What was Tenancy Tribunal case 4783117 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 4783117?

Property Damage: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $1,080.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4783117?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4783117?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10549222-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4783117 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 4783117?

Property Damage: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $1,080.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4783117?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4783117?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10549222-Tribunal_Order_Redacted.pdf.

17 Hastings Place, Hamilton Lake, Hamilton 3204 Tenancy Tribunal Case 4783117 — Healthy homes

Claims and awards in Tenancy Tribunal application 4783117 — net $2,100.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failing to meet Healthy Homes Standards	$1,080.00	Failing to meet Healthy Homes Standards
Exemplary damages: Failing to lodge the bond	$500.00	Failing to lodge the bond
Exemplary damages: Failing to have an agent in New Zealand	$500.00	Failing to have an agent in New Zealand
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,100.44
Total payable by Landlord to Tenant	$2,100.44

Claims and awards in Tenancy Tribunal application 4783117 — net $2,100.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failing to meet Healthy Homes Standards	$1,080.00	Failing to meet Healthy Homes Standards
Exemplary damages: Failing to lodge the bond	$500.00	Failing to lodge the bond
Exemplary damages: Failing to have an agent in New Zealand	$500.00	Failing to have an agent in New Zealand
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,100.44
Total payable by Landlord to Tenant	$2,100.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name.
The landlord’s name is corrected and amended as shown above.
Reena Reedy and Vijen Reddy must pay [The tenant/s] $2,100.44 immediately, calculated as shown in table below.
The tenant’s claim for compensation for damage to a chest of drawers is dismissed.

Reasons

The tenant attended the hearing in person. Mr Reddy (landlord) attended by telephone from Australia on behalf of himself and Mrs Reddy.
The tenancy started on 29 November 2021 and initially was for a fixed term, which ended in November 2023. The tenancy became a periodic tenancy on the expiry of the fixed term and ended on 14 January 2024 as a result of the tenant giving notice.
The tenancy premises was the landlord’s home in New Zealand. They moved to Australia for work when the borders opened during the Covid 19 pandemic; their move was quickly arranged within around a three-week period. The tenant was the daughter of a colleague of Mrs Reddy.
The tenant claims: a) Compensation ($600) for damage to furniture as a result of a leak at the property b) Exemplary damages on the grounds that: i. the premises did not comply with Healthy Homes standards (HHS) ii. the bond was not lodged iii. the landlord did not have an agent in New Zealand
The tenant withdrew her claim for refund of the bond as the bond was reimbursed prior to the hearing. Compensation claim
The Tribunal can award compensation where a party has breached the tenancy agreement or any provisions contained in the Residential Tenancies Act 1986 (RTA) and where the other party has suffered a loss because of that breach. It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in but for the breach.
The tenant claims that at the end of the tenancy when she was moving out of the property she discovered there had been a leak in the premises which had caused damage to her chest of drawers in the master bedroom walk-in wardrobe. The tenant produced photographs of mould growing on the back and base of the drawers which was not visible from the front.
The walk-in wardrobe backs onto the hot water cupboard (HWC). The tenant says she had a basket on the floor of the HWC for the entirety of the tenancy, and that the bottom of the basket and the carpet under it was wet and mouldy when she removed it at the end of the tenancy. The tenant believes the HW cylinder has leaked and caused the damage to the drawers. The tenant believes the leak was historical and there when the tenancy started.
The tenant seeks compensation for her damaged chest of drawers as they are no longer able to be used.
The landlord had no knowledge of the leak until they received the tenant’s claim. That is, the leak was not advised by the tenant to the landlord during the tenancy or when she vacated. Mr Reddy said there had been a leak previously in the house but that it was fixed before the tenancy commenced.
Section 45(1)(b), RTA requires the landlord to provide and maintain the premises in a reasonable state of repair. This requires a landlord to respond within a reasonable time to requests for repairs that arise from maintenance issues affecting the tenant’s use of the property. If a landlord does not respond, or cannot respond, within a reasonable time, compensation is payable for any loss or inconvenience caused.
Here a) there is no evidence there was a leak at the commencement of the tenancy, and b) the tenant has not given the landlord opportunity to repair the leak as she did not notice it until the end of the tenancy. I find the landlord is not liable for compensation on that basis. Accordingly this part of the tenant’s claim is dismissed. Exemplary damages claims
Exemplary damages are different to compensation.
Parliament has determined that some obligations set out in the RTA that landlords and tenants have are so important that breaching those obligations are deemed to be an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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 1 . The maximum levels of exemplary damages that can be awarded vary depending on the obligation breached and are set out in Schedule 1A, RTA.
Exemplary damages are not compensatory in nature, but are a penalty that is awarded at the Tribunal’s discretion in cases of serious breach, to mark the Tribunals’ disapproval and deter a party from future such offences. In Auckland City Council v Blundell 2 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 1 Section 109(3) and Schedule 1A, RTA 2 1986] NZLR 732 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 the conduct. Were the HHS complied with? If not, should exemplary damages be awarded?
A landlord has an obligation to comply with HHS under section 45(1)(bb), RTA. Compliance dates for the HHS vary depending on the tenancy. In this instance as the tenancy commenced on or after 1 July 2021 but before 28 August 2022 the premises must comply with HHS by the 90th day after the commencement date of the tenancy 3 . That means compliance was required in this tenancy at the beginning of the day on 27 February 2022.
The Residential Tenancies (Healthy Homes Standards) Regulations 2019 set out the standards that a landlord must meet for heating, insulation, ventilation, draught stopping and moisture ingress and drainage.
The tenant claims the landlord has failed to comply with the HHS as: a) the extractor fans in the bathrooms and kitchen vented into the roof rather than into the outside, b) the heating provided did not comply as the heat pump in the living room was not sufficient for the size of the area and an un-flued gas heater was provided. Ventilation:
As the extractor fans at the premises were installed before 1 July 2019 the ventilation standard requires fans must be in good working order and ventilate to the outside 4 .
The landlord did not have a HHS assessment completed before or during the tenancy, but did have an assessment done the day after the tenancy ended. The assessment report confirms that the extractor fans in both bathrooms vent to the outside and meet the HHS.
The report confirms that the kitchen extractor fan does not meet the HH standard as it does not vent to the outside and requires repair. Heating:
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the ‘main living room’ to a required level. Qualifying heaters must be fixed to the premises in the room or supplying heat 3 Residential Tenancies (Healthy Homes Standards) Regulations 2019 Schedule 1 clause 2. 4 Clause 23 Residential Tenancies (Healthy Homes Standards) Regulations 2019 directly to the room, have a heating capacity of at least 1.5kW, have a thermostat if the heater is electric or a fixed heat pump, and must not be an unacceptable heater 5 . Heaters that are unacceptable include open fires, unflued combustion heaters and electric heaters that are not heat pumps if the required heating capacity is greater than 2.4kW.
The main living area of the premises is a large open plan area which includes the dining, kitchen and living room.
The HHS report confirms that the heating does not comply with HH standards as the main living room requires a total heat output of 7.6 kW 6 and the existing heat pump has a heating output of 5.5 kW.
The unflued gas heater in the living room is an unacceptable heater under the HHS.

Should an award of exemplary damages be made?

The landlord has failed to comply with the HHS as set out above within 90 days of the tenancy commencing and therefore has breached section 45(12)(bb) of the RTA. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1)(A) and Schedule 1A RTA.
Section 109(2)(b) RTA provides that an application for exemplary damages cannot be made any later than 12 months after the date of commission of the unlawful act, with the exception of failing to lodge the bond in the time prescribed 7 .
However the Tribunal has held that there is a distinction between unlawful acts that relate to a specific point in time and acts which can properly be regarded as ongoing or continuous 8 . The unlawful act here is the failure to comply with legal requirements in respect of the HHS for heating and ventilation. This is a continuing obligation and a continuing breach was committed until the end of the tenancy as the HHS were not complied with. Accordingly I am of the view that the 12 month time limit applies from the end of the tenancy and the claim for exemplary damages can be considered.
In considering whether exemplary damages should be awarded section 109(3) requires in the first instance that the landlord has acted intentionally.
In Birch v Otautahi Community Housing Trust 9 the District Court said: 5 Clause 9(1) Residential Tenancies (Healthy Homes Standards) Regulations 2019 6 based on the Tenancy Services HHS Heating Assessment Tool 7 Refer 109(2)(a) 8 See for instance Investment Bureau Ltd v Baker [2016] NZTT 4009290, 4010522; None v None [2022] 437800, 443120; Morrison v Nrg Realty Rentals Ltd [2020] 4268399 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.
The landlord, both in their written submissions and at the hearing, relied on a builder’s inspection carried out when they bought the house in late 2016/early 2017. The landlord maintains that inspection was regarding healthy home requirements and therefore assumed that their home met the HHS.
The landlord partially completed the HHS information, regarding the current level of compliance, in the tenancy agreement and in doing so: a) stated both that they will comply with the HHS and that the HHS are already complied with (emphasis added); b) misrepresented the required heating capacity for the main living room 10 ; c) misrepresented that the extractor fan in the kitchen vents to the outside and is in good working order; d) misrepresented that the ceiling insulation meets the HHS when the report assesses the ceiling insulation does not comply as it is of inadequate depth and downlight clearance is required.
While d) above does not relate to the claim made by the tenant, it is significant in terms of the reckless disregard the landlord has to the importance of providing correct information about and compliance with the HHS.
This property is not the only property that the landlord leases to tenants. They have a second rental which they have been renting out for around 4-5 years.
In my view the landlords’ reliance on the builder’s inspection carried out before the introduction of the HHS, along with their history as a landlord for some years and the representations they made in the tenancy agreement enables me to draw a reasonable inference of intent.
The tenant said she stopped using the kitchen extractor as, when it was turned on, “it spat fat down on you” and would set off the smoke alarms. She said the 9 [2020] NZDC 17667 10 The landlord has recorded the capacity of the heat pump, taken from the heat pump manual, instead. house was cold and cost a great deal to heat. The tenant thought a larger heat pump, sufficient to heat the main living area, would probably have been more cost effective. The tenant said her son was sick often when they lived at the premises, which she believed was in part because of how cold the house was. The tenant confirmed she did not use the unflued gas heater.
While I am satisfied that there was an effect on the tenant, there is no evidence that the tenant complained to the landlord about the kitchen extractor or how cold the house was during the tenancy. Conversely the tenant has communicated by text to the landlord in June 2022: “Been very wet and we’ve had more thunder in the last four days then we have had in 5 years! It’s been crazy. Everything is going good at home, house is warm and dry it’s so much nicer.”
The tenant said she did not raise her concerns with the landlord during the tenancy as she was worried that she would lose the house. However the RTA requires landlords and tenants to mitigate their loss 11 . This places a positive obligation on, as in this case, a tenant to bring any defects or concerns to the attention of the landlord in a reasonably timely manner rather than waiting for the tenancy to end and then raising issues they have been aware about for some time. In addition, the RTA enables the Tribunal to set aside a retaliatory termination of a tenancy by the landlord in situations where the landlord was wholly or partially motivated by a tenant making a complaint or exercising any right or power they have under the RTA.
I find it is just to make an award of exemplary damages in this case particularly as the landlord did not fulfil their HHS obligations and there is a high public interest in ensuring landlords meet their HHS obligations. Accordingly after considering all the circumstances I make an award for $1,080.00 being 15% of the maximum available award. Did the landlord fail to lodge the bond? If so, should exemplary damages be awarded?
A landlord must send any bond payment received from the tenant to the Bond Centre within 23 working days after the payment is received. This applies whether the bond is paid in part or whole. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 See section 19 and Schedule 1A RTA.
Section 109(2), RTA provides that a tenant may make an application for exemplary damages for failing to pay the bond to the Bond Centre for 12 months after the termination of the tenancy. 11 Section 49, RTA
The landlord does not dispute that they failed to forward the bond to the Bond Centre. They said their failure to lodge the bond was an error on their part and “purely an oversight” as a result of how busy they were at the time in moving to Australia. The landlord says when they received notice from the tenant terminating the tenancy, they rang the Bond Centre for the bond lodgement number and realised then that they had not lodged the bond. The landlord reiterated that the bond was paid to the tenant several days after the tenancy ended.
The tenant said she felt anxious when she rang the Bond Centre and learned the landlord had not lodged the bond, as it was not the landlord’s money to hold on to.
The tenant paid $2,400.00 in bond to the landlord. This is a significant amount for the landlord to have kept in their own bank account for over three years without realising it was bond money that should have been forwarded to the Bond Centre. The landlord is an experienced landlord as set out above. The landlord has committed an unlawful act and I find intention is proven.
A bond is the tenant’s money and lodging the bond with the Bond Centre is a mandatory obligation. It is in the public interest that landlords fulfil their obligations under the RTA. This is a serious breach and if no penalty is imposed there can be no deterrent.
From the evidence it does not appear that the landlord has failed to lodge a bond for any other tenancies, and I note that the tenancy premises is now being managed by a property manager. I find an award of $500.00, being 1/3 of the maximum penalty is just and reasonable in the circumstances. Did the landlord fail to appoint an agent in New Zealand? If so, should exemplary damages be awarded?
Section 16A of the RTA requires a landlord who is out of New Zealand for 21 days or more to appoint an agent in New Zealand. When a landlord knows they will be out of the New Zealand for longer than 21 days they must appoint an agent before they depart. Section 16A requires a landlord to immediately notify the tenant of the agent's name, contact address (being the agent’s cell phone number and email address) and address for service after making such an appointment. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 See section 16A and Schedule 1A RTA.
The tenant said she was given the first name of a friend of the landlord’s (Lillian) and her cell phone number when the tenancy started. She says she was not given her last name, email address or any address for service.
The landlord said Lillian was their agent in New Zealand and was managing the tenancy. The landlord admitted they left it to Lillian to give her details to the tenant. Lillian left New Zealand around 6 months after the tenancy started, and the landlord did not appoint any other agent. The landlord acknowledged they did not know they needed to appoint an agent in New Zealand, even though they had two tenancy properties in New Zealand. A landlord is expected to have knowledge of the obligations they have under the RTA and comply with those obligations. I find the landlord has acted intentionally in not appointing an agent after Lillian left New Zealand.
It is in the public interest that every tenancy is managed by someone living in New Zealand in case of emergencies and problems with the property.
In this instance the landlord was not moving from place to place, as a landlord on holiday may be doing, and the tenant could easily communicate with the landlord via technology. However the landlord in appointing Lillian did not provide the tenant with her details as required under the RTA, and did not inform the tenant that Lillian’s role had ended.
I find the landlord breached section 16A has they have failed to appoint an agent in New Zealand once Lillian went to Fiji and failed to provide the required details for Lillian when she was acting as their agent. I find the breach was continuing and that the tenant did not know Lillian had left New Zealand and was no longer acting as an agent until she received the landlord’s written submissions in defence of her claim. Accordingly, in terms of the time limit imposed by section 109(2)(b), the claim for exemplary damages can be considered.
The tenant has been affected as she has had to participate in video inspections, rather the landlord organising for someone to come to the property to carry out an inspection. The tenant also said she could not raise issues with the landlord as she felt they would not be addressed, or that she would have to be involved in organising any work (repairs etc) required.
I find it just and reasonable to make an award of exemplary damages for the breach of $500.00.
Filing Fee: As the tenant has been mainly successful in her claim the filing fee is awarded.
Suppression: Name suppression is available to the substantially successful party, which in this case is the tenant. The tenant has requested name suppression therefore a suppression order is made. No sufficient reason is provided for the landlord’s name of the identifying details of the tenancy to be suppressed.

Tenancy Tribunal case 4783117 — Healthy homes at 17 Hastings Place, Hamilton Lake, Hamilton 3204

At a glance

Tenancy Tribunal case 4783117 — Healthy homes at 17 Hastings Place, Hamilton Lake, Hamilton 3204

At a glance

Award balance

Claims & awards

Order

Reasons

Should an award of exemplary damages be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should an award of exemplary damages be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions