contract or arrangement, or do anything: a. that contravenes, or will contravene, any provision of the RTA; or b. for the purpose, or having the effect of, evading, defeating, or preventing the operation of any provision of that Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $1,800.00. See s137(2) and Schedule 1A RTA. Factual background
There is no dispute that the tenancy agreement prepared by the landlord and presented to the tenants for signing on 15 February 2022, and the renewal agreement dated 22 December 2022, contains two clauses 9 and 40 which contravene several sections of the RTA as follows: a. Sections 24(1)(d) & (e) regarding permitted frequency of rent increases— the tenancy agreement states reviews may not take place within 180 days of the start date of the tenancy or a previous rent increase. However, as of 28 January 2021, s24 provides that rent may not be increased within 12 months of the start date of the tenancy or a previous rent increase; b. Sections 60A and 60B(2) regarding notice required to renew a tenancy— the tenancy agreement requires the tenant to give at least 60 days’ notice prior to the end of the fixed term of their intention to vacate the premises or extend their tenancy for a further term. However, as of 11 February 2021, tenants are only required to give notice of their intention to end, renew or extend the fixed term no later than the 28 th day before the fixed term expires. If tenants wish to stay, they are not required to give any notice to the landlord and the fixed term will automatically roll into a periodic tenancy; c. Section 48(3) regarding notice required for landlord entry—the tenancy agreement provides that upon the tenant giving notice to end the tenancy on the expiry of the fixed term, the landlord may show the premises to potential tenants between 9am and 7pm, Monday to Saturday, on giving not less than 4 hours’ notice. However, there is no fixed notice period in the RTA, but the landlord must have the prior consent of the tenant. A tenant is not required to consent to the entry and can withhold consent if there are reasonable grounds for doing so, or can make reasonable conditions; d. It was also not disputed that the landlord failed to include with the tenancy agreement a current HHS compliance statement in breach of section 13A(1CA)(b) RTA.
The tenants claim that when they signed this tenancy agreement on 15 February 2022, the landlord was on notice of the above breaches but failed to provide a correct tenancy agreement. The tenants drew my attention to a relevant Tribunal decision concerning similar breaches under application 4453805 dated 16 August 2023 (“the 2023 decision”) which should be read in conjunction with this decision.
The 2023 decision reveals that prior to entering this tenancy, the landlord’s tenancies were investigated by the Ministry of Business, Innovation and Employment (MBIE) Tenancy Compliance Investigation Team (TCIT). The TCIT investigator issued an improvement notice on 18 January 2022 in relation to five specific tenancies and all other affected tenancy agreements across the landlord’s portfolio. The investigator found that the landlord was in breach of the same RTA provisions outlined in paragraph 36 above. This resulted in an application to the Tribunal by the Chief Executive of MBIE for exemplary damages against the landlord for failing to comply with the improvement notice in breach of section 126J RTA (the MBIE proceedings”).
The 2023 decision sets out the provisions of the improvement notice highlighting the above contraventions and the investigator’s recommended steps for compliance as follows:
1. The steps that I recommend you take to comply with the provisions of the Act, regulations made under the Act, or a tenancy agreement are:
1.1. Provide current tenants with a Healthy Homes Standards compliance statement showing the current level of compliance of their rental property;
1.2. Include a Healthy Homes Standards compliance statement in any new tenancy agreement;
1.3. Advise all affected tenants of the changes to the terms of their current tenancy agreements relating to clauses 9 and 40;
1.4. Update the terms of any new tenancy agreements to reflect current legislative requirements relating to the relevant sections of the Act listed in section 2.1;
2. If you can remedy the contravention properly by taking different steps, you do not have to take the recommended steps noted above. You do however need to remedy the breach(s).
The notice required the landlord to remedy the contravention by 15 February 2022.
The 2023 decision provides a full analysis of the landlord’s tenancy agreements before the Tribunal and how they contravene sections of the RTA. (See paragraphs 32-64 of the decision). The tenancy agreement and the renewal agreement in this case contains the same clauses as those identified in the improvement notice which contravene the RTA.
The 2023 decision records the Tribunal findings that the landlord did not comply with the improvement notice by 15 February 2022, and nor had the landlord complied with the notice by the hearing date of 5 July 2022. (See paragraph 68 of the decision.) The Tribunal awarded exemplary damages of $2,000 against the landlord citing several factors which justified making an award. Findings and remedies
There is no dispute, and I find, that clauses 9 and 40 of this tenancy agreement and the renewal agreement contravene provisions of the RTA. I find the inclusion of those terms in the tenancy agreement and the renewal agreement misled the tenants about their rights under the RTA. The effect of entering the tenancy agreement and the renewal agreement with these clauses was to directly or indirectly defeat or evade the provisions of the RTA which is a breach of s137(1) RTA, and the landlord has committed an unlawful act.
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 against whom the unlawful act has been committed, and the public interest. See section 109(3) RTA.
I invited Mr Cook to address the matters the Tribunal must consider before awarding exemplary damages and, in particular, whether the landlord’s breach of s137(1) was intentional. He submitted as follows: a. He has been engaged by the landlord since September 2023. He is auditing the tenancies and taking steps to fix the problems and correct the landlord’s tenancy agreements; b. The landlord is now using an industry standard tenancy agreement which complies with the RTA; c. None of the incorrect clauses in this tenancy agreement were activated during the tenancy, suggesting that this mitigates the breach; d. There was little the landlord could do about past problems and breaches, although he also asked during the hearing whether the Tribunal had any recommendations as to how the landlord could “bulk remedy” the situation in relation to tenancies still operating under old tenancy agreements containing the same incorrect clauses. While the matter of remedial action the landlord should take is not an issue before me, I suggested that at the very least the landlord ought to advise all tenants under those agreements that the clauses are not valid and advise them of the applicable provisions. I also suggested that up to date HHS compliance statements should be provided without delay. What is striking is that the compliance notice issued by TCIT on 18 January 2022 (reproduced in the 2023 decision at paragraph 4) already made similar recommendations to the landlord. e. The Tribunal has already effectively taken into account the impact of the breaches on tenants when awarding exemplary damages in the 2023 decision.
The tenants’ view is that the landlord’s actions are intentional. Not only was an incorrect tenancy agreement presented to them before the tenancy began and after the landlord had been served with an improvement notice, but the landlord has not taken any steps since then to correct the agreement or provide an HHS compliance statement. The landlord did not correct the terms of the agreement when it was renewed in December 2022 and has not taken any steps to do so since the 2023 decision was issued in August 2023. The Tribunals findings relevant to an exemplary damages award
Regarding the submission that the landlord has not activated the defective clauses in the tenancy agreement, Mr Relph also advanced this argument in the MBIE proceedings. It was firmly rejected by the Tribunal (see for example paragraph 50 of the 2023 decision). I also agree that this is no defence to a breach of s137. To commit an unlawful act under that provision, it is not necessary that the detriment actually occur. Having the clause in the agreement is the unlawful act.
The award of exemplary damages in the 2023 decision was to MBIE for failing to comply with the improvement notice. It does not prevent affected tenants from bringing their own claims for exemplary damages as it relates to their tenancies. It follows that the award is irrelevant when considering an individual tenant’s claim for exemplary damages.
Mr Relph also gave evidence at the MBIE proceedings that the landlord had made the necessary changes to its tenancy agreements by 15 February 2022 for any new tenancies (see paragraph 16d of the 2023 decision). However, clearly that is not the case in relation to this tenancy with the first agreement signed on 15 February 2022 containing the defective clauses 9 and 40, and omitting an HHS compliance statement.
Mr Cook’s argument that there is little the landlord can do to remedy past breaches again echoes the argument made by Mr Relph in the MBIE proceedings. Mr Relph submitted that it would be “near impossible” to update the 600 odd tenants of any issues with their tenancy agreement (see paragraph 16l of the decision). However, the adjudicator firmly rejected that argument. Paragraphs 39 and 40 of the 2023 decision (with which I agree) state: “39 The Landlord’s position is that it would not have been reasonable to notify the 600 odd tenants that there had been a deficiency or breach with the tenancy agreement. I do not accept that is the case at all. It makes no difference whether the landlord had one tenant, or 600, the rules apply equally. I make the observation that the landlord’s evidence was that shortly after the improvement notice had been received, all of the tenancies held by the landlord were renewed. Presumably then, the landlord had no difficulty in renegotiating, and re-contracting with the tenants, so it is difficult to see how the landlord would have been faced with the impossible task of updating its tenants with any preexisting problems around the tenancy agreement..... 40 The landlord also submitted that it was largely irrelevant that they didn’t notify the tenants of any problems with the tenancy agreements, because not long after the improvement notice was received, all of the tenancies had ended or were renewed. I disagree .........if there was a problem with the tenancy agreement even if the tenancy agreement had come to an end, the landlord should still notify the tenants, because if the tenant wished to pursue a claim against the landlord for any breach, the tenant could still do so. It could be argued that if nothing was said to the tenants, that there would be misleading by silence occurring.
Taking the factors in s109 into account, I conclude that exemplary damages should be ordered for the breach of s137 as it relates to the tenancy renewal agreement for these reasons: a. It is clear from the evidence that the landlord acted intentionally in issuing these tenants with a defective tenancy agreement despite the improvement notice detailing the same defects in other tenancy agreements served on the landlord before this tenancy began. This is because they clearly failed to take the necessary steps to ensure that all new tenancies had compliant clauses. This should have been “top of mind” following service of the improvement notice; b. The landlord did not take steps to correct the tenancy agreement when it was renewed, nor after the 2023 decision was issued, thereby repeating the unlawful act; c. As the adjudicator stated in the 2023 decision, it is almost certain that conscious decisions were made around the actions the landlord took in addressing the faulty tenancy agreements or not; d. The effect of the unlawful act is that the tenants have not had the benefit of properly knowing their rights around their tenancy, and the impact of that is significant; e. There are strong interests for the tenants to have any defect with their tenancy agreement corrected without delay; f. There is a strong public interest that landlords comply with their obligations and do not mislead tenants about their rights and obligations under the RTA; g. It would be just to make an order in this case.
The maximum level of exemplary damages set out in schedule 1A for a breach of s137(1) is $1,800. In this case, I have decided that the maximum amount of $1,800 should be awarded for the breach. In reaching this conclusion, I have taken into account the above factors and the size of the landlord, who reportedly has 600 tenancies, making it one of the larger landlords in NZ. Accordingly, they should know their obligations under the RTA.
Of equal concern is that the landlord, by the date of this hearing, had not taken any steps to advise these tenants of the defective clauses in the tenancy agreement and provide correct information, almost 2 years after the tenancy began; more than 2 years after MBIE issued the landlord with an improvement notice detailing the contraventions of the RTA; and now almost 6 months after the 2023 decision which criticised and penalised the landlord for failing to take steps. That the landlord continues to advance arguments that have already been rejected by the Tribunal also shows an unwillingness to accept and comply with their obligations. Those are particularly aggravating and egregious factors which support the maximum exemplary damages award.

Has the landlord failed to provide a current HHS compliance statement?

[The tenant/s] the landlord has not included a signed HHS compliance statement in the tenancy agreement and the renewal agreement. Failure to provide this information is a breach of s13A(1CA)(b) RTA.
Breaching these obligations is also an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See s13(1F)(a) and Schedule 1A RTA.
Property Management Wellington Limited.
For the same reasons advanced in paragraphs 49-53 above, I award the maximum amount of $750 for exemplary damages regarding the failure to include an HHS compliance statement in the tenancy renewal agreement which I consider is justified.
As the tenants have substantially succeeded with their claims against the landlord, they are entitled to suppression of their names and identifying details and reimbursement of the filing fee.

Tenancy Tribunal case 4760938 — State of repair at Unit/Flat 14, 80 Kent Terrace, Mount Victoria, Wellington

At a glance

Tenancy Tribunal case 4760938 — State of repair at Unit/Flat 14, 80 Kent Terrace, Mount Victoria, Wellington

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to maintain the premises in a reasonable state of repair?

Has the landlord contracted to contravene or evade the RTA?

Has the landlord failed to provide a current HHS compliance statement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to maintain the premises in a reasonable state of repair?

Has the landlord contracted to contravene or evade the RTA?

Has the landlord failed to provide a current HHS compliance statement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions