What was the outcome of Tenancy Tribunal case 4846380?

The tribunal order states: Craig Fleming must pay Tyler Jason James Guttenbeil and Chibinda Mwaijumba

How much money was awarded in case 4846380?

Compensation: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

Where can I read the official tribunal order for case 4846380?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10728177-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4846380?

The tribunal order states: Craig Fleming must pay Tyler Jason James Guttenbeil and Chibinda Mwaijumba

How much money was awarded in case 4846380?

Compensation: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

Where can I read the official tribunal order for case 4846380?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10728177-Tenancy_Tribunal_Order.pdf.

54 Peary Road, Mount Eden, Auckland 1024 Tenancy Tribunal Case 4846380 — Leaks

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54 Peary Road, Mount Eden, Auckland 1024 Tenancy Tribunal Case 4846380 — Leaks | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4846380 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for lounge water leak	$500.00	Compensation for lounge water leak
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

Claims and awards for application 4846380 — net $520.44 NZD. Verify on MoJ.

Compensation for lounge water leak

Amount: $500.00
Awarded to: Tenant
Reason: Compensation for lounge water leak

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $520.44

Total payable by Landlord to Tenant

Tenant $520.44

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Compensation Filing Fee

Order

Craig Fleming must pay Tyler Jason James Guttenbeil and Chibinda Mwaijumba $520.44 immediately, calculated as shown in table below. DescriptionTenant Compensation for lounge water leak$500.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$520.44
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant in relation to four claims as I will set out below.
Both parties appeared at the hearing today held in the Auckland District Courthouse.

BACKGROUND

The tenancy commenced on 10 December 2022. The sole tenant recorded on the tenancy agreement was Chibinda Mwaijumba. The landlord is Craig Fleming. In or around December 2023 Mr Mwaijumba moved out, and Mr Guttenbeil continued living in the premises. However the email communications on file indicate that Mr Fleming had considered Mr Guttenbeil to be a co-tenant with Mr Mwaijumba.
On 20 June 2023 a leak was identified in the lounge ceiling. The evidence is that the landlord addressed the leak promptly with a plumber attending the following day. However there was a 9 week odd period over which the ceiling was exposed to dry the cavity, and for the ceiling to be relined, plastered and painted.
On 21 November 2023 there was a second leak, but this time involving the downstairs bedroom. Again the landlord addressed this leak, and it is the case that the parties agreed on a 25% rent reduction to compensate the tenants for their loss and inconvenience. There is however a further claim now before the Tribunal relating to damage to the floor from the effect of the leak, where the tenant is seeking compensation. The floor was fixed on or around 27 February 2024.
On 29 December 2023 the landlord entered the premises with a builder in relation to the floor issues. The tenant has taken issue with this entry and it is a claim before me concerning unlawful entry.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

TENANTS CLAIMS

Compensation for water leak in lounge
The tenant states that there was a water leak in the lounge. The tenant says that the landlord got onto that leak fast, but there was prolonged repairs with exposed pipes etc. The tenant estimates that this took around 9 weeks to repair. The tenant is claiming $100.00 per week for compensation, a total of $900.00.
The landlord states that the water leak was fixed the next day. However the advice was to wait for about two weeks for the cavity to dry, but then there were delays in getting the trades to gib, plaster and paint the ceiling. The landlord accepts that it would have been around the 9 week mark to get this fixed overall. The landlord considers that the inconvenience to the tenants would have been minor. The landlord disputes that compensation should be provided.
In conclusion the tenant consider that they did not get full use of the property. Analysis
With any compensation claim, to receive an order the party must incur a loss. In short, the compensation is intended as best money can do, to compensate for the actual loss incurred.
With claims such as this, the loss for the tenant is one of amenity. The tenant was paying rent to receive a dwelling which had contiguous ceilings, and further to have quiet enjoyment of the premises so as not to be inconvenienced with tradespeople coming in for the repairs etc. I accept that the work would also have caused dust that the tenant would need to address.
I consider it would be fair to order compensation for the loss of amenity incurred by the tenant. But the difficulty is always in working out what that level of compensation should be. Taking into account factors such as the extent to which the premises would be impacted (minor), and the additional work that the tenant would have needed to do (also minor), but putting into the mix inconvenience with trades coming to the house (moderate) and the length of time over which the repair took (also moderate) I have determined that a fair level of compensation for this would be $500.00, and that is ordered.
Compensation for bedroom leak with floor
The tenant states that there was a leak in the bedroom. There was an agreement with the landlord around compensation at the time, but the leak caused a hole in the floor. The tenant states that the leak caused the floor to dip and he was worried that they would fall through it. When the floor was fixed it did cause a hole.
The landlord states that this was only raised with the landlord on 16 January in relation to what the carpet layer said. The landlord provided a piece of plywood to cover the floor. Ultimately a builder undertook a repair. Following agreement with the tenant, a 25% discount in rent was provided between 27 November to 15 January to the sum of $2,137.00. Analysis
There is no dispute between the parties that there was a water leak in the bedroom. The parties agreed on compensation for that, and the tenant considered that compensation was fair. But what this claim relates to is the effect of the leak on the floor, the tenant considers that further compensation should be provided because he considers it to be a different matter.
As indicated with the lounge water leak, compensation should be provided to put right a loss relating from water leaks. In this case the landlord has provided what I consider a generous level of compensation to the tenant, and what was agreed would be higher than the Tribunal would have ordered in the circumstances. While I accept that there were effects on the floor from the water leak, I consider that the compensation the landlord has already provided was sufficient to cover the full effect of the water leak – including to the floor. To put that another way, the tenant has not proven to me that his loss in total for the water leak in the bedroom was beyond $2,137.00.
This claim is dismissed.
Unlawful entry
The tenant states that he received an email around 10:00 pm about the landlord and builder coming into the premises to look at the water leak, and then came to the premises at about 9:00 am following morning. The tenant said he was asleep, and it was to assess the floor in the bedroom which the tenant said was not a safety issue so not urgent. Mr Fleming and the builder let themselves in to look at the floor.
In response, the landlord said he emailed at 10:30pm, and let the builder in around 10:00am. The landlord said it was an issue of some urgency, and thought that he had an agreement from the tenant to come into the premises. The builder was there for only a short time to measure the floor.
The tenant concluded by saying that they need to know when people are coming in to ensure their belongings are secure. Analysis
The tenant claims exemplary damages on the basis of unlawful entry to the premises, with respect to an attendance at the premises of the landlord and builder on 29 December 2023.
The evidence is that the landlord emailed the tenant on the evening on 28 December 2023 in relation to attending the following day with a builder to assess the floor. Then on 29 December 2023 around 10:00am the landlord and builder attended, with the landlord entering the building to show the floor to the builder. The tenant was in bed at that time as he is a shift worker. I accept that the tenant had not received the email, so was naturally surprised to find the landlord and builder in the house.
Section 48 of the RTA set out the landlord’s right of entry. That confirms that the landlord can enter the premises: a. Any time with the consent of the tenant, or in an emergency; or b. After giving the required notice.
The entry was not with the consent of the tenant, and neither was it an emergency.
Section 48(2)(d) is the relevant notice provision, and that confirms that the landlord can enter the premises: for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry; or
In this case the landlord had given notice, but it was about 12 hours short of the necessary 24 hours’ notice, but it was a breach of the required notice provision nevertheless. This is deemed to be an unlawful act, which means the Tribunal could order exemplary damages to be paid for that breach.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty 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 section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: 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.
In this case while I accept that there has been a breach, I decline to exercise my discretion to order exemplary damage for these reasons.
Firstly, I am not persuaded there is sufficient evidence to show that the breach was intentional or to put that another way, the landlord intended to breach this legal requirement for notice.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal 1 that: 1 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92 Before an award for 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.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
A second District Court decision of relevance is Peter Stoekeken v Nykala Toheriri and Vince Aso [2022] NZDC 9698, a decision from Judge Tuohy. The dispute in that case was included a claim for exemplary damages because the landlord had rented the premises with an exposed electrical wire. Judge Tuohy accepted that the landlord did not know the wire was exposed, but importantly confirmed that: ...S 109(3) of the Act requires the Tribunal to be satisfied that the unlawful act was committed intentionally by the person who committed it before exemplary damages can be awarded.... ...assuming that the landlord is liable for the omissions of his agents as well as his own, I am not satisfied that he or his agents intentionally decided not to carry out an inspection which was sufficiently through to reveal the wire. Even if they ought to have noticed it, that is not equivalent to an intentional act. As the Adjudicator in the second decision stated when declining to award exemplary damages to the landlord, the unlawful act must have been committed intentionally in the sense of deliberately and in full knowledge that they were not meeting their obligations. The evidence does not establish that. In summary, I consider that there are insufficient grounds to award exemplary damages against the landlord in relation to the exposed wire.
Because I cannot find sufficient evidence of an intentional breach, I cannot order exemplary damages.
However, even if I were wrong in that assessment, I would have declined to order exemplary damages because I would not find it just to make the order. The landlord did give notice, it was just insufficient in time. Further the issue with the floor does seem of some moment to the tenant, and in fact of such moment that the tenant is suing the landlord in the Tribunal today for risks associated with the floor. In this case the landlord’s entry was to assess and address the floor which of course required entry for a legitimate purpose.
I find while there was a technical breach, it would not be just to order that exemplary damages be paid to the tenant.
Power use
The tenant seeks compensation for needing to use additional damand on the heat pump. The tenant said that over winter they were using the heat pump non-stop to warm the house, because landlord had not provided a compliant set of heating devices, so they needed to use the heat pump more than they should have. Further the tenant says that there was a draught with the garage door.
The landlord agrees that there was a need for a panel heater, which was installed when that was identified as being needed. The landlord said that he also got an HHS report and that did not identify any draught with the garage door.
The tenant concluded by stating that the landlord put up the rent so decided to leave at that time. Analysis
The tenant seeks compensation for what he describes as additional power use in heating the premises because the heat pump was of insufficient size.
Based on the two HHS assessments on file, the heat pump that was required for the premises would be 8.2 kW, but the heat pump installed was just shy of that at 8.0 kW. Because the difference is relatively small, the landlord was able to install an electrical heater, and that is what he did, he installed a panel heater.
The problem for the tenant with this claim is that in order to claim it for additional power use to heat the premises, the tenant will need to establish that he has incurred a loss arising from the landlord’s breach, and he has not done so.
Firstly there is no evidence provided from an electrical expert which establishes that the tenant would have used more electricity using an 8.0 kW heater to heat the room, when an 8.2 kw heater was indicated.
Secondly the tenant has not proven that his electricity bill would be less if the landlord had earlier installed the panel heater. On the face of it, it is difficult to see why the tenant would have used less power if there had been a panel heater installed also, because of course the panel heater would also have required electricity to operate.
The tenant also raised concerns in relation to a draught in the garage. While I except that there may have been a draught around the garage door, there is no evidence before me that would support a view that the draught would have impacted the inside of the dwelling to have pushed up the heating costs.
Ultimately the onus sits with the tenant to establish his claim, and I find he has not done so.

COSTS

The applicant has been partly successful in their claim before the Tribunal. I find it is reasonable therefore to award the filing fee paid to commence the proceeding in the Tribunal, which is $20.44.
I decline to order the landlord to pay the HHS report the tenant obtained. There is no statutory requirement to obtain external HHS reports. Further the sort of costs that can be ordered by the Tribunal are limited in section 102 of the RTA, and those costs would not include obtaining an HHS report used in the Tribunal proceeding.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has been partly successful only, but I would not conclude the tenant has been substantially successful, therefore name suppression is declined.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4846380 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for lounge water leak	$500.00	Compensation for lounge water leak
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

Claims and awards for application 4846380 — net $520.44 NZD. Verify on MoJ.

Compensation for lounge water leak

Amount: $500.00
Awarded to: Tenant
Reason: Compensation for lounge water leak

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $520.44

Total payable by Landlord to Tenant

Tenant $520.44

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Compensation Filing Fee

Order

Craig Fleming must pay Tyler Jason James Guttenbeil and Chibinda Mwaijumba $520.44 immediately, calculated as shown in table below. DescriptionTenant Compensation for lounge water leak$500.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$520.44
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant in relation to four claims as I will set out below.
Both parties appeared at the hearing today held in the Auckland District Courthouse.

BACKGROUND

The tenancy commenced on 10 December 2022. The sole tenant recorded on the tenancy agreement was Chibinda Mwaijumba. The landlord is Craig Fleming. In or around December 2023 Mr Mwaijumba moved out, and Mr Guttenbeil continued living in the premises. However the email communications on file indicate that Mr Fleming had considered Mr Guttenbeil to be a co-tenant with Mr Mwaijumba.
On 20 June 2023 a leak was identified in the lounge ceiling. The evidence is that the landlord addressed the leak promptly with a plumber attending the following day. However there was a 9 week odd period over which the ceiling was exposed to dry the cavity, and for the ceiling to be relined, plastered and painted.
On 21 November 2023 there was a second leak, but this time involving the downstairs bedroom. Again the landlord addressed this leak, and it is the case that the parties agreed on a 25% rent reduction to compensate the tenants for their loss and inconvenience. There is however a further claim now before the Tribunal relating to damage to the floor from the effect of the leak, where the tenant is seeking compensation. The floor was fixed on or around 27 February 2024.
On 29 December 2023 the landlord entered the premises with a builder in relation to the floor issues. The tenant has taken issue with this entry and it is a claim before me concerning unlawful entry.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

TENANTS CLAIMS

Compensation for water leak in lounge
The tenant states that there was a water leak in the lounge. The tenant says that the landlord got onto that leak fast, but there was prolonged repairs with exposed pipes etc. The tenant estimates that this took around 9 weeks to repair. The tenant is claiming $100.00 per week for compensation, a total of $900.00.
The landlord states that the water leak was fixed the next day. However the advice was to wait for about two weeks for the cavity to dry, but then there were delays in getting the trades to gib, plaster and paint the ceiling. The landlord accepts that it would have been around the 9 week mark to get this fixed overall. The landlord considers that the inconvenience to the tenants would have been minor. The landlord disputes that compensation should be provided.
In conclusion the tenant consider that they did not get full use of the property. Analysis
With any compensation claim, to receive an order the party must incur a loss. In short, the compensation is intended as best money can do, to compensate for the actual loss incurred.
With claims such as this, the loss for the tenant is one of amenity. The tenant was paying rent to receive a dwelling which had contiguous ceilings, and further to have quiet enjoyment of the premises so as not to be inconvenienced with tradespeople coming in for the repairs etc. I accept that the work would also have caused dust that the tenant would need to address.
I consider it would be fair to order compensation for the loss of amenity incurred by the tenant. But the difficulty is always in working out what that level of compensation should be. Taking into account factors such as the extent to which the premises would be impacted (minor), and the additional work that the tenant would have needed to do (also minor), but putting into the mix inconvenience with trades coming to the house (moderate) and the length of time over which the repair took (also moderate) I have determined that a fair level of compensation for this would be $500.00, and that is ordered.
Compensation for bedroom leak with floor
The tenant states that there was a leak in the bedroom. There was an agreement with the landlord around compensation at the time, but the leak caused a hole in the floor. The tenant states that the leak caused the floor to dip and he was worried that they would fall through it. When the floor was fixed it did cause a hole.
The landlord states that this was only raised with the landlord on 16 January in relation to what the carpet layer said. The landlord provided a piece of plywood to cover the floor. Ultimately a builder undertook a repair. Following agreement with the tenant, a 25% discount in rent was provided between 27 November to 15 January to the sum of $2,137.00. Analysis
There is no dispute between the parties that there was a water leak in the bedroom. The parties agreed on compensation for that, and the tenant considered that compensation was fair. But what this claim relates to is the effect of the leak on the floor, the tenant considers that further compensation should be provided because he considers it to be a different matter.
As indicated with the lounge water leak, compensation should be provided to put right a loss relating from water leaks. In this case the landlord has provided what I consider a generous level of compensation to the tenant, and what was agreed would be higher than the Tribunal would have ordered in the circumstances. While I accept that there were effects on the floor from the water leak, I consider that the compensation the landlord has already provided was sufficient to cover the full effect of the water leak – including to the floor. To put that another way, the tenant has not proven to me that his loss in total for the water leak in the bedroom was beyond $2,137.00.
This claim is dismissed.
Unlawful entry
The tenant states that he received an email around 10:00 pm about the landlord and builder coming into the premises to look at the water leak, and then came to the premises at about 9:00 am following morning. The tenant said he was asleep, and it was to assess the floor in the bedroom which the tenant said was not a safety issue so not urgent. Mr Fleming and the builder let themselves in to look at the floor.
In response, the landlord said he emailed at 10:30pm, and let the builder in around 10:00am. The landlord said it was an issue of some urgency, and thought that he had an agreement from the tenant to come into the premises. The builder was there for only a short time to measure the floor.
The tenant concluded by saying that they need to know when people are coming in to ensure their belongings are secure. Analysis
The tenant claims exemplary damages on the basis of unlawful entry to the premises, with respect to an attendance at the premises of the landlord and builder on 29 December 2023.
The evidence is that the landlord emailed the tenant on the evening on 28 December 2023 in relation to attending the following day with a builder to assess the floor. Then on 29 December 2023 around 10:00am the landlord and builder attended, with the landlord entering the building to show the floor to the builder. The tenant was in bed at that time as he is a shift worker. I accept that the tenant had not received the email, so was naturally surprised to find the landlord and builder in the house.
Section 48 of the RTA set out the landlord’s right of entry. That confirms that the landlord can enter the premises: a. Any time with the consent of the tenant, or in an emergency; or b. After giving the required notice.
The entry was not with the consent of the tenant, and neither was it an emergency.
Section 48(2)(d) is the relevant notice provision, and that confirms that the landlord can enter the premises: for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry; or
In this case the landlord had given notice, but it was about 12 hours short of the necessary 24 hours’ notice, but it was a breach of the required notice provision nevertheless. This is deemed to be an unlawful act, which means the Tribunal could order exemplary damages to be paid for that breach.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty 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 section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: 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.
In this case while I accept that there has been a breach, I decline to exercise my discretion to order exemplary damage for these reasons.
Firstly, I am not persuaded there is sufficient evidence to show that the breach was intentional or to put that another way, the landlord intended to breach this legal requirement for notice.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal 1 that: 1 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92 Before an award for 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.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
A second District Court decision of relevance is Peter Stoekeken v Nykala Toheriri and Vince Aso [2022] NZDC 9698, a decision from Judge Tuohy. The dispute in that case was included a claim for exemplary damages because the landlord had rented the premises with an exposed electrical wire. Judge Tuohy accepted that the landlord did not know the wire was exposed, but importantly confirmed that: ...S 109(3) of the Act requires the Tribunal to be satisfied that the unlawful act was committed intentionally by the person who committed it before exemplary damages can be awarded.... ...assuming that the landlord is liable for the omissions of his agents as well as his own, I am not satisfied that he or his agents intentionally decided not to carry out an inspection which was sufficiently through to reveal the wire. Even if they ought to have noticed it, that is not equivalent to an intentional act. As the Adjudicator in the second decision stated when declining to award exemplary damages to the landlord, the unlawful act must have been committed intentionally in the sense of deliberately and in full knowledge that they were not meeting their obligations. The evidence does not establish that. In summary, I consider that there are insufficient grounds to award exemplary damages against the landlord in relation to the exposed wire.
Because I cannot find sufficient evidence of an intentional breach, I cannot order exemplary damages.
However, even if I were wrong in that assessment, I would have declined to order exemplary damages because I would not find it just to make the order. The landlord did give notice, it was just insufficient in time. Further the issue with the floor does seem of some moment to the tenant, and in fact of such moment that the tenant is suing the landlord in the Tribunal today for risks associated with the floor. In this case the landlord’s entry was to assess and address the floor which of course required entry for a legitimate purpose.
I find while there was a technical breach, it would not be just to order that exemplary damages be paid to the tenant.
Power use
The tenant seeks compensation for needing to use additional damand on the heat pump. The tenant said that over winter they were using the heat pump non-stop to warm the house, because landlord had not provided a compliant set of heating devices, so they needed to use the heat pump more than they should have. Further the tenant says that there was a draught with the garage door.
The landlord agrees that there was a need for a panel heater, which was installed when that was identified as being needed. The landlord said that he also got an HHS report and that did not identify any draught with the garage door.
The tenant concluded by stating that the landlord put up the rent so decided to leave at that time. Analysis
The tenant seeks compensation for what he describes as additional power use in heating the premises because the heat pump was of insufficient size.
Based on the two HHS assessments on file, the heat pump that was required for the premises would be 8.2 kW, but the heat pump installed was just shy of that at 8.0 kW. Because the difference is relatively small, the landlord was able to install an electrical heater, and that is what he did, he installed a panel heater.
The problem for the tenant with this claim is that in order to claim it for additional power use to heat the premises, the tenant will need to establish that he has incurred a loss arising from the landlord’s breach, and he has not done so.
Firstly there is no evidence provided from an electrical expert which establishes that the tenant would have used more electricity using an 8.0 kW heater to heat the room, when an 8.2 kw heater was indicated.
Secondly the tenant has not proven that his electricity bill would be less if the landlord had earlier installed the panel heater. On the face of it, it is difficult to see why the tenant would have used less power if there had been a panel heater installed also, because of course the panel heater would also have required electricity to operate.
The tenant also raised concerns in relation to a draught in the garage. While I except that there may have been a draught around the garage door, there is no evidence before me that would support a view that the draught would have impacted the inside of the dwelling to have pushed up the heating costs.
Ultimately the onus sits with the tenant to establish his claim, and I find he has not done so.

COSTS

The applicant has been partly successful in their claim before the Tribunal. I find it is reasonable therefore to award the filing fee paid to commence the proceeding in the Tribunal, which is $20.44.
I decline to order the landlord to pay the HHS report the tenant obtained. There is no statutory requirement to obtain external HHS reports. Further the sort of costs that can be ordered by the Tribunal are limited in section 102 of the RTA, and those costs would not include obtaining an HHS report used in the Tribunal proceeding.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has been partly successful only, but I would not conclude the tenant has been substantially successful, therefore name suppression is declined.

Tenancy Tribunal case 4846380 — Leaks at 54 Peary Road, Mount Eden, Auckland 1024

At a glance

Tenancy Tribunal case 4846380 — Leaks at 54 Peary Road, Mount Eden, Auckland 1024

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

COSTS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

COSTS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions