What was Tenancy Tribunal case 4837420 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4837420?

Property Damage: $20.44 awarded to landlord; Immediately Being: $1,200.00 awarded to landlord

What type of tenancy dispute was case 4837420?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4837420?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10291055-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4837420 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4837420?

Property Damage: $20.44 awarded to landlord; Immediately Being: $1,200.00 awarded to landlord

What type of tenancy dispute was case 4837420?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4837420?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10291055-Tribunal_Order_Redacted.pdf.

100 Elizabeth Street, Riccarton, Christchurch 8041 Tenancy Tribunal Case 4837420 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4837420. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
immediately being	$1,200.00		immediately being
exemplary damages and	$20.44		exemplary damages and

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
Braziers Limited must pay [The tenant/s] $1220.44 immediately being $1,200 exemplary damages and $20.44 filing fee.

Reasons

Both parties attended the hearing.
The tenants claim exemplary damages for the breach of the landlord’s obligations in respect of smoke alarms. Law
Under section 45(1)(ba) of the Residential Tenancies Act 1986 (the Act), a landlord must comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under s138A of the Act.
The Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 made under s138 require landlords to install compliant smoke alarms in every bedroom or within three meters of the door of every bedroom in the premises.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
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. Background
This tenancy began on 26 January 2024.
The premises are two storied with a bedroom on the ground floor and four bedrooms upstairs.
It seems that during the previous tenancy there was a smoke alarm within three meters of the downstairs bedroom and another within three meters of the upstairs bedrooms. There was another, hardwired, smoke alarm upstairs that was not operational.
At the ingoing inspection, the two smoke alarms were found on the kitchen bench. One was working and other wasn’t. The agent would have fitted the working alarm downstairs, but he could not reach the fitting.
He then placed a work order with the landlord’s preferred smoke alarm contractor Smoke Alarm Testing Services (SATS) to provide a smoke alarm and to install it and the one working smoke alarm.
Braziers told the tenants that smoke alarms would be installed in the premises on 26 January, the first day of the tenancy.
According to SATS’ records produced to the Tribunal, they booked the job for 26 January on the understanding that the premises would be vacant.
Their records suggest that the tenant cancelled the booking. Braziers said that SATS told them that it was due to one of the tenants being unwell.
I note that the records have entries referring to the “tech” being sick.
The tenants said that SATS first contacted them on 29 February by telephone and they agreed that the alarms would be installed on 4 March. The caller withheld their number and so there was no way that the tenants could contact SATS directly.
Because Braziers and SATS expected the premises to be unoccupied on 26 January, there was no need to provide SATS with the tenants’ contact details and they were not provided. If follows that the tenants could not have contacted SATS on 26 January to cancel the appointment.
Braziers referred to a subsequent employment issue within SATS that resulted in an employee leaving the firm and it seems the most likely explanation for the suggestion from SATS that the tenants cancelled the job on 26 January is that it was bogus.
On 5 February the tenants informed Braziers that the alarms had not been installed. Braziers contacted SATS and asked them to do the job as soon as possible. SATS said that they were short staffed, and they would deal with it as soon as they could.
By 29 February the alarms were still not installed, and the tenants served a breach notice on Braziers requiring them to instal the alarms. The breach notice required compliance within 14 days, but Braziers were already in breach and for the purposes of this application, the 14-day period is irrelevant. The notice was simply another notification to Braziers that the alarms had not been installed.
By 15 March the alarms had still not been installed, and the tenants filed this application. The tenants also on this date discovered that the hardwired alarm was not operational.
Braziers contacted SATS again and they confirmed that the work would be done on 19 March. By this time Braziers had lost faith in SATS and they arranged for another contractor to install the alarms which they did on 18 March.
The tenants were concerned that the alarms had not been installed and they took one of the alarms and put it on the upstairs landing. They were unaware that the alarm would not be operative until it was installed. They did not try to install the alarms themselves because they were not confident about doing it correctly.
Braziers accepted that there has been a breach of the landlord’s obligations in relation to smoke alarms and accept that there should be an award of exemplary damages. Their position is they did try to get then installed and they were let down by the contractor. Discussion and Decision
There is no dispute that there has been a breach. The premises should have had compliant smoke alarms installed from the start of the tenancy.
The first question I must consider is whether the breach was intentional. Braziers have not argued against an award of exemplary damages, but before I can consider such an award, I must be satisfied that the breach was intentional.
There is judicial support for the proposition that an intentional act means something that someone has turned their mind to and set out to commit. That may be correct, but where the alleged unlawful act is a failure to do something, that proposition is not very helpful.
Where a person is aware of their obligation to do something (in the sense that it must be done), which if not done is an unlawful act, a failure to do it or ensure that it is done, in my view, amounts to intentionally committing the unlawful act.
In other words, it is not a defence to a claim for exemplary damages for an unlawful act for the respondent to say that they instructed someone to do what was necessary, but it was not done, and they were unaware that it was not done. That does not mean that the respondent’s attempt to get the thing done is irrelevant. It means, in practice, that the respondent has an obligation to ensure that the thing is done, not merely to take some steps to get the thing done.
In this case Braziers had an obligation to ensure that the premises had compliant smoke alarms installed in the premises in accordance with the relevant regulations. They failed to do so and so I am satisfied that they have intentionally committed an unlawful act. It would have been a simple thing for them to check with the tenants that the smoke alarms had been installed but they did not do so. Over a period of more than 7 weeks Braziers had opportunities to ensure that the alarms were installed but they failed to act.
I am also satisfied that having regard to the factors mentioned in s109(3) of the Act and the circumstances of this case generally, that there should be an award of exemplary damages.
The main consideration is the importance, for the safety of tenants, of landlords complying with the smoke alarm regulations. The fact that the maximum award is $7,200 indicates the importance that parliament puts on compliance. An award acts as a punishment and an encouragement to landlords to comply with the regulations. I must also consider the effect of the breach on the tenants who have suffered stress, uncertainty and inconvenience.
Braziers have referred me to a Tribunal case in which an award of $250 was made for a failure by the landlord to comply with the regulations in respect of smoke alarms. That case does not assist me or Braziers because there is no discussion in it of how the adjudicator came to that decision. Such an award, being 3.5% of the maximum award, could be described as token or nominal. Such a slight award is not appropriate in this case.
I accept that Braziers took steps to get the alarms installed. They did not ignore the requirement. The fault lies in not taking steps to ensure that the alarms were installed. Relying on others and trusting that they will do what is required is not good enough.
I accept that Braziers were spectacularly let down by SATS and taking that into account the award should be significant but at the lower end of the scale. I find that an award of $1,200 is appropriate. Filing Fee
The tenants have been successful and so I have awarded the filing fee. Suppression
For the same reason I have granted the tenants name suppression.

Claims and awards in Tenancy Tribunal application 4837420. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
immediately being	$1,200.00		immediately being
exemplary damages and	$20.44		exemplary damages and

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
Braziers Limited must pay [The tenant/s] $1220.44 immediately being $1,200 exemplary damages and $20.44 filing fee.

Reasons

Both parties attended the hearing.
The tenants claim exemplary damages for the breach of the landlord’s obligations in respect of smoke alarms. Law
Under section 45(1)(ba) of the Residential Tenancies Act 1986 (the Act), a landlord must comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under s138A of the Act.
The Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 made under s138 require landlords to install compliant smoke alarms in every bedroom or within three meters of the door of every bedroom in the premises.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
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. Background
This tenancy began on 26 January 2024.
The premises are two storied with a bedroom on the ground floor and four bedrooms upstairs.
It seems that during the previous tenancy there was a smoke alarm within three meters of the downstairs bedroom and another within three meters of the upstairs bedrooms. There was another, hardwired, smoke alarm upstairs that was not operational.
At the ingoing inspection, the two smoke alarms were found on the kitchen bench. One was working and other wasn’t. The agent would have fitted the working alarm downstairs, but he could not reach the fitting.
He then placed a work order with the landlord’s preferred smoke alarm contractor Smoke Alarm Testing Services (SATS) to provide a smoke alarm and to install it and the one working smoke alarm.
Braziers told the tenants that smoke alarms would be installed in the premises on 26 January, the first day of the tenancy.
According to SATS’ records produced to the Tribunal, they booked the job for 26 January on the understanding that the premises would be vacant.
Their records suggest that the tenant cancelled the booking. Braziers said that SATS told them that it was due to one of the tenants being unwell.
I note that the records have entries referring to the “tech” being sick.
The tenants said that SATS first contacted them on 29 February by telephone and they agreed that the alarms would be installed on 4 March. The caller withheld their number and so there was no way that the tenants could contact SATS directly.
Because Braziers and SATS expected the premises to be unoccupied on 26 January, there was no need to provide SATS with the tenants’ contact details and they were not provided. If follows that the tenants could not have contacted SATS on 26 January to cancel the appointment.
Braziers referred to a subsequent employment issue within SATS that resulted in an employee leaving the firm and it seems the most likely explanation for the suggestion from SATS that the tenants cancelled the job on 26 January is that it was bogus.
On 5 February the tenants informed Braziers that the alarms had not been installed. Braziers contacted SATS and asked them to do the job as soon as possible. SATS said that they were short staffed, and they would deal with it as soon as they could.
By 29 February the alarms were still not installed, and the tenants served a breach notice on Braziers requiring them to instal the alarms. The breach notice required compliance within 14 days, but Braziers were already in breach and for the purposes of this application, the 14-day period is irrelevant. The notice was simply another notification to Braziers that the alarms had not been installed.
By 15 March the alarms had still not been installed, and the tenants filed this application. The tenants also on this date discovered that the hardwired alarm was not operational.
Braziers contacted SATS again and they confirmed that the work would be done on 19 March. By this time Braziers had lost faith in SATS and they arranged for another contractor to install the alarms which they did on 18 March.
The tenants were concerned that the alarms had not been installed and they took one of the alarms and put it on the upstairs landing. They were unaware that the alarm would not be operative until it was installed. They did not try to install the alarms themselves because they were not confident about doing it correctly.
Braziers accepted that there has been a breach of the landlord’s obligations in relation to smoke alarms and accept that there should be an award of exemplary damages. Their position is they did try to get then installed and they were let down by the contractor. Discussion and Decision
There is no dispute that there has been a breach. The premises should have had compliant smoke alarms installed from the start of the tenancy.
The first question I must consider is whether the breach was intentional. Braziers have not argued against an award of exemplary damages, but before I can consider such an award, I must be satisfied that the breach was intentional.
There is judicial support for the proposition that an intentional act means something that someone has turned their mind to and set out to commit. That may be correct, but where the alleged unlawful act is a failure to do something, that proposition is not very helpful.
Where a person is aware of their obligation to do something (in the sense that it must be done), which if not done is an unlawful act, a failure to do it or ensure that it is done, in my view, amounts to intentionally committing the unlawful act.
In other words, it is not a defence to a claim for exemplary damages for an unlawful act for the respondent to say that they instructed someone to do what was necessary, but it was not done, and they were unaware that it was not done. That does not mean that the respondent’s attempt to get the thing done is irrelevant. It means, in practice, that the respondent has an obligation to ensure that the thing is done, not merely to take some steps to get the thing done.
In this case Braziers had an obligation to ensure that the premises had compliant smoke alarms installed in the premises in accordance with the relevant regulations. They failed to do so and so I am satisfied that they have intentionally committed an unlawful act. It would have been a simple thing for them to check with the tenants that the smoke alarms had been installed but they did not do so. Over a period of more than 7 weeks Braziers had opportunities to ensure that the alarms were installed but they failed to act.
I am also satisfied that having regard to the factors mentioned in s109(3) of the Act and the circumstances of this case generally, that there should be an award of exemplary damages.
The main consideration is the importance, for the safety of tenants, of landlords complying with the smoke alarm regulations. The fact that the maximum award is $7,200 indicates the importance that parliament puts on compliance. An award acts as a punishment and an encouragement to landlords to comply with the regulations. I must also consider the effect of the breach on the tenants who have suffered stress, uncertainty and inconvenience.
Braziers have referred me to a Tribunal case in which an award of $250 was made for a failure by the landlord to comply with the regulations in respect of smoke alarms. That case does not assist me or Braziers because there is no discussion in it of how the adjudicator came to that decision. Such an award, being 3.5% of the maximum award, could be described as token or nominal. Such a slight award is not appropriate in this case.
I accept that Braziers took steps to get the alarms installed. They did not ignore the requirement. The fault lies in not taking steps to ensure that the alarms were installed. Relying on others and trusting that they will do what is required is not good enough.
I accept that Braziers were spectacularly let down by SATS and taking that into account the award should be significant but at the lower end of the scale. I find that an award of $1,200 is appropriate. Filing Fee
The tenants have been successful and so I have awarded the filing fee. Suppression
For the same reason I have granted the tenants name suppression.

Tenancy Tribunal case 4837420 — Exemplary damages at 100 Elizabeth Street, Riccarton, Christchurch 8041

At a glance

Tenancy Tribunal case 4837420 — Exemplary damages at 100 Elizabeth Street, Riccarton, Christchurch 8041

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions