What was the outcome of Tenancy Tribunal case 4827240?

The tribunal order states: West Management Limited For Young Sun Choi And Other Trustees and Young

How much money was awarded in case 4827240?

Compensation: Broken Guttering: $250.00 awarded to tenant; Compensation: Electrical Issues: $250.00 awarded to tenant; Compensation: fail to maintain sleep…: $18,150.00 awarded to tenant; Compensation: Hole In Ensuite Floor: $1,000.00 awarded to tenant; Compensation: Leaks: $18,157.50 awarded to tenant; Compensation: Stove: $500.00 awarded to tenant; Property Damage: $2,750.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4827240?

The primary dispute was Leaks. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4827240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11056932-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4827240?

The tribunal order states: West Management Limited For Young Sun Choi And Other Trustees and Young

How much money was awarded in case 4827240?

Compensation: Broken Guttering: $250.00 awarded to tenant; Compensation: Electrical Issues: $250.00 awarded to tenant; Compensation: fail to maintain sleep…: $18,150.00 awarded to tenant; Compensation: Hole In Ensuite Floor: $1,000.00 awarded to tenant; Compensation: Leaks: $18,157.50 awarded to tenant; Compensation: Stove: $500.00 awarded to tenant; Property Damage: $2,750.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4827240?

The primary dispute was Leaks. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4827240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11056932-Tribunal_Order.pdf.

386 Henderson Valley Road, Henderson Valley, Auckland Tenancy Tribunal Case 4827240 — Leaks

Claims and awards in Tenancy Tribunal application 4827240 — net $46,327.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: fail to maintain sleepout	$18,150.00	fail to maintain sleepout
Exemplary damages: fail to maintain sleepout	$500.00	fail to maintain sleepout
Compensation: leaks	$18,157.50	leaks
Exemplary damages: leaks and fail to maintain sleepout	$3,000.00	leaks and fail to maintain sleepout
Compensation: broken guttering	$250.00	broken guttering
Exemplary damages: broken guttering	$250.00	broken guttering
Compensation: electrical issues	$250.00	electrical issues
Exemplary damages: electrical issues	$250.00	electrical issues
Compensation: stove	$500.00	stove
Exemplary damages: stove	$500.00	stove
Compensation: hole in ensuite floor	$1,000.00	hole in ensuite floor
Exemplary damages: hole in ensuite floor	$750.00	hole in ensuite floor
Exemplary damages: Breach of quiet enjoyment	$2,750.00	Breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$46,327.94
Total payable by Landlord to Tenant	$46,327.94

Claims and awards in Tenancy Tribunal application 4827240 — net $46,327.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: fail to maintain sleepout	$18,150.00	fail to maintain sleepout
Exemplary damages: fail to maintain sleepout	$500.00	fail to maintain sleepout
Compensation: leaks	$18,157.50	leaks
Exemplary damages: leaks and fail to maintain sleepout	$3,000.00	leaks and fail to maintain sleepout
Compensation: broken guttering	$250.00	broken guttering
Exemplary damages: broken guttering	$250.00	broken guttering
Compensation: electrical issues	$250.00	electrical issues
Exemplary damages: electrical issues	$250.00	electrical issues
Compensation: stove	$500.00	stove
Exemplary damages: stove	$500.00	stove
Compensation: hole in ensuite floor	$1,000.00	hole in ensuite floor
Exemplary damages: hole in ensuite floor	$750.00	hole in ensuite floor
Exemplary damages: Breach of quiet enjoyment	$2,750.00	Breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$46,327.94
Total payable by Landlord to Tenant	$46,327.94

Order

West Management Limited For Young Sun Choi And Other Trustees and Young Sun and Eun Choi’s application for termination of the tenancy is dismissed.
West Management Limited For Young Sun Choi And Other Trustees and Young Sun and Eun Choi’s applications for rent arrears is dismissed.
West Management Limited For Young Sun Choi And Other Trustees and Young Sun and Eun Choi must pay Amy Toni Jesensek and Isaac William Fari $46,327.94 immediately as compensation set out in the table below.

Reasons

This is a cross-application which was conducted over three days; a case conference on 12 June 2024, and the hearing on 29 August 2024 and 8 November 2024. The parties
At the case conference which was held by teleconference, Mr Teague from West Management Limited, (“West”) for the landlord and Amy Jesensek for the tenants confirmed their respective claims. Mr Teague also requested that Young Sun Choi, the owner, be joined as a landlord party. Mr Teague stated that his contract to manage the property had ended on 15 May 2024, and the current landlord was now Mr Choi himself.
Ms Jesensek stated that she had had ongoing dealings directly with Mr Choi and was now paying him the rent directly. The tenants agree that Mr Choi should be joined as a party.
Following this case conference, Mr Choi was joined as a party to the application. The claims
The landlord brings the following claims: a. Termination of the tenancy b. Rent arrears.
The tenant brings the following claims: a. Failure to maintain premises b. Breach of Healthy Homes Moisture Ingress Standard c. Breach of Healthy Homes Heating Standard d. Failing to maintain the premises e. Breach of quiet enjoyment.
The tenants seek compensation by way of reduced rent for the duration of the tenancy, and exemplary damages. Relevant Law
Section 45(1)(bb) of the RTA, requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Compliance dates for the HHS vary depending on the tenancy: All private rental tenancies that began before 1 July 2021 must comply by 1 July 2025.
This tenancy began on 24 October 2019. A variation was made in early 2024 to exclude the sleepout from the tenancy agreement. Variations to agreements such as this, do not change the compliance timeframe for tenancies. As such, the compliance date for this tenancy is 1 July 2025.
I have therefore determined that this tenancy does not yet need to comply with Healthy Homes legislation. The tenants’ claims regarding breaches of HHS are dismissed.
Section 109 of the Residential Tenancies Act, 1986 (the “RTA”) covers the time limits on bringing claims for exemplary damages: 109Unlawful acts (1)Any of the following persons (A) may apply to the Tribunal for an order requiring any other person (B) to pay to A an amount in the nature of exemplary damages on the ground that B has committed an unlawful act: (a)a landlord: (b)a tenant: (c)the chief executive acting as the person responsible for the general administration of this Act or in the place of a landlord or a tenant under section 124A. (2)A landlord or a tenant may not apply under subsection (1) later than— (a)12 months after the termination of the tenancy in the case of— (i)an unlawful act to which section 19(2) refers; or (ii)a failure to keep records in respect of bonds that is an unlawful act to which section 30(2) refers; or (b)12 months after the date of commission of the unlawful act in the case of any other unlawful act.
Exemplary damages are therefore only available to the tenants for unlawful acts that the landlord committed in the 12 months prior to the application date of 4 March 2024. Preliminary matters 29 August 2024
Amy Jesensek and Isaac Fari attended the (two day) hearing as the tenants. Young Sun Choi and Tony Teague attended the hearing as the landlords on the morning of 28 August 2024. Mr Teague gave his apologies and was unable to attend on the afternoon of 29 August 2024. On 8 November 2024, both Mr Teague and Mr Choi attended.
Prior to the first day of the hearing, on 27 August 2024, Mr Choi requested an adjournment of the hearing for medical reasons. A medical certificate was supplied which stated Mr Choi was “medically unfit for work” from 28 August – 30 August 2024. No further details were provided.
I considered whether an adjournment should be granted. I asked the registry to contact Mr Choi for more details about his condition. No response was received from Mr Choi. The registry contacted the tenants for their views on an adjournment and they were opposed, stating the case was already five months old and they were suspicious this was a delaying tactic.
Without more information from Mr Choi on which to assess whether his condition was sufficient in my view to outweigh the prejudice caused by delaying the hearing (potentially for several months), I declined the adjournment application with a view to addressing the issue again at the beginning of the hearing, if the need arose.
On the morning of the hearing Mr Choi appeared wearing a mask. He said he had done a COVID test but hadn’t got the results. It wasn’t clear why he hadn’t got the results. I became aware that an interpreter was probably required. The hearing was briefly adjourned so inquiries could be made regarding an interpreter.
An interpreter was requested, and they advised they would arrive at 11.30 am.
At 11.25 am, the Tribunal reconvened with a Korean interpreter to assist the Tribunal and Mr Choi.
I enquired about Mr Choi’s current health. Mr Choi confirmed he hadn’t received a positive result from a COVID test, and he felt well enough to continue with the hearing. All others present were also happy to continue with the hearing with Mr Choi present.

Is Mr Choi the landlord?

Towards the end of the hearing on 8 November 2024, Mr Choi began insisting that he was not a landlord and he was only attending the hearing as a witness for Mr Teague.
Despite Mr Choi’s submissions towards the end of the hearing, I nevertheless determine that Mr Choi is the landlord. My reasons are as follows: a. Mr Choi stated that the Tenancy Agreement states that NZ Tourism Holding Limited is the landlord. NZ Tourism Holding Limited is a company with one director, Jisun Choi. Mr Choi stated that NZ Tourism Holding Limited is his daughters’ company. Mr Teague stated that it was Mr Choi or his wife (also a named party in this cross-application) who signed the management agreement with West. b. Mr Teague stated that during the management of the tenancy it was predominantly Mr Choi who he dealt with as the landlord. c. The tenants provided oral information during the hearing that they have had ongoing dealings with Mr Choi, both during the period when the tenancy was being managed by West and subsequently when Mr Choi took over managing the property. During this period Mr Choi repeatedly held himself out to be the landlord, both in writing and orally. Mr Choi signed emails as “Landlord”. d. No mention of anybody else from Mr Choi’s family other than Ms Choi acting as a landlord was made by any party during the hearing. e. Following the end of West’s management contract for the property, the tenants stated that they have paid rent directly to Mr Choi, at his request. f. Mr Choi provided information to the Tribunal about his relationship with West and why he considered the tenants’ claims to be the responsibility of West. This indicates an understanding on Mr Choi’s part of the issues with the tenancy from a landlord’s perspective.
In short, Mr Choi had held himself to all parties as the landlord up until the very end of the Tenancy Tribunal hearing.
For the above reasons, I determine that Mr Choi is correctly identified as the landlord (albeit as a representative for NZ Tourisms Holdings Limited if he so wishes it to be) for the purposes of these tenancy applications. Landlord’s claims Rent arrears and termination of tenancy
On 29 August 2024, Mr Teague advised that due to cancelling his contract as property manager with Mr Choi on 15 May 2024, he was no longer seeking termination of the tenancy.
On 29 August 2024, Ms Jesensek advised that since May 2024 they had been paying rent directly to Mr Choi, and Mr Choi confirmed this. Neither Mr Choi nor Mr Teague had an up-to-date rent summary, so this claim was adjourned as it was not possible to ascertain the current rent arrears. Mr Choi stated that he had never calculated the rent arrears exactly, but it was “about $20,000”. Mr Choi was advised he would need a current rent summary, and this was recorded in the Minute issued after the first day of the hearing.
On 8 November 2024 Mr Teague produced a rent summary which shows that up until 25 June 2024 rent arrears amounted to $20,704.14. I consider this to be reliable information. However, since that date, rent has been paid to Mr Choi directly. Despite the aforementioned Minute and prompts to Mr Choi during the hearing for supporting information or documents, Mr Choi did not provide any information regarding the amount of rent paid since 25 June 2024. Without this information it is not possible to assess how much rent if any is owed as at the date of the hearing. For this reason, I am unable to find the claim for rent arrears proved.
The landlord’s original application included an application to have the tenancy terminated. As noted above, Mr Teague withdrew his application for termination on 29 August 2024, and when on 8 November 2024 Mr Choi stated he was only attending as a witness and not a landlord, he put himself in a position where he was unable to seek termination of the tenancy. Ultimately Mr Choi conceded that his application for termination of the tenancy could not be sustained and he sought to withdraw the claim. As such, the claim for termination of the tenancy is dismissed.
In dismissing this claim I make the comment that if this matter is not resolved privately by the parties, it is somewhat inevitable that the landlord will file another, better supported application for rent arrears. Tenants’ claims
The tenants’ claims include seeking a partial rent refund due to some of the bedrooms at the premises not being usable for a period of time. There was discussion as to how many of the bedrooms were in the main house, and how many were in the sleepout, and whether or not the sleepout was part of the tenancy.

How many bedrooms are there in the main house?

The premises in question is a property with a main house and a detached double carport and sleepout.
The tenants state that the main house has three bedrooms. Mr Teague stated the main house has four bedrooms. Mr Choi stated the main house has five bedrooms.
The tenants state that the fourth “bedroom” is a small room with a doorframe but no door, through which is the only access to the main bathroom for the house. The tenants stated that on the doorframe there are no recesses that show a hinge was ever mounted, meaning it appears there has never been a door for this room. The tenants were adamant there was no way this room could be used as a bedroom.
Mr Teague believes there has been a door to this fourth room.
On the second day of the hearing, the tenant produced photographs of the doorframe that show there is no sign of hinges or door latch in the door frame.
The fifth room that Mr Choi refers to may be better described as a second living area.
I determine the main house has three bedrooms; a master bedroom with ensuite and two other bedrooms. I accept the tenants’ information as most reliable regarding the fourth room as they currently both live there.

Is the sleepout part of the premises of this tenancy?

The tenants stated the sleepout is within two metres of the main house. A photograph that Mr Choi provided show it to be right up alongside the main house. The tenants stated that the sleepout consisted of two bedrooms, a kitchenette, living space and bathroom. At the beginning of the tenancy, the tenants were provided with keys to the sleepout and whenever practical, the sleepout was included in tenancy inspections.
The tenancy agreement lists four tenants and states that a maximum of 8 people may reside at the property.
The tenants produced an email to Mr Choi dated 17 June 2024, in which it is proposed that as of 20 June 2024 the tenancy continues only for the main house and not the sleepout, and the rent is reduced from $1.030.00 per week, to $630.00 per week.
Mr Choi confirmed that this proposal was agreed by both parties.
On the basis of the above information I determine that the sleepout was included in the premises at the beginning of the tenancy and ceased being part of the tenancy as of 20 June 2024.

Is the sleepout an unlawful premises?

The tenants produced a Safe and Sanitary Report dated 06/12/2006 in which Property Solutions Group Ltd conducted a survey of the sleepout. At clause 7, the report states the sleepout complies with building bylaws of the day and the works are neither dangerous nor insanitary in consideration of the Building Act 1991.
The tenants have focussed on clause 8 which states that the work was unauthorised and did not include a building consent. The tenants’ view is that the landlord is in breach of section 36 of the RTA which requires the landlord to take all reasonable steps at the beginning of the tenancy to ensure there are no legal impediments to the occupation of the premises for residential purposes. Their view is that because a building consent has not been issued for the premises, the sleepout is unlawful.
The tenants also believe the landlord should have disclosed the fact that the sleepout is not a consented building to them at the beginning of the tenancy.
The tenants are seeking a refund of $92,000.00 from the landlord, calculated at $200.00 per bedroom, multiplied by two bedrooms in the sleepout, multiplied by 230 weeks from the beginning of the tenancy until 20 June 2024.
The point of the Safe and Sanitary report is to assess whether or not unconsented buildings are safe and sanitary for residential purposes. It serves a retrospective function, similar to a building consent, for buildings that had been built without a consent prior to council requirements being updated in the early 1990’s.
Because the sleepout passed its safe and sanitary inspections, the council regards it as a compliant building for residential purposes.
Because of this, I do not accept the tenants’ claims that the sleepout is unlawful. This claim of the tenants is not proved. Failure to maintain, Section 45 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(1A) and Schedule 1A Residential Tenancies Act 1986.
A landlord’s obligation to maintain a property is set out in the RTA, see section 45(1)(b). This includes the requirement that the landlord provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises.
The extent of the landlord’s obligation to repair was considered in the decision of Barfoot &Thompson v Casey (CIV-2005-004-001762, 7 November 2007). The Court noted that there was no absolute liability /responsibility obligation, so the landlord does not have to foresee a latent and unobservable defect before it causes damage. The tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair, see RTA, section 40(1)(d). Once notified, the landlord is obliged to repair within a reasonable time. The Court stated: ...the obligation of the landlord, under s.45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances; and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate and put right what ever the probable may be. (Collins v Professional Hutt City Ltd, DC Wellington, CiV-2009-085.)
In the present case the tenant must be able to prove, on the balance of probabilities, that the premises were not in a reasonable state of repair, that the landlord had notice of the problems, and the landlord failed to repair them within a reasonable time.
The tenant claims that the landlord has breached their obligations under section 45 of the RTA in the following regards: a. Leaks through the roof and through broken guttering b. Excessive mould in the sleepout rendering it uninhabitable c. Electrical faults d. Stove not working e. Hole in the floor of the ensuite The leaks
Throughout this tenancy, these premises have been beset with leaks through the ceiling whenever it rained. There are two main leaks, one in the kitchen and one in the living room, as well as several smaller leaks in the backroom, the laundry and the master bedroom. The main leaks occur every time it rains which the tenant claims is on a weekly basis although they claim that some weeks it rains every day. The smaller leaks occur only every now and then in more extreme rain.
In summary the tenant made the following submissions about the leaks: a. Kitchen: i. Leaked every time it rained; water would drip off a beam onto the kitchen floor where it puddled. The tenant stated that she was continually stepping into the puddle of water while wearing socks. ii. The landlord was notified in June 2021, July 2022, June 2023, February 2024 of the leaks. The tenant also raised the issue at every inspection. iii. On two occasions someone came to look at the problem: In June 2021 a company came to quote on the cost of a new roof, but they never came back. On a second occasion Mr Choi attended and applied a sealant, but the repair was unsuccessful. iv. The leak still persists. b. Backroom: i. Water came in through the corner of the backroom ceiling. ii. The landlord was notified in June 2023. iii. Nothing was done about the leak. The leak has since dried up. c. Living room: i. Leaked every time it rained, predominantly around the chimney. Drips would run down the flue and settle on the fireplace. Other areas of the lounge also leaked in heavy rain. ii. The landlord was notified in June 2021, July 2022. iii. The landlord did nothing to repair the leaks. During a storm in January 2023, the chimney collapsed and fell in. After this, the landlord came and nailed down some of the loose tiles. iv. The chimney wasn’t repaired until July 2023. Until that time the house was without any source of heating. The leaks in other parts of the lounge still persist in heavy rain. d. Master bedroom: i. Leaked occasionally in heavy rain through the knots in the solid wood ceiling. The drips fell onto the bed, wetting the bedclothes. e. Laundry: i. Leaked during “the big storm” in January 2023.
Mr Choi didn’t dispute the tenant’s information and said that every time there was a complaint he attended the property. The tenants did not agree with this submission.
Mr Choi stated that with regard to the chimney repairs and the living room leaks, he spoke to the tenants who agreed to do some of the repairs. The tenants deny this was ever agreed.
Mr Choi stated that with regard to the leak in the master bedroom, money was offered to the tenants in compensation.
The leaks have been a long-term issue during this tenancy and the landlord has not adequately dealt with them. The tenancy began in October 2019, over five years ago. It is clear the landlord has been informed of the leaks on multiple occasions during this time.
I consider general damages are appropriate to reflect the lack of weathertightness for the duration of the tenancy. There is no formula for calculating loss of amenity. However I consider weathertightness to be a fundamental function of a house. The lack of weathertightness on the whole caused significant inconvenience some of the time, particularly from January 2023 through to July 2023 after the chimney fell in and there was no heating in premises, and moderate to low inconvenience at other times.
I consider a rent reduction of 7.5% of the total rent across the whole of the tenancy to date is an appropriate amount to compensate the tenants for this breach. a. The tenancy began on 24 October 2019 at a rental of $950.00 per week and continued at this amount until 1 October 2023. This amounts to 205 weeks and a total of $194,750.00. b. The rent increased to $1,030.00 per week on 2 October 2023 and continued at this amount until 19 June 2024. This amounts to approximately 35 weeks and a total of $36,050.00 c. The rent reduced to $630.00 on 20 June 2024 and has continued at this amount since then which up to the date of the hearing is approximately 18 weeks for a total of $11,340.00.
The total rent due for the whole tenancy, (calculated without the benefit of an up-to-date Rent Summary) therefore amounts to $242,140.00. 7.5% of this amount is $18,157.50.
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) Residential Tenancies Act 1986.
The leaking has been a continuing breach and I determine that it falls within the 12-month statutory timeframe required under section 109 of the RTA. The public interest in providing weathertight homes is high and the impact that the leaks had on the tenants over a prolonged period was moderate to severe. I do not accept Mr Choi’s evidence that he attended every time he was notified about the leaks; the leaks have persisted throughout the tenancy.
I determine that a high award of exemplary damages of $3,000.00 is appropriate in the circumstances for this serious, long-term breach. The guttering
The tenants stated the guttering was blocked and broken. At the beginning of the tenancy the tenants contacted the landlord and arranged for a rent reduction in lieu of cleaning out the gutters. More recently the tenants made the same offer to the landlord, but the landlord stated that Mr Choi wanted to replace the entire roof and guttering at the same time. That work was not undertaken and the overflowing guttering still persists. The effect is a constant dripping outside the master bedroom window whenever it rains, and an inability to use the washing line which is under cover, when it rains. The tenants state the leaking gutters have been a long-term issue and they have notified the landlord about it on many occasions. On the second day of the hearing a photograph was produced that show plastic guttering that has come apart at the join.
Mr Choi didn’t dispute the tenant’s information and stated it was a small problem that didn’t affect the tenants very much.
I determine that the loss of amenity was minimal and general damages of $250 is appropriate in the circumstances.
I also determine that this was a continuing breach and when considering the factors under section 109 RTA I consider exemplary damages of $250.00 appropriate in the circumstance. The sleepout
The tenants stated that the sleepout had a serious problem with mould that went beyond being an issue that they as tenants could deal with. The tenants engaged a mould specialist who used infra-red imaging and detected water entering the roof cavity. The ceiling, kitchen cabinetry and vinyl flooring all had water damage and were significantly affected by mould.
The tenants stated that they raised the issue of mould with the property managers on several occasions, including to the property manager “Eden” by email in October 2021, and “Jo” in October 2023 including photographs on both occasions.
Mr Teague stated that when they were notified by the tenants, they raised the issues with Mr Choi, but West could only act with Mr Choi’s approval and Mr Choi never gave it.
The tenants are seeking compensation of $200.00 per bedroom, x 2 bedrooms x 121 weeks for the sleepout being “uninhabitable” during this time.
During this period the tenants did continue to use the sleepout, although it was difficult to find flatmates who were prepared to use the sleepout as bedrooms. Eventually the sleepout was used to store belongings in.
Mr Teague referred to the sleepout as “horrible” and stated that when the bathroom collapsed due to rot, West repaired the bathroom at their own cost when Mr Choi wouldn’t provide funds to repair it.
It has been noted in such decisions as NZTT 4310605 that mould is commonly present through all residential dwellings in New Zealand to some degree. In that decision, Adjudicator Woodhouse explained that simply having mould in the premises would not be sufficient to establish a breach on the part of the landlord for which compensation can be ordered: “Rather, what a tenant must establish, is that there are defects with the premises which have caused mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling that meets the required building standards.”
In the Order NZTT 4316209 Adjudicator Pasupati noted: In Auckland, many houses produce mould, particularly in view of the levels of humidity in this region. Such mould can usually be addressed by wiping with an appropriate cleaner. Where a property has an inherent problem or leak causing mould then the landlord will have responsibility to remedy the fault. As noted by the Tribunal in Hullia v Tran & Vu (NZTT 4138867) the premises must be able to be used and lived in, in the normal way without excessive mould developing. If this cannot be done the problem of mould falls on the landlord to remedy under their obligation to maintain the property.
The oral information that the tenants provided regarding the higher than usual levels of moisture in the ceiling of the sleepout, as well as the information regarding the sleepout bathroom falling in, the mould throughout the sleepout that was very difficult to control and the kitchenette cupboards falling apart, persuades me that the sleepout had maintenance problems probably due weathertightness issues in the roof at some stage, although possibly from another source. I am persuaded the landlord breached his obligation to maintain the sleepout.
The claim is proved.
I note that Mr Choi reduced the rent from $1,030.00 per week, to $630.00 per week in exchange for no longer including the sleepout in the tenancy in June 2024. This is a reduction of approximately 40% of the overall rent.
I determine that the loss of amenity was partial,(although on this reduced scale more complete than the loss of amenity in the main house) and without detailed information I make a conservative award in the tenants’ favour of $150.00 (37.5%) per week compensation for the 121 weeks that the tenants are seeking. This amounts to $18,150.00.
In considering exemplary damages I take account that the sleepout was not part of the main house, the duration of the breach, and the public interest in premises being maintained by landlords in a timely manner. I award exemplary damages of $500.00. Electrical faults
The tenants stated that on 28 January 2024 the switchboard at the premises began to make a loud humming noise. The lights in the house began to surge, and the lights in the fridge and on the coffee machine began to switch on and off. The tenants switched off the power at the switchboard and called West. On 30 January 2024, Mr Choi attended but no electrician. On 2 February 2024 the tenants called West again.
On 3 February 2024 Vector technicians were seen in the street and shortly after, the power came back on for everything but the hot water cylinder.
The tenants called West again, about the hot water.
On 8 February 2024 a Vector technician attended and said the problem was with the house.
On 12 February 2024 West advised the tenants that the owner and an electrician would attend. Despite several further calls to West nothing was done until 27 February when an electrician attended and discovered that the hot water switch had inadvertently been turned off at the switchboard.
The tenants accept that they had probably thrown the hot water switch to “off” when the switchboard had been humming, but they stated that the switchboard was old, the switches are not labelled, and some switches are up for ”on”, and down for “off”, and some are the other way around. The tenants state that given the condition of the switchboard, the historical problems with the house and the recent activity with Vector, the landlord should have sent someone to address the problem sooner than they did.
Mr Teague didn’t dispute the tenants’ submissions but stated that he notified Mr Choi, but Mr Choi wouldn’t authorise him to send a technician.
Mr Choi didn’t dispute the tenant’s information and accepted that he didn’t send someone quick enough. Mr Choi said he considered it was a problem caused by the tenants misusing the switchboard.
Having considered the parties’ submissions I am of the view that in the first instance the tenants had reason to believe there was a problem with the premises. They notified the landlord as they are required to do under section 40 of the RTA, and the landlord failed to respond in a reasonable timeframe which they are required to do under section 45 of the RTA.
The breach is proved.
I consider hot water to be a basic necessity for tenants, and the tenants were without hot water for almost a whole month. No reason has been given by Mr Choi as to why it took so long to get a technician to attend to a matter that was urgent and could have had serious safety implications. That the problem was caused by the tenants makes no difference until that fact has been established, at which time the landlord may seek compensation from the tenant.
I award $250.00 general damages compensation for the loss of amenity for one month. Considering the potential safety factors, the basic nature of the amenity concerned, the relative short period of time of the breach, the number of times the tenant contacted the landlord regarding the problem, and the lack of any reason given for not addressing the problem I consider exemplary damages of $250.00 is appropriate for this breach. Stove
The tenants stated that one element on the stove stopped working in September 2022 and has not worked since. Since then, two other elements have ceased to work properly – they only operate on full. This means the tenants have one element out of four working properly on the stove. The tenants produced a photograph that shows one of the elements burnt through.
The tenants say they contacted the agent by email in 2022 and again during inspections but nothing was done. At one of the inspections a property manager suggested the whole oven could be replaced.
Mr Teague did not dispute the information, but stated he was unable to get Mr Choi’s approval for the repairs.
Mr Choi didn’t dispute the tenant’s information and declined to make any comment.
The claim is proved.
The tenants have had partial but not full use of the stove for two years. I consider $250.00 per year general damages for loss of the amenity is appropriate ($500.00 total), and $500.00 exemplary damages for the continuing breach. Hole in the floor of the ensuite
The tenants are claiming damages for a hole in the floor of the ensuite bathroom. The tenants produced a photograph of a hole in the middle of the room approximately the size of the base of a bucket. The floor has a linoleum covering which obscures full view of the problem. However it is clear the hole is large and is the result of a significant structural issue. The tenants stated that beneath the hole is the earth approximately two feet below. The tenants state that they sent photographs to the landlord of the hole in April 2023.
Mr Teague didn’t dispute the tenants’ information, but stated that his company could not get approval to fix the hole.
Mr Choi didn’t dispute the tenant’s information but stated that he was unaware of the problem.
The claim is proved.
I consider this to be a significant breach of the landlord’s obligation to maintain the premises under s45 of the RTA. There are obvious safety issues associated. I award $1,000.00 general compensation and $750.00 exemplary damages for the breach. Breach of quiet enjoyment
Amy Toni Jesensek and Isaac William Fari claim the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants stated that between August 2023 and November 2023, Mr Choi initiated contact with the tenants on ten occasions. Each of these occasions then involved several or many texts from each party. During this period, West was the property manager of the property.
The first occasion of Mr Choi contacting the tenants was on 7 August 2024. Mr Choi texted Ms Jesensek many times about ending the management contract with West because Mr Choi said he did not trust them.
Ms Jesensek wasn’t sure who she was dealing with. When she asked for the texter’s identity, Mr Choi said he was a maintenance person.
In a later text conversation Mr Choi stated that the contract had ended with West, and he requested that the tenants pay him directly. Ms Jesensek called West who advised her that the contract between West and Mr Choi had not ended.
In another text conversation in November 2023, Mr Choi repeatedly asserted that other potential tenants were prepared to pay more for the property.
During one conversation in December 2023 when Ms Jesensek asked Mr Choi if he was the landlord, Mr Choi responded with “Part landlord”.
Ms Jesensek stated that from January 2024 to June 2024, she received many emails from Mr Choi regarding inspections.
Ms Jesensek produced an email from Mr Choi to the tenants dated 27/03/2024 that states: “Please remind [sic] that your tenancy come to an end, and remove all your belongings by 5:00pm 16 April 2024.”
This notice appears to be a notice to end the tenancy without lawful grounds, and as such is a breach of the RTA section 60AA. The tenants have not made a claim under this section.
Ms Jesensek produced another email from Mr Choi to the tenants dated 12/04/2024, with Mr Choi’s email address included and signed “Young” and two phone numbers, which states: “in relation to Tresspass [sic] Act 1980, I am instructed to warn you to stay off the premises at 386 Henderson Valley Road Auckland from the date and time at 5:00 PM 16 April 2024.”
A similar notice was also sent on 6/05/2024, signed “Young, The landlord”.
On 16 April 2024, the tenants were advised that an inspection would be conducted on their property on the following day.
On 25 April 2024 the tenants were about to leave the property to visit a family member when an unknown van drove up the driveway. The driver of the van asked the tenants if they knew “Young” and then showed the tenants texts written the day before from Young saying that the driver was welcome to stay at the address, 386 Henderson Valley Road and to charge his devices at the address. Young’s texts suggested that the driver of the van organise a $500.00 “portaloo” to be put on the property.
The tenants felt compelled to oblige the driver of the van, but didn’t feel comfortable letting a stranger into the premises unattended. The tenants called a friend to watch over the property while they went to visit their family.
The tenants say they felt they shouldn’t have been put in such an awkward position.
Mr Choi admitted knowing the driver of the van but said he didn’t know the driver was going to go to 386 Henderson Valley Road. This is contrary to the contents of his text messages which invites the driver to the property.
On 6 May 2024 the tenants received an email from Mr Choi advising them that “your premises will be inspected on 7 th and 8 th May” (2024). Neither of these notices complies with the notice period in the RTA section 48(2)(b), which requires a minimum of 48 hours’ notice for an inspection.
On 10 May 2024 “Young Sun Choi” prepared and served a Trespass Notice under the Trespass Act 1980 on the tenants. Ms Jesensek then attended a police station and was advised that because the dispute was a civil matter, the police would not be enforcing the Order.
I am persuaded that the events listed above amount to harassment by Mr Choi, acting as the landlord, on the tenants. In this regard Mr Choi has committed 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. See section 109(3) Residential Tenancies Act 1986.
For the following reasons I consider this to be a very serious case of harassment by the landlord: a. The harassment lasted 11 months from the beginning of August 2023 until June 2024 by which time the tenants had lodged an application with Tenancy Services. The harassment involved many text conversations, emails, and personal encounters. b. During the bulk of this time, there was a property manager in place who Mr Choi should have been relying on to conduct affairs with the tenants. Mr Choi apparently disregarded the advice he was given about residential tenancies law and the rights of his tenants. c. Mr Choi initially attempted to conceal his identity and status as the property owner/ landlord and in this regard was deceitful. d. The harassment included more than one attempt to unlawfully terminate the tenancy. e. The attempt to involve the police in a criminal action was particularly stressful for the tenants. f. Without giving the appropriate notices, Mr Choi appeared to pressure the tenants to pay more rent. g. Mr Choi’s actions were purely self-serving; there was no inadvertence about them. h. Quiet enjoyment of a person’s private home space is a fundamental benefit of contracting into a tenancy agreement.
Because of the length of time that the breach continued for, and the seriousness of the breach, I determine that an award near to the maximum amount of exemplary damages available for this breach is warranted. I award $2,750.00. Filing fee
Because the tenants have substantially succeeded with their claims I have reimbursed the filing fee.

Tenancy Tribunal case 4827240 — Leaks at 386 Henderson Valley Road, Henderson Valley, Auckland

At a glance

Tenancy Tribunal case 4827240 — Leaks at 386 Henderson Valley Road, Henderson Valley, Auckland

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is Mr Choi the landlord?

How many bedrooms are there in the main house?

Is the sleepout part of the premises of this tenancy?

Is the sleepout an unlawful premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is Mr Choi the landlord?

How many bedrooms are there in the main house?

Is the sleepout part of the premises of this tenancy?

Is the sleepout an unlawful premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions