What was Tenancy Tribunal case 4817531 about?

The tribunal order states: [The applicant]’s name and identifying details must not be published.

How much money was awarded in case 4817531?

Compensation: $352.86 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4817531?

The dispute type was not classified.

Where can I read the official tribunal order for case 4817531?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10299154-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4817531 about?

The tribunal order states: [The applicant]’s name and identifying details must not be published.

How much money was awarded in case 4817531?

Compensation: $352.86 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4817531?

The dispute type was not classified.

Where can I read the official tribunal order for case 4817531?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10299154-Tribunal_Order_Redacted.pdf.

Flat 1, 7 Castleton Drive, Howick, Auckland 2014 Tenancy Tribunal Case 4817531 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4817531 — net $373.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$352.86	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$373.30
Total payable by Landlord to Tenant	$373.30

The tenant attended the hearing with a support person.

Amny Lam and Cathy Huang attended for the landlord. The landlord attended the hearing by telephone from China.

The tenant claims that the landlord breached a work order, and that the landlord’s 90-day notice may be retaliatory.

The tenant seeks compensation and exemplary damages.

Did the landlord breach the work order?

On 3 November 2023, the Tribunal made a consent work order that “the plumbing issues relating to the shower (hot water mixer and shower head) will be fixed and upgraded withing 6 weeks of the date of this order.”

The parties also agreed, and the Tribunal ordered the rent to be remain at $520.00 per week and that the landlord would pay the tenant $800.00. The tenant confirms these were done.

Breaching a work order under without reasonable excuse is an unlawful act, for which exemplary damages may be awarded up to a maximum of $5,000.00. 1

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. 2

The landlord’s plumber did not attend the premises to address the shower until more than six weeks after the Tribunal’s decision. The six-week expiry date was 15 December 2023, and the plumber did not attend until 18 December 2023. He had attempted to attend earlier but the offered times did not suit the tenant.

The plumber “fixed” the shower by installing a tempering valve and reduced the hot water thermostat temperature to reduce the risk of scalding. The plumber recommended installing a fixed shower head (instead of a flexible hose shower head) so the shower would reach a suitable temperature quicker. However, the tenant did not want a fixed shower head and that would not have solved the main issues for her anyway.

The tenant says the work made no difference. The shower temperature remained difficult to control and took a long time to reach a suitable temperature. 1 Residential Tenancies Act 1986 (RTA) s 108(2A) and Schedule 1A. 2 RTA, s 109(3).

She understood that the landlord would install a mains pressure hot water cylinder. However, the landlord did not want to incur the expense involved in that. In about February it appears the landlord cottoned on to the need to “upgrade” the mixer and shower head and asked its plumber to replace those. However, the tenant was moving out by then and they would not have made much difference anyway.

The landlord committed an unlawful act by failing to comply with the Tribunal’s work order which required an “upgrade” albeit the wording suggests that replacing the shower hardware (and not the hot water cylinder) would have sufficed.

Replacing the mixer and showerhead would have made no real difference, however. What the tenant really wanted was a decent flow of easy to control water to shower.

Probably, when it agreed to “upgrade” the shower, the landlord did not anticipate expensive works. Its plumber’s work did reinstate the shower to “a reasonable state of repair having regard to the age and character of the premises” 3 because the premises house was built in the 1950s and low pressure hot water cylinders were the norm.

I consider the landlord did commit an unlawful act and did so intentionally, albeit reluctantly.

Therefore, the Tribunal must consider ordering exemplary damages are designed to punish and to deter. 4 They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 (CA) 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 s 109 of the RTA. Section 109 of the RTA confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: 3 RTA, s 45(1)(b). 4 See for example, Gao & Jeyasingham v Landlord [2022] NZTT 4329775, 4328263 para 61 ffg. a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.

Having regard to those factors I do not consider it would be just to award exemplary damages. The work order went beyond the landlord’s maintenance obligations. It did comply with its obligations under s 45(1)(b) and did not anticipate the cost of fully upgrading the shower. I do not consider a punitive approach to the situation would be fair or just.

Therefore, I decline to order exemplary damages.

Compensation is appropriate, however. I set the tenant’s loss of amenity in having to use an outdated shower at 5 per cent of the rent from the end of the six week period by which the work was to be done, 15 December 2023, to 18 March 2024, the end of the tenancy. Was the landlord’s notice retaliatory?

The tenant claims the notice is retaliatory.

For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, 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. 5

To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate.

The thing relied on does not have to be the only thing; it only needs to be a contributing factor.

A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 6 5 RTA, s 54(1). 6 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.”

In this case, the landlord gave notice that she intended to sell the premises. Since the tenancy ended, the premises have been put up for sale and it has not been re-tenanted.

Subsequent events have shown the termination was given for genuine and fair reasons. It is not plausible the landlord was improperly motivated to sell the premises and thereby give the tenant notice because she had exercised her tenants’ rights. Filing fee

The tenant having been substantially successful in her claim, the Tribunal must order the landlord to reimburse the filing fee. Non-publication

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. 7

The tenant applies for non-publication. She has substantially succeeded in proceedings. I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.

The Tribunal grants the tenant’s application for non-publication.

Reasons

Claims and awards in Tenancy Tribunal application 4817531 — net $373.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$352.86	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$373.30
Total payable by Landlord to Tenant	$373.30

The tenant attended the hearing with a support person.

Amny Lam and Cathy Huang attended for the landlord. The landlord attended the hearing by telephone from China.

The tenant claims that the landlord breached a work order, and that the landlord’s 90-day notice may be retaliatory.

The tenant seeks compensation and exemplary damages.

Did the landlord breach the work order?

The parties also agreed, and the Tribunal ordered the rent to be remain at $520.00 per week and that the landlord would pay the tenant $800.00. The tenant confirms these were done.

Breaching a work order under without reasonable excuse is an unlawful act, for which exemplary damages may be awarded up to a maximum of $5,000.00. 1

Replacing the mixer and showerhead would have made no real difference, however. What the tenant really wanted was a decent flow of easy to control water to shower.

I consider the landlord did commit an unlawful act and did so intentionally, albeit reluctantly.

Therefore, I decline to order exemplary damages.

The tenant claims the notice is retaliatory.

To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate.

The thing relied on does not have to be the only thing; it only needs to be a contributing factor.

In this case, the landlord gave notice that she intended to sell the premises. Since the tenancy ended, the premises have been put up for sale and it has not been re-tenanted.

The tenant having been substantially successful in her claim, the Tribunal must order the landlord to reimburse the filing fee. Non-publication

The Tribunal grants the tenant’s application for non-publication.

Tenancy Tribunal case 4817531 — Tenancy dispute at Flat 1, 7 Castleton Drive, Howick, Auckland 2014

At a glance

Tenancy Tribunal case 4817531 — Tenancy dispute at Flat 1, 7 Castleton Drive, Howick, Auckland 2014

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord breach the work order?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord breach the work order?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions