What was Tenancy Tribunal case 4794493 about?

The tribunal order states: Antina Margret MacDonald must pay [The landlord/s] $6,164.00 immediately,

How much money was awarded in case 4794493?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4794493?

The primary dispute was Property damage. Related themes: Cleanliness, Rent arrears, Smoke alarms.

Where can I read the official tribunal order for case 4794493?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10459293-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4794493 about?

The tribunal order states: Antina Margret MacDonald must pay [The landlord/s] $6,164.00 immediately,

How much money was awarded in case 4794493?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4794493?

The primary dispute was Property damage. Related themes: Cleanliness, Rent arrears, Smoke alarms.

Where can I read the official tribunal order for case 4794493?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10459293-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4794493 — Property damage

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New Zealand Tenancy Tribunal Case 4794493 — Property damage | TenantCheck

Order

Antina Margret MacDonald must pay [The landlord/s] $6,164.00 immediately, calculated as shown in table below:
50 Compensation for damage to carpet in both conservatories $650.00 Dump fees$179.18 Landlord labour for rubbish removal$300.00 Compensation for missing drapes$200.00 Landlord labour for lawns and garden work$200.00 Cleaning materials$93.27 Landlord labour for cleaning$1,300.00 Hire fee for odour ionisation machine$108.00 Filing fee reimbursement$20.44 Total award$6,164.00 Total payable by Tenant to Landlord$6,164.00
The landlord’s application for rent arrears after 29 November 2023 is dismissed.
The landlord’s application for paint, material, and labour (claim B) is dismissed.
The landlord’s claim for interest and for enforcement fees on past orders is dismissed.
The tenant’s application for a full refund of rent is dismissed.
The tenant’s application for exemplary damages is dismissed.
The tenant’s compensation claims are dismissed including the claim for compensation for personal injury.

Reasons

Background

These applications arise from the increasingly fractious tenancy between the parties which has now ended.
I heard the applications separately. I first heard the tenant’s application on 25 January 2024. I heard evidence and submissions from the parties, including the tenant’s partner Lee Batchelor, and witness evidence from Michael Ord, the tenant’s uncle, and [The landlord’s wife].
The landlord’s cross application had not been processed when I heard the tenants’ application, so I left the application open for the Tribunal to receive it. I reserved my decision on the tenant’s application pending me hearing the landlord’s application on 19 April 2024.
In my order dated 25 January 2024, I recorded an arrangement agreed to by the parties for the tenant to remove the remaining goods at the premises by 28 January 2024, following which the landlord was authorised to dispose of anything left behind.
I also provided directions for the landlord to file written submissions and for the tenant to file a statement in reply. The landlord complied with that direction, the tenant did not.
The tenant did not attend the hearing on 19 April 2024, so the landlord’s application proceeded by way of formal proof.
I record that the first hearing was contentious; the animosity between the parties so great that it has been difficult for the Tribunal to determine the tenant’s claims in particular. It has done so as best it can from the disinterested position of an objective decision maker. The first order for rent arrears
Following a telephone hearing on 6 November 2023, the Tribunal terminated the tenancy with possession to pass to the landlord on 15 November 2023. The Tribunal made for rent arrears to 15 November for $18,478.57. The landlord has already commenced enforcing that order through the District Court collections process.
I will record part of what the adjudicator said in the order because it is relevant to my consideration of the applications before me, and I will refer to it later:
The matter was part heard on 12 September 2023. The tenant applied for an adjournment so as to allow her to file a cross claim. The adjournment was granted on a conditional basis. Between the date of the order and the final hearing, the tenant was to pay rent in full and on time. The concern being the amount of rent arrears that had accumulated by that stage. If payments were not made within 48 hours of the date on which they were due, the landlord could ask for the matter to come back before the Tribunal.
The landlord asked for the matter to be recalled as rent had not been paid in accordance with the 12 September 2023 order.
The matter was called again on 28 September 2023. The landlord said that no rent had been received. The tenant was adamant that rent had been paid on time and in full. By order dated 28 September 2023, the matter was adjourned. The tenant was given until 5pm on Friday 29 September 2023 to provide evidence of the rent payments. No evidence has been filed. At the hearing on 6 November 2023 the tenant said that she had overlooked the need to file the evidence due to the sudden illness of a family member. That may have allowed the Tribunal to extend the time for filing that evidence, but more than a month has now passed without the tenant filing the evidence required. Landlord actions after termination
After the Tribunal terminated the tenancy, the landlord issued a trespass notice on the tenant on 29 November 2023. The landlord explained that late on the night of 28 November 2023 the tenant returned to the premises and removed the smoke alarms, the light bulbs, and a set of drapes. He said he was fearful the tenant would return again so in addition to the trespass notice, he changed the locks.
The tenant did not remove all their belongings and that is why I recorded the arrangement for them to do so by 5.00pm on 28 January 2024. The tenant’s application
The tenant seeks a rent refund, compensation, and exemplary damages (marked *) as follows: •A full refund of rent - $28,600.00 •Reimbursement for work done - $2,435.00 •Reimbursement of moving costs due to nature of deceit - $2,400.00 •Reimbursement of school uniform costs - $1,000.00 •No completed tenancy agreement - $750.00 * •Landlord providing false and misleading information - $900.00 * •No Healthy Homes Statement completed - $900.00 * •Landlord failing to state the amount of rent when offering the tenancy - $1,500.00 * •Landlord inviting or encouraging bids for rent - $1,500.00 * •Insurance statement not completed - $900.00 * •Interference with privacy - $3,000.00 * •Unlawful entry by landlord - $1,500.00 * •Landlord’s wife entering property unlawfully - $1,500.00 * •Breach of ‘Healthy Homes Act’ - $7,200.00 * •Landlord interfering with services - $1,800.00 * •Failure to provide locks and keys - $1,500.00 * •Property not secure - $1,500.00 * •Compensation for broken tail bone due to injury caused by failure to repair - $5,000.00 •Compensation due to health and mental wellbeing effects - $5,000.00 •No smoke alarms - $4,000.00 * •Property not kept in a reasonable state of repair - $7,200.00 * Legal principles – exemplary damages
As can been seen, most of the tenant’s claims are for exemplary damages.
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 v Otautahi Community Housing Trust [2020] NZDC 17667 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.
As often happens, the tenant has referred to several alleged unlawful acts by the landlord and has sought the maximum award of exemplary damages for each. But as with fines, the Tribunal seldom if ever awards the maximum amount of exemplary damages. And where there are numerous claims, as in this case, any damages awarded must be proportionate to the circumstances of the tenancy over all.
The Tenancy Tribunal is one of the few jurisdictions that can award exemplary damages. It does not do so lightly. And the law prevents multiple awards for breaches arising from the same or similar actions. So, for example, deficiencies in the information provided in a tenancy agreement would be dealt with together, not separately, as would all issues arising from a proven failure to maintain and repair the premises including non-compliance with the Healthy Homes Standards (HHS).
The tenant has alleged 15 unlawful acts against the landlord. The Tribunal would not, and could not, make 15 separate awards of exemplary damages, even if it found the claims proved.
The application for exemplary damages for alleged deficiencies in the tenancy agreement (4 of the categories listed by the tenant) are dealt with together. They are largely technical breaches.
The landlord described in evidence the difficulties he experienced getting the tenant to sign the tenancy agreement. I find no breaches amounting to unlawful acts proved.
The application for exemplary damages for the failure to maintain and/or repair the premises and for the failure to comply with the HHS (2 of the categories listed by the tenant) are dealt with together.
I have considered the evidence both parties gave. The evidence does not establish that the landlord ‘tuned his mind to the act and deliberately set about to commit it’.
There is some evidence that the premises were not adequately maintained and/or repaired, but not to a level that would reach the threshold for exemplary damages. I will address this matter further under the tenant’s compensation claims.
The alleged failure to state the amount of rent when offering the tenancy and encouraging bids for rent (2 of the categories listed by the tenant) are dealt with together. The evidence does not establish any breach amounting to an unlawful act.
The alleged interference with privacy and unlawful entries (3 of the categories listed by the tenant) are dealt with together. Again, the evidence does not establish any breaches that amount to an unlawful act. The allegations made by the tenant were strongly denied by the landlord. I preferred the landlord’s evidence on this issue.
The alleged interference with services, failure to provide locks and keys, and the property not being secure (3 of the categories listed by the tenant) are dealt with together. The evidence does not establish breaches that amount to unlawful acts.
The allegation that there were no smoke alarms is dealt with separately. The evidence is in conflict. The tenant said the landlord delivered smoke alarms about 2 weeks after the tenancy started. The landlord said the tenant removed the alarms because they started beeping which suggested the batteries needed replacing; 3 of the 5 alarms were new with 10-year batteries.
I do not find that the landlord failed to provide and/or install compliant smoke alarms. Even if there was a 2-week delay, the provision of alarms was prompt.
This tenancy started on 26 February 2023. The tenant’s application was made about the time the landlord applied to terminate the tenancy for (considerable) rent arrears.
The Tribunal views with some caution an application made in those circumstances. If things were really as bad as the tenant makes out, why was there not an earlier application?
Of all the matters raised as alleged unlawful acts the Tribunal finds none proved. Either the evidence for the alleged acts does not meet the standard of proof in this jurisdiction (on the balance of probabilities) or does not establish that the landlord acted with intent (a necessary statutory element before exemplary damages can be awarded).
Another important point is this. Before the Tribunal awards exemplary damages, it must find that it would be just to do so.
In this case the tenants have not paid rent amounting to about $18,000.00 (as recorded in the Tribunal’s order in November 2023).
The landlord is unlikely to recover that money, or if he does, it will be paid over many years. That is a considerable loss to the landlord and a corresponding benefit to the tenant.
Against that background, it would be a perverse outcome, given the landlord’s loss of rent, were the Tribunal to award the tenant compensation and/or exemplary damages. It would be plainly unjust. The tenant has taken a considerable benefit by not paying rent, effectively living in the premises rent free for a long time.
The tenant’s application for exemplary damages is dismissed. 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, 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’s compensation claims are for the reimbursement of moving costs because they say the landlord was deceitful, school uniform costs, and stress and mental harm.
I do not find these claims proved. The evidence does not establish that the landlord was deceitful. This is a claim for misrepresentation of the tenancy. The tenant gave evidence that they viewed the premises at night when it was not light, and it was not until they moved in that they realised the state of the premises. By then it was too late to do anything; they had no choice but to proceed.
I do not accept that. It is plain common sense that before agreeing to take up a tenancy, a tenant should properly assess the premises and make an informed decision. The tenant had every chance to be diligent and to make sure the premises met their needs. That they did not do so falls on them. There is no evidence on which the Tribunal could conclude that the landlord misrepresented the premises.
Likewise, there is no basis on which the Tribunal could reimburse the cost of the school uniforms for the tenant’s children. The tenancy started on 26 February 2023 and ended in November. The children wore their uniforms for the full school year.
I find no claim proved for compensation for stress and for mental harm. The tenant would have the Tribunal believe that they were the innocent victims of an unscrupulous landlord. Having heard from the parties in person the Tribunal did not form that impression at all. It formed the view that the tenant’s claims were largely contrived, an attempt to be relieved of their obligation to pay rent by whatever means.
The tenant sought compensation for work they did with the landlord’s consent at the start of the tenancy, including painting and cleaning. They received reimbursement agreed at the time equivalent to 2 weeks’ rent. They now seek more. I decline to award further compensation. Agreements were made at the time. The Tribunal sees no need to interfere with agreements reached.
While the tenant has provided some evidence that the premises required some maintenance and repair (the CCC report and the MBIE compliance team report) this is a case where the Tribunal does not consider it appropriate to award compensation for the loss of enjoyment of the tenancy. The reports produced were completed by assessors who did not involve the landlord at all, so their conclusions were based solely on what the tenant told them.
The authors of the reports did not attend as witnesses. Their conclusions do not support the tenant’s submission that the premises were not fit to be rented.
The tenant’s claims for compensation are dismissed. As noted earlier, an award of compensation against a backdrop of them owing the landlord some $18,000.00 for rent (which does not take into account the additional rent owed as a result of this order) would be a perverse outcome. Compensation for personal injury
The tenant claims compensation for an injury they say occurred to one of them due to the landlord’s failure to repair concrete tile steps. Compensation for personal injury in New Zealand is provided for under the Accident Compensation Act 2001 which prevents an injured person from claiming compensation in any other forum.
The Tribunal has no jurisdiction to award compensation for the effects of personal injury accepted for cover by ACC. This claim is dismissed. Rent refund
Rent can only abate when the premises are destroyed or so seriously damaged (wholly or in part) so as to become uninhabitable. That was not the case here.
The tenant has no grounds at all to claim a full refund (or any refund) of rent.
I referred earlier to the Tribunal’s first order for rent arrears. The Tribunal expressed its frustration with the tenant’s failure to provide evidence of payments made. It seems to me that the tenant simply bought themselves time.
The order for rent arrears to 15 November 2023 was considerable - $18,478.57.
The tenant appears to have given no thought at all to the effect on the landlord of the failure to pay such a large amount of rent.
I dismiss the application for a refund of all rent paid from the start of the tenancy. Not only has the tenant not established grounds for a rent refund, but there is also already a Tribunal order for a large amount of rent arrears and a further order for rent in this decision. A rent refund now would negate the earlier order made. More importantly, the allegations made by the tenant do not establish grounds for a refund of any rent. The landlord’s application
The landlord’s application is for rent arrears, compensation for repairs and missing chattels, cleaning costs, rubbish removal and dump fees, and gardening work.
As I have noted, the landlord’s application proceeded by way of formal proof as the tenant did not defend it.

How much is owed for rent?

The landlord provided rent records which prove the amount of rent owing at the end of the tenancy, and since the date of the last order for rent arrears to 15 November 2023.
The landlord’s claim for rent arrears after 29 November 2023 is dismissed. The tenancy had ended by then and the landlord has issued a trespass notice on the tenant.

Did the tenants comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) RTA. The tenant must also replace standard light bulbs.
The landlord’s claims for the replacement of 3 smoke alarms, 30 light bulbs, a metal driveway gate; carpet cleaning; the replacement of a shower drain unit; the replacement of a bathroom robe hook; the replacement of a pane of glass in a light fitting; dump fees and rubbish removal costs; gardening and lawn mowing (landlord labour); cleaning materials and landlord labour for cleaning; and the hire of an ionisation machine to deodorise the premises are proved by invoices, photos and the evidence the landlord and his wife gave at the hearing.
The Tribunal does not award travel costs on a per km basis (part of the rubbish removal claim); that is a business expense. I have awarded compensation only for the missing drapes. The landlord has not replaced the drapes and the Tribunal must take depreciation into account.
The Tribunal has awarded the cost of lock replacement. Although the landlord changed the locks, that happened after the Tribunal had terminated the tenancy. The landlord gave evidence that the tenants had not returned the keys by that time.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
The landlord was not insured for tenant damage for this tenancy.
The tenant painted the bottom room but not a colour approved by the landlord. However, the landlord has not repainted the room. A new tenancy has started. There is no invoice to prove the loss. This claim is dismissed.
A window in the southwest bedroom on level 3 was broken. The landlord accepted a quote to repair it and the work has now been done. That claim is proved.
Two wooden venetian blinds were damaged. The landlord’s wife repaired them.
There was a hole in the master bedroom wall that required repair.
The carpet in the conservatories was damaged. I have awarded compensation for that damage taking depreciation and fair wear and tear into account. Other claims
The landlord sought the cost of enforcement fees and interest on past orders. The Tribunal does not have jurisdiction to award interest on past orders. The enforcement fees are added to the order at the time enforcement action is taken. These claims are dismissed. Result
For the reasons given, the tenant’s application is dismissed.
The landlord’s application is successful in the amount of $6,164.00 which includes the Tribunal filing fee on the successful application. Name suppression
Both parties sought an order for name suppression. I order suppression of the landlord’s name and identifying details as the application is mostly successful. The tenant is not entitled to name suppression as their application is unsuccessful – see section 95A RTA.

Order

Antina Margret MacDonald must pay [The landlord/s] $6,164.00 immediately, calculated as shown in table below:
50 Compensation for damage to carpet in both conservatories $650.00 Dump fees$179.18 Landlord labour for rubbish removal$300.00 Compensation for missing drapes$200.00 Landlord labour for lawns and garden work$200.00 Cleaning materials$93.27 Landlord labour for cleaning$1,300.00 Hire fee for odour ionisation machine$108.00 Filing fee reimbursement$20.44 Total award$6,164.00 Total payable by Tenant to Landlord$6,164.00
The landlord’s application for rent arrears after 29 November 2023 is dismissed.
The landlord’s application for paint, material, and labour (claim B) is dismissed.
The landlord’s claim for interest and for enforcement fees on past orders is dismissed.
The tenant’s application for a full refund of rent is dismissed.
The tenant’s application for exemplary damages is dismissed.
The tenant’s compensation claims are dismissed including the claim for compensation for personal injury.

Reasons

Background

These applications arise from the increasingly fractious tenancy between the parties which has now ended.
I heard the applications separately. I first heard the tenant’s application on 25 January 2024. I heard evidence and submissions from the parties, including the tenant’s partner Lee Batchelor, and witness evidence from Michael Ord, the tenant’s uncle, and [The landlord’s wife].
The landlord’s cross application had not been processed when I heard the tenants’ application, so I left the application open for the Tribunal to receive it. I reserved my decision on the tenant’s application pending me hearing the landlord’s application on 19 April 2024.
In my order dated 25 January 2024, I recorded an arrangement agreed to by the parties for the tenant to remove the remaining goods at the premises by 28 January 2024, following which the landlord was authorised to dispose of anything left behind.
I also provided directions for the landlord to file written submissions and for the tenant to file a statement in reply. The landlord complied with that direction, the tenant did not.
The tenant did not attend the hearing on 19 April 2024, so the landlord’s application proceeded by way of formal proof.
I record that the first hearing was contentious; the animosity between the parties so great that it has been difficult for the Tribunal to determine the tenant’s claims in particular. It has done so as best it can from the disinterested position of an objective decision maker. The first order for rent arrears
Following a telephone hearing on 6 November 2023, the Tribunal terminated the tenancy with possession to pass to the landlord on 15 November 2023. The Tribunal made for rent arrears to 15 November for $18,478.57. The landlord has already commenced enforcing that order through the District Court collections process.
I will record part of what the adjudicator said in the order because it is relevant to my consideration of the applications before me, and I will refer to it later:
The matter was part heard on 12 September 2023. The tenant applied for an adjournment so as to allow her to file a cross claim. The adjournment was granted on a conditional basis. Between the date of the order and the final hearing, the tenant was to pay rent in full and on time. The concern being the amount of rent arrears that had accumulated by that stage. If payments were not made within 48 hours of the date on which they were due, the landlord could ask for the matter to come back before the Tribunal.
The landlord asked for the matter to be recalled as rent had not been paid in accordance with the 12 September 2023 order.
The matter was called again on 28 September 2023. The landlord said that no rent had been received. The tenant was adamant that rent had been paid on time and in full. By order dated 28 September 2023, the matter was adjourned. The tenant was given until 5pm on Friday 29 September 2023 to provide evidence of the rent payments. No evidence has been filed. At the hearing on 6 November 2023 the tenant said that she had overlooked the need to file the evidence due to the sudden illness of a family member. That may have allowed the Tribunal to extend the time for filing that evidence, but more than a month has now passed without the tenant filing the evidence required. Landlord actions after termination
After the Tribunal terminated the tenancy, the landlord issued a trespass notice on the tenant on 29 November 2023. The landlord explained that late on the night of 28 November 2023 the tenant returned to the premises and removed the smoke alarms, the light bulbs, and a set of drapes. He said he was fearful the tenant would return again so in addition to the trespass notice, he changed the locks.
The tenant did not remove all their belongings and that is why I recorded the arrangement for them to do so by 5.00pm on 28 January 2024. The tenant’s application
The tenant seeks a rent refund, compensation, and exemplary damages (marked *) as follows: •A full refund of rent - $28,600.00 •Reimbursement for work done - $2,435.00 •Reimbursement of moving costs due to nature of deceit - $2,400.00 •Reimbursement of school uniform costs - $1,000.00 •No completed tenancy agreement - $750.00 * •Landlord providing false and misleading information - $900.00 * •No Healthy Homes Statement completed - $900.00 * •Landlord failing to state the amount of rent when offering the tenancy - $1,500.00 * •Landlord inviting or encouraging bids for rent - $1,500.00 * •Insurance statement not completed - $900.00 * •Interference with privacy - $3,000.00 * •Unlawful entry by landlord - $1,500.00 * •Landlord’s wife entering property unlawfully - $1,500.00 * •Breach of ‘Healthy Homes Act’ - $7,200.00 * •Landlord interfering with services - $1,800.00 * •Failure to provide locks and keys - $1,500.00 * •Property not secure - $1,500.00 * •Compensation for broken tail bone due to injury caused by failure to repair - $5,000.00 •Compensation due to health and mental wellbeing effects - $5,000.00 •No smoke alarms - $4,000.00 * •Property not kept in a reasonable state of repair - $7,200.00 * Legal principles – exemplary damages
As can been seen, most of the tenant’s claims are for exemplary damages.
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 v Otautahi Community Housing Trust [2020] NZDC 17667 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.
As often happens, the tenant has referred to several alleged unlawful acts by the landlord and has sought the maximum award of exemplary damages for each. But as with fines, the Tribunal seldom if ever awards the maximum amount of exemplary damages. And where there are numerous claims, as in this case, any damages awarded must be proportionate to the circumstances of the tenancy over all.
The Tenancy Tribunal is one of the few jurisdictions that can award exemplary damages. It does not do so lightly. And the law prevents multiple awards for breaches arising from the same or similar actions. So, for example, deficiencies in the information provided in a tenancy agreement would be dealt with together, not separately, as would all issues arising from a proven failure to maintain and repair the premises including non-compliance with the Healthy Homes Standards (HHS).
The tenant has alleged 15 unlawful acts against the landlord. The Tribunal would not, and could not, make 15 separate awards of exemplary damages, even if it found the claims proved.
The application for exemplary damages for alleged deficiencies in the tenancy agreement (4 of the categories listed by the tenant) are dealt with together. They are largely technical breaches.
The landlord described in evidence the difficulties he experienced getting the tenant to sign the tenancy agreement. I find no breaches amounting to unlawful acts proved.
The application for exemplary damages for the failure to maintain and/or repair the premises and for the failure to comply with the HHS (2 of the categories listed by the tenant) are dealt with together.
I have considered the evidence both parties gave. The evidence does not establish that the landlord ‘tuned his mind to the act and deliberately set about to commit it’.
There is some evidence that the premises were not adequately maintained and/or repaired, but not to a level that would reach the threshold for exemplary damages. I will address this matter further under the tenant’s compensation claims.
The alleged failure to state the amount of rent when offering the tenancy and encouraging bids for rent (2 of the categories listed by the tenant) are dealt with together. The evidence does not establish any breach amounting to an unlawful act.
The alleged interference with privacy and unlawful entries (3 of the categories listed by the tenant) are dealt with together. Again, the evidence does not establish any breaches that amount to an unlawful act. The allegations made by the tenant were strongly denied by the landlord. I preferred the landlord’s evidence on this issue.
The alleged interference with services, failure to provide locks and keys, and the property not being secure (3 of the categories listed by the tenant) are dealt with together. The evidence does not establish breaches that amount to unlawful acts.
The allegation that there were no smoke alarms is dealt with separately. The evidence is in conflict. The tenant said the landlord delivered smoke alarms about 2 weeks after the tenancy started. The landlord said the tenant removed the alarms because they started beeping which suggested the batteries needed replacing; 3 of the 5 alarms were new with 10-year batteries.
I do not find that the landlord failed to provide and/or install compliant smoke alarms. Even if there was a 2-week delay, the provision of alarms was prompt.
This tenancy started on 26 February 2023. The tenant’s application was made about the time the landlord applied to terminate the tenancy for (considerable) rent arrears.
The Tribunal views with some caution an application made in those circumstances. If things were really as bad as the tenant makes out, why was there not an earlier application?
Of all the matters raised as alleged unlawful acts the Tribunal finds none proved. Either the evidence for the alleged acts does not meet the standard of proof in this jurisdiction (on the balance of probabilities) or does not establish that the landlord acted with intent (a necessary statutory element before exemplary damages can be awarded).
Another important point is this. Before the Tribunal awards exemplary damages, it must find that it would be just to do so.
In this case the tenants have not paid rent amounting to about $18,000.00 (as recorded in the Tribunal’s order in November 2023).
The landlord is unlikely to recover that money, or if he does, it will be paid over many years. That is a considerable loss to the landlord and a corresponding benefit to the tenant.
Against that background, it would be a perverse outcome, given the landlord’s loss of rent, were the Tribunal to award the tenant compensation and/or exemplary damages. It would be plainly unjust. The tenant has taken a considerable benefit by not paying rent, effectively living in the premises rent free for a long time.
The tenant’s application for exemplary damages is dismissed. 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, 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’s compensation claims are for the reimbursement of moving costs because they say the landlord was deceitful, school uniform costs, and stress and mental harm.
I do not find these claims proved. The evidence does not establish that the landlord was deceitful. This is a claim for misrepresentation of the tenancy. The tenant gave evidence that they viewed the premises at night when it was not light, and it was not until they moved in that they realised the state of the premises. By then it was too late to do anything; they had no choice but to proceed.
I do not accept that. It is plain common sense that before agreeing to take up a tenancy, a tenant should properly assess the premises and make an informed decision. The tenant had every chance to be diligent and to make sure the premises met their needs. That they did not do so falls on them. There is no evidence on which the Tribunal could conclude that the landlord misrepresented the premises.
Likewise, there is no basis on which the Tribunal could reimburse the cost of the school uniforms for the tenant’s children. The tenancy started on 26 February 2023 and ended in November. The children wore their uniforms for the full school year.
I find no claim proved for compensation for stress and for mental harm. The tenant would have the Tribunal believe that they were the innocent victims of an unscrupulous landlord. Having heard from the parties in person the Tribunal did not form that impression at all. It formed the view that the tenant’s claims were largely contrived, an attempt to be relieved of their obligation to pay rent by whatever means.
The tenant sought compensation for work they did with the landlord’s consent at the start of the tenancy, including painting and cleaning. They received reimbursement agreed at the time equivalent to 2 weeks’ rent. They now seek more. I decline to award further compensation. Agreements were made at the time. The Tribunal sees no need to interfere with agreements reached.
While the tenant has provided some evidence that the premises required some maintenance and repair (the CCC report and the MBIE compliance team report) this is a case where the Tribunal does not consider it appropriate to award compensation for the loss of enjoyment of the tenancy. The reports produced were completed by assessors who did not involve the landlord at all, so their conclusions were based solely on what the tenant told them.
The authors of the reports did not attend as witnesses. Their conclusions do not support the tenant’s submission that the premises were not fit to be rented.
The tenant’s claims for compensation are dismissed. As noted earlier, an award of compensation against a backdrop of them owing the landlord some $18,000.00 for rent (which does not take into account the additional rent owed as a result of this order) would be a perverse outcome. Compensation for personal injury
The tenant claims compensation for an injury they say occurred to one of them due to the landlord’s failure to repair concrete tile steps. Compensation for personal injury in New Zealand is provided for under the Accident Compensation Act 2001 which prevents an injured person from claiming compensation in any other forum.
The Tribunal has no jurisdiction to award compensation for the effects of personal injury accepted for cover by ACC. This claim is dismissed. Rent refund
Rent can only abate when the premises are destroyed or so seriously damaged (wholly or in part) so as to become uninhabitable. That was not the case here.
The tenant has no grounds at all to claim a full refund (or any refund) of rent.
I referred earlier to the Tribunal’s first order for rent arrears. The Tribunal expressed its frustration with the tenant’s failure to provide evidence of payments made. It seems to me that the tenant simply bought themselves time.
The order for rent arrears to 15 November 2023 was considerable - $18,478.57.
The tenant appears to have given no thought at all to the effect on the landlord of the failure to pay such a large amount of rent.
I dismiss the application for a refund of all rent paid from the start of the tenancy. Not only has the tenant not established grounds for a rent refund, but there is also already a Tribunal order for a large amount of rent arrears and a further order for rent in this decision. A rent refund now would negate the earlier order made. More importantly, the allegations made by the tenant do not establish grounds for a refund of any rent. The landlord’s application
The landlord’s application is for rent arrears, compensation for repairs and missing chattels, cleaning costs, rubbish removal and dump fees, and gardening work.
As I have noted, the landlord’s application proceeded by way of formal proof as the tenant did not defend it.

How much is owed for rent?

The landlord provided rent records which prove the amount of rent owing at the end of the tenancy, and since the date of the last order for rent arrears to 15 November 2023.
The landlord’s claim for rent arrears after 29 November 2023 is dismissed. The tenancy had ended by then and the landlord has issued a trespass notice on the tenant.

Did the tenants comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) RTA. The tenant must also replace standard light bulbs.
The landlord’s claims for the replacement of 3 smoke alarms, 30 light bulbs, a metal driveway gate; carpet cleaning; the replacement of a shower drain unit; the replacement of a bathroom robe hook; the replacement of a pane of glass in a light fitting; dump fees and rubbish removal costs; gardening and lawn mowing (landlord labour); cleaning materials and landlord labour for cleaning; and the hire of an ionisation machine to deodorise the premises are proved by invoices, photos and the evidence the landlord and his wife gave at the hearing.
The Tribunal does not award travel costs on a per km basis (part of the rubbish removal claim); that is a business expense. I have awarded compensation only for the missing drapes. The landlord has not replaced the drapes and the Tribunal must take depreciation into account.
The Tribunal has awarded the cost of lock replacement. Although the landlord changed the locks, that happened after the Tribunal had terminated the tenancy. The landlord gave evidence that the tenants had not returned the keys by that time.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
The landlord was not insured for tenant damage for this tenancy.
The tenant painted the bottom room but not a colour approved by the landlord. However, the landlord has not repainted the room. A new tenancy has started. There is no invoice to prove the loss. This claim is dismissed.
A window in the southwest bedroom on level 3 was broken. The landlord accepted a quote to repair it and the work has now been done. That claim is proved.
Two wooden venetian blinds were damaged. The landlord’s wife repaired them.
There was a hole in the master bedroom wall that required repair.
The carpet in the conservatories was damaged. I have awarded compensation for that damage taking depreciation and fair wear and tear into account. Other claims
The landlord sought the cost of enforcement fees and interest on past orders. The Tribunal does not have jurisdiction to award interest on past orders. The enforcement fees are added to the order at the time enforcement action is taken. These claims are dismissed. Result
For the reasons given, the tenant’s application is dismissed.
The landlord’s application is successful in the amount of $6,164.00 which includes the Tribunal filing fee on the successful application. Name suppression
Both parties sought an order for name suppression. I order suppression of the landlord’s name and identifying details as the application is mostly successful. The tenant is not entitled to name suppression as their application is unsuccessful – see section 95A RTA.

Tenancy Tribunal case 4794493 — Property damage

Tenancy Tribunal case 4794493 — Property damage

Order

Reasons

How much is owed for rent?

Did the tenants comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Order

Reasons

How much is owed for rent?

Did the tenants comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?