What was Tenancy Tribunal case 4761618 about?

The tribunal order states: Kyle Webster must pay [The tenant/s] $9,452.44 immediately, calculated as

How much money was awarded in case 4761618?

Compensation: Actual losses due to l…: $2,432.00 awarded to tenant; Compensation: Loss of enjoyment of t…: $2,000.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4761618?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4761618?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10494881-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4761618 about?

The tribunal order states: Kyle Webster must pay [The tenant/s] $9,452.44 immediately, calculated as

How much money was awarded in case 4761618?

Compensation: Actual losses due to l…: $2,432.00 awarded to tenant; Compensation: Loss of enjoyment of t…: $2,000.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4761618?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4761618?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10494881-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4761618 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4761618 — net $9,452.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Actual losses due to landlord breaches	$2,432.00	Actual losses due to landlord breaches
Compensation: Loss of enjoyment of tenancy	$2,000.00	Loss of enjoyment of tenancy
Exemplary damages: Failure to repair and maintain and provide adequate means to store water	$3,000.00	Failure to repair and maintain and provide adequate means to store water
Exemplary damages: Retaliatory termination notice	$2,000.00	Retaliatory termination notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,452.44
Total payable by Landlord to Tenant	$9,452.44

Order

Kyle Webster must pay [The tenant/s] $9,452.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
I first began hearing the application on 1 February 2024. I set aside the landlord’s notice to terminate the tenancy because the notice was retaliatory – it followed a 14-day notice the tenant issued for repairs.
I reserved the issue of exemplary damages for the retaliatory notice until I heard the balance of the tenant’s application. Background
The tenancy with this tenant started on 28 October 2021. The tenancy of a previous tenant was assigned to this tenant. The tenancy was a fixed term tenancy that ended in July 2022. After that the tenancy became a periodic tenancy.
Since around May 2023, the tenant had no water supply. There is no reticulated water supply at the premises. The water is tank water.
The landlord failed to repair the water storage tanks. Since the last hearing he has done so.
In her application the tenant has described how she was without water for over 7 months at the time she made her application. Another 3 months passed until the water tanks were replaced.
The tenant has set out the costs she has incurred for travel to do laundry and have showers 3 times per week and for the purchase of bottled water. As well, she refers to the stress of having no water. To flush the toilet, she had to take pails to her neighbour’s place and fill them.
The landlord has tried to terminate the tenancy before, most recently on 21 November 2023. It was that notice the Tribunal set aside, declaring it to be retaliatory.
The tenant also referred to other maintenance issues. She said it took 8 months for the landlord to repair a ranch slider door and there was a delay before electrical repairs were carried out.
The tenant has claimed compensation, and exemplary damages for the landlord’s breaches that amount to unlawful acts. Legal principles – 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.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
The tenant detailed costs of $2,432.00 in her application for actual losses she suffered as a result of having no water supply. They include the cost of travel 3 times each week for showers and to do the laundry, laundromat costs, the cost of showers, and having to purchase bottled water.
The tenant’s actual losses would have been higher since the application was made in December 2023, yet the water tanks were not replaced until 19 March 2024. However, as the costs were not updated, I have awarded what was claimed.
In addition, I award the tenant compensation of $2,000.00 for the loss of enjoyment of her tenancy. Following the Birch principles, the nature of the breaches was fundamental to the enjoyment of the tenancy – the provision of water and attending to necessary repairs. The duration of the breaches was lengthy (around 10 months for the water issue); and the effects of the breaches were considerable. Being without water is a significant loss of enjoyment affecting laundry, hygiene, cooking and other tasks as well. Repairs delayed for so long had a direct impact on the tenant. Legal principles – exemplary damages
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: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest. Breaches that amount to unlawful acts
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and provide an adequate means for the collection and storage of water if there is no reticulated supply.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
The landlord failed to maintain the premises in a reasonable state of repair and failed to provide an adequate means for the collection and storage of water. When I asked him whether he accepted that the tenant was without a supply of water, he agreed that she was. He said it took time to repair the tanks because he was relying on tradespeople.
The landlord said he also had difficulties getting tradespeople to repair the ranch slider and do the electrical repairs.
That explanation is not sufficient; the delay was too great.
The tenant produced in evidence a letter from the landlord’s previous tenants who rented the premises for 3 years. They too describe a history of water problems and a general failure by the landlord to maintain and repair the premises.
They state that the ranch slider was broken in 2017 and was never repaired. They state that mould grew continuously and there was daylight visible around the skirting boards. They mention that the landlord gave them an eviction notice on Christmas eve in 2019 on the basis that he needed to move into the premises urgently, which he never did.
The former tenants’ summary is that the landlord ‘is a terrible landlord that does not take his obligations seriously’. That very much mirrors the current tenant’s assessment of him.
When I asked the landlord whether he had had the premises assessed for compliance with the Health Homes Standards (HHS) or had completed an assessment himself, he said he had not. He said there were no extraction fans in the bathroom or kitchen.
The tenant has not applied for exemplary damages for non-compliance with the HHS. The landlord is on notice that should he not ensure compliance promptly, the tenant will be able to make another application and seek further exemplary damages for breaches since the time of this order.
The Tribunal urges the landlord to appoint a property manager since his knowledge of a landlord’s statutory responsibilities is woeful. Waiting for proposed statutory change might not be the panacea the landlord expects it to be.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
I have no hesitation in concluding that the landlord acted intentionally by failing to maintain and repair the premises and by failing to provide an adequate means for the collection and storage of water. It is extraordinary that he would ignore such an important issue as the supply of safe potable water for so long.
The landlord’s actions had a direct and significant effect on the tenant and were against her interests. It is also against the public interest for a landlord to ignore their statutory responsibilities so blatantly.
I award the tenant exemplary damages of $3,000.00 for the landlord’s unlawful acts failing to maintain and repair the premises and failing to provide an adequate means for the collection and storage of water.
I determined in my order dated 1 February 2024 that the landlord’s notice to terminate the tenancy was a retaliatory notice - the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA. The reasons he gave for terminating the tenancy were not credible. He simply wanted the tenant gone.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so considering the effect of the unlawful act, the interests of the other party, and the public interest. For completeness the giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) RTA.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A RTA.
Terminating a tenancy out of retaliation for an action taken by the tenant has an immediate and worrying effect on the tenant and is against their interests and the public interest. The tenant said she had been unable to find any other tenancy and she needed to remain in this tenancy (even with the history of having no water supply) until she found somewhere else to live.
The landlord said he awaited the proposed new law which would allow a landlord to terminate a tenancy without notice. I mention that to show his mindset.
I award the tenant exemplary damages of $2,000.00 for this unlawful act. It is in the interests of justice that this landlord faces a sanction for his actions. Result
The landlord will pay the tenant $9,452.44 comprising: •compensation for her actual losses of $2,432.00 (the figure in her application; her actual losses were probably higher but were not updated) •compensation for her loss of enjoyment of the tenancy of $2,000.00 •exemplary damages for the failure to provide and maintain the premises in a reasonable state of repair and to ensure an adequate means for the collection and storage of water of $3,000.00 •exemplary damages for issuing a retaliatory termination notice of $2,000.00 •the filing fee of $20.44. Name suppression
The tenant sought and is entitled to an order for name suppression as the application is successful – see section 95A RTA.

Claims and awards in Tenancy Tribunal application 4761618 — net $9,452.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Actual losses due to landlord breaches	$2,432.00	Actual losses due to landlord breaches
Compensation: Loss of enjoyment of tenancy	$2,000.00	Loss of enjoyment of tenancy
Exemplary damages: Failure to repair and maintain and provide adequate means to store water	$3,000.00	Failure to repair and maintain and provide adequate means to store water
Exemplary damages: Retaliatory termination notice	$2,000.00	Retaliatory termination notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,452.44
Total payable by Landlord to Tenant	$9,452.44

Order

Kyle Webster must pay [The tenant/s] $9,452.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
I first began hearing the application on 1 February 2024. I set aside the landlord’s notice to terminate the tenancy because the notice was retaliatory – it followed a 14-day notice the tenant issued for repairs.
I reserved the issue of exemplary damages for the retaliatory notice until I heard the balance of the tenant’s application. Background
The tenancy with this tenant started on 28 October 2021. The tenancy of a previous tenant was assigned to this tenant. The tenancy was a fixed term tenancy that ended in July 2022. After that the tenancy became a periodic tenancy.
Since around May 2023, the tenant had no water supply. There is no reticulated water supply at the premises. The water is tank water.
The landlord failed to repair the water storage tanks. Since the last hearing he has done so.
In her application the tenant has described how she was without water for over 7 months at the time she made her application. Another 3 months passed until the water tanks were replaced.
The tenant has set out the costs she has incurred for travel to do laundry and have showers 3 times per week and for the purchase of bottled water. As well, she refers to the stress of having no water. To flush the toilet, she had to take pails to her neighbour’s place and fill them.
The landlord has tried to terminate the tenancy before, most recently on 21 November 2023. It was that notice the Tribunal set aside, declaring it to be retaliatory.
The tenant also referred to other maintenance issues. She said it took 8 months for the landlord to repair a ranch slider door and there was a delay before electrical repairs were carried out.
The tenant has claimed compensation, and exemplary damages for the landlord’s breaches that amount to unlawful acts. Legal principles – 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.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
The tenant detailed costs of $2,432.00 in her application for actual losses she suffered as a result of having no water supply. They include the cost of travel 3 times each week for showers and to do the laundry, laundromat costs, the cost of showers, and having to purchase bottled water.
The tenant’s actual losses would have been higher since the application was made in December 2023, yet the water tanks were not replaced until 19 March 2024. However, as the costs were not updated, I have awarded what was claimed.
In addition, I award the tenant compensation of $2,000.00 for the loss of enjoyment of her tenancy. Following the Birch principles, the nature of the breaches was fundamental to the enjoyment of the tenancy – the provision of water and attending to necessary repairs. The duration of the breaches was lengthy (around 10 months for the water issue); and the effects of the breaches were considerable. Being without water is a significant loss of enjoyment affecting laundry, hygiene, cooking and other tasks as well. Repairs delayed for so long had a direct impact on the tenant. Legal principles – exemplary damages
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: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest. Breaches that amount to unlawful acts
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and provide an adequate means for the collection and storage of water if there is no reticulated supply.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
The landlord failed to maintain the premises in a reasonable state of repair and failed to provide an adequate means for the collection and storage of water. When I asked him whether he accepted that the tenant was without a supply of water, he agreed that she was. He said it took time to repair the tanks because he was relying on tradespeople.
The landlord said he also had difficulties getting tradespeople to repair the ranch slider and do the electrical repairs.
That explanation is not sufficient; the delay was too great.
The tenant produced in evidence a letter from the landlord’s previous tenants who rented the premises for 3 years. They too describe a history of water problems and a general failure by the landlord to maintain and repair the premises.
They state that the ranch slider was broken in 2017 and was never repaired. They state that mould grew continuously and there was daylight visible around the skirting boards. They mention that the landlord gave them an eviction notice on Christmas eve in 2019 on the basis that he needed to move into the premises urgently, which he never did.
The former tenants’ summary is that the landlord ‘is a terrible landlord that does not take his obligations seriously’. That very much mirrors the current tenant’s assessment of him.
When I asked the landlord whether he had had the premises assessed for compliance with the Health Homes Standards (HHS) or had completed an assessment himself, he said he had not. He said there were no extraction fans in the bathroom or kitchen.
The tenant has not applied for exemplary damages for non-compliance with the HHS. The landlord is on notice that should he not ensure compliance promptly, the tenant will be able to make another application and seek further exemplary damages for breaches since the time of this order.
The Tribunal urges the landlord to appoint a property manager since his knowledge of a landlord’s statutory responsibilities is woeful. Waiting for proposed statutory change might not be the panacea the landlord expects it to be.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
I have no hesitation in concluding that the landlord acted intentionally by failing to maintain and repair the premises and by failing to provide an adequate means for the collection and storage of water. It is extraordinary that he would ignore such an important issue as the supply of safe potable water for so long.
The landlord’s actions had a direct and significant effect on the tenant and were against her interests. It is also against the public interest for a landlord to ignore their statutory responsibilities so blatantly.
I award the tenant exemplary damages of $3,000.00 for the landlord’s unlawful acts failing to maintain and repair the premises and failing to provide an adequate means for the collection and storage of water.
I determined in my order dated 1 February 2024 that the landlord’s notice to terminate the tenancy was a retaliatory notice - the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA. The reasons he gave for terminating the tenancy were not credible. He simply wanted the tenant gone.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so considering the effect of the unlawful act, the interests of the other party, and the public interest. For completeness the giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) RTA.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A RTA.
Terminating a tenancy out of retaliation for an action taken by the tenant has an immediate and worrying effect on the tenant and is against their interests and the public interest. The tenant said she had been unable to find any other tenancy and she needed to remain in this tenancy (even with the history of having no water supply) until she found somewhere else to live.
The landlord said he awaited the proposed new law which would allow a landlord to terminate a tenancy without notice. I mention that to show his mindset.
I award the tenant exemplary damages of $2,000.00 for this unlawful act. It is in the interests of justice that this landlord faces a sanction for his actions. Result
The landlord will pay the tenant $9,452.44 comprising: •compensation for her actual losses of $2,432.00 (the figure in her application; her actual losses were probably higher but were not updated) •compensation for her loss of enjoyment of the tenancy of $2,000.00 •exemplary damages for the failure to provide and maintain the premises in a reasonable state of repair and to ensure an adequate means for the collection and storage of water of $3,000.00 •exemplary damages for issuing a retaliatory termination notice of $2,000.00 •the filing fee of $20.44. Name suppression
The tenant sought and is entitled to an order for name suppression as the application is successful – see section 95A RTA.

Tenancy Tribunal case 4761618 — Exemplary damages

At a glance

Tenancy Tribunal case 4761618 — 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