What was Tenancy Tribunal case 4856804 about?

The tribunal order states: Otago Flats Limited must pay [The tenant/s] $4,871.83 immediately, calculated

How much money was awarded in case 4856804?

Compensation: $1,710.51 awarded to tenant; Electrician'S Account: $140.88 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4856804?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4856804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10875191-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4856804 about?

The tribunal order states: Otago Flats Limited must pay [The tenant/s] $4,871.83 immediately, calculated

How much money was awarded in case 4856804?

Compensation: $1,710.51 awarded to tenant; Electrician'S Account: $140.88 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4856804?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4856804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10875191-Tribunal_Order_Redacted.pdf.

559A George Street, Dunedin North, Dunedin 9016 Tenancy Tribunal Case 4856804 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4856804 — net $4,871.83 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,710.51	Compensation
Exemplary damages	$3,000.00	Exemplary damages
Electrician's account	$140.88	Electrician's account
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,871.83
Total payable by Landlord to Tenant	$4,871.83

Order

Otago Flats Limited must pay [The tenant/s] $4,871.83 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The tenants claim compensation of $1,710.51, reimbursement for an electrician’s account of $140.88, costs associated with the application of $204.56 and exemplary damages.
The tenancy was for a fixed term from 1/1/2023 to 31/12/2023 at $435.00 per week rent.
The premises were a new build in July 2021. Did the landlord breach their obligations and fail to comply with Healthy Homes

Standards?

The tenants suggested that the lack of adequate ventilation due to the inadequate and later broken bathroom fan led to their possessions being damaged by mould and needing to be replaced.
In support of their claim the tenants provided a timeline from 3 May when they first advised the landlord of the problem, emails, photographs, replacement costs, and quotes.
In addition, the tenants wanted re-imbursement of $140.88 for the electrician who assessed the fan for them on 15/12/2023.
The tenants also provided a copy of the electrician’s assessment which found the fan was not dispelling moist air through the side ducting to the external grill and no force extracting from the fan unit. A second assessor considered the extraction unit was not fit for purpose.
An ECO design advisor and inspector from the Dunedin City Council both inspected the premises in December 2023 and provided written reports.
The ECO design advisor thought the mechanical extraction installed was unlikely to meet the required Healthy Home Standard of at least 25 litres per second.
The inspector thought a “home made plenum box” had been installed through a fire rated ceiling which was not removing moisture sufficiently. Several failed inspections were noted and a lack of a Code Compliance Certificate.
On the other hand, the landlord accepted that the fan did not work but relied on the fact the dwelling was designed to meet all building code and Healthy Homes Standards.
However, the landlord submitted that the tenants had contributed to the mould issues by not ventilating the premises or using the heat pump.
The landlord relied on a Supplier Declaration of Conformity for the fan and a completed Healthy Homes Compliance Statement dated 1/7/2021 based on information provided by the owner.
The landlord provided no other evidence, such as a statement from the owner’s electrician or property inspection reports.
However, the landlord offered compensation of $1,031.00 being two weeks rent, re-imbursement of the electrician’s fee and the filing fee to settle the claim.
The tenants declined the offer, which was the third highest made by the landlord.
Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
Section 45(1)(bb) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
One of these is the ventilation standard which sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
Breaching either of these obligations 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.
I consider the landlord failed to provide the premises in a reasonable state of repair or comply with the ventilation standard under the Healthy Homes Standards because the bathroom extractor fan was defective.
Further I consider the time taken to replace the fan was unreasonable.
The evidence supports that although the tenants first advised the landlord about the defective fan on 3 May, it was not until 18 August that a shower dome was fitted in an attempt to alleviate the problem.
Moreover, it was not until the tenants issued a 14 day notice on 5 October that the landlord sent an electrician to assess the fan.
No report from this electrician was provided to the Tribunal despite the landlord relying on a verbal assurance from the electrician about the cause of the mould in the premises.
Emails between the parties support that as late as December the landlord still relied on the fan complying with Healthy Homes Standards, because of a report on Flat B dated 16 November 2023.
Installation of the new fan took place between 21 and 23 December, eight months after the issue was initially raised by the tenants and two months after the 14 day notice expired.
I find the landlord has committed unlawful acts.

Should compensation and or exemplary damages be awarded?

The landlord agreed to pay for the electrician’s account and an award has been made for this.
Compensation has also been awarded for the loss suffered by the tenants due to the damage to their possessions.
I consider the amount claimed for compensation reasonable in the circumstances and the evidence provided.
However, no costs are awarded for the administration fee and time taken by the tenants to bring the application.
Section 102 provides that except in certain circumstances, which do not apply here, the Tribunal has no power to award costs.
As I have found the landlord committed unlawful acts by failing to provide maintain the premises in a reasonable condition and failing to comply with the Healthy Homes ventilation standard, I must consider the issue of exemplary damages.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
I have carefully considered the evidence provided by both parties.
An award of exemplary damages is made at the Tribunal’s discretion when one party has proved, as in this case, that the other party has committed a defined unlawful act. In making an award I need to consider the four matters set out in section 109(3).
The first of these is the intent of the landlord.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do, (Parton v Fifita TT 1815/00 DC Auckland, 1/5/2001)
The District Court has generally rejected a landlord pleading confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 where the landlord claimed not to be fully aware of his obligations to supply Healthy Homes Standards documents and insurance details, the Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape the consequences for the unlawful acts involved by claiming ignorance of the law.”
I consider in the circumstances that an inference can be drawn that the landlord intentionally failed to maintain the premises or comply with the obligations related to Healthy Homes Standards.
The evidence supports that the landlord was aware of their obligations under the legislation but chose, for whatever reason, to rely on what was insufficient information, especially in relation to Healthy Homes Standards.
It is of significant interest to tenants and the Public that landlords comply with their legal obligations.
Tenants have rights under the legislation which landlords should not ignore.
In this instance the landlord effectively ignored the tenants’ complaints for over three months and when they did act only partially remedied the problem.
The landlord then attempted to place the blame for the mould on the tenants, without any compelling evidence.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest, I consider it would be just to award exemplary damages at the mid end of the scale. I have set these at $3,000.00.
As [The applicant/s] has largely succeeded with the claim I have awarded the filing fee.
Suppression is granted to the tenant under section 95A because they succeeded with their claim.
No suppression is available to the landlord. Other issues
Although not relevant to my determination I note that the landlord failed to include in the tenancy agreement any information about insulation, insurance, or a Healthy Homes Compliance Certificate.
I noted with concern and discussed with the landlord, the lack of a Code Compliance Certificate for the premises which continue to be rented out.
The Tribunal and District Court have both confirmed that the lack of a Code Compliance Certificate may be a technical breach and bring premises under the provisions of section 78A relating to unlawful residential premises. This is an issue the owner and landlord need to address.

Claims and awards in Tenancy Tribunal application 4856804 — net $4,871.83 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,710.51	Compensation
Exemplary damages	$3,000.00	Exemplary damages
Electrician's account	$140.88	Electrician's account
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,871.83
Total payable by Landlord to Tenant	$4,871.83

Order

Otago Flats Limited must pay [The tenant/s] $4,871.83 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The tenants claim compensation of $1,710.51, reimbursement for an electrician’s account of $140.88, costs associated with the application of $204.56 and exemplary damages.
The tenancy was for a fixed term from 1/1/2023 to 31/12/2023 at $435.00 per week rent.
The premises were a new build in July 2021. Did the landlord breach their obligations and fail to comply with Healthy Homes

Standards?

The tenants suggested that the lack of adequate ventilation due to the inadequate and later broken bathroom fan led to their possessions being damaged by mould and needing to be replaced.
In support of their claim the tenants provided a timeline from 3 May when they first advised the landlord of the problem, emails, photographs, replacement costs, and quotes.
In addition, the tenants wanted re-imbursement of $140.88 for the electrician who assessed the fan for them on 15/12/2023.
The tenants also provided a copy of the electrician’s assessment which found the fan was not dispelling moist air through the side ducting to the external grill and no force extracting from the fan unit. A second assessor considered the extraction unit was not fit for purpose.
An ECO design advisor and inspector from the Dunedin City Council both inspected the premises in December 2023 and provided written reports.
The ECO design advisor thought the mechanical extraction installed was unlikely to meet the required Healthy Home Standard of at least 25 litres per second.
The inspector thought a “home made plenum box” had been installed through a fire rated ceiling which was not removing moisture sufficiently. Several failed inspections were noted and a lack of a Code Compliance Certificate.
On the other hand, the landlord accepted that the fan did not work but relied on the fact the dwelling was designed to meet all building code and Healthy Homes Standards.
However, the landlord submitted that the tenants had contributed to the mould issues by not ventilating the premises or using the heat pump.
The landlord relied on a Supplier Declaration of Conformity for the fan and a completed Healthy Homes Compliance Statement dated 1/7/2021 based on information provided by the owner.
The landlord provided no other evidence, such as a statement from the owner’s electrician or property inspection reports.
However, the landlord offered compensation of $1,031.00 being two weeks rent, re-imbursement of the electrician’s fee and the filing fee to settle the claim.
The tenants declined the offer, which was the third highest made by the landlord.
Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
Section 45(1)(bb) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
One of these is the ventilation standard which sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
Breaching either of these obligations 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.
I consider the landlord failed to provide the premises in a reasonable state of repair or comply with the ventilation standard under the Healthy Homes Standards because the bathroom extractor fan was defective.
Further I consider the time taken to replace the fan was unreasonable.
The evidence supports that although the tenants first advised the landlord about the defective fan on 3 May, it was not until 18 August that a shower dome was fitted in an attempt to alleviate the problem.
Moreover, it was not until the tenants issued a 14 day notice on 5 October that the landlord sent an electrician to assess the fan.
No report from this electrician was provided to the Tribunal despite the landlord relying on a verbal assurance from the electrician about the cause of the mould in the premises.
Emails between the parties support that as late as December the landlord still relied on the fan complying with Healthy Homes Standards, because of a report on Flat B dated 16 November 2023.
Installation of the new fan took place between 21 and 23 December, eight months after the issue was initially raised by the tenants and two months after the 14 day notice expired.
I find the landlord has committed unlawful acts.

Should compensation and or exemplary damages be awarded?

The landlord agreed to pay for the electrician’s account and an award has been made for this.
Compensation has also been awarded for the loss suffered by the tenants due to the damage to their possessions.
I consider the amount claimed for compensation reasonable in the circumstances and the evidence provided.
However, no costs are awarded for the administration fee and time taken by the tenants to bring the application.
Section 102 provides that except in certain circumstances, which do not apply here, the Tribunal has no power to award costs.
As I have found the landlord committed unlawful acts by failing to provide maintain the premises in a reasonable condition and failing to comply with the Healthy Homes ventilation standard, I must consider the issue of exemplary damages.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
I have carefully considered the evidence provided by both parties.
An award of exemplary damages is made at the Tribunal’s discretion when one party has proved, as in this case, that the other party has committed a defined unlawful act. In making an award I need to consider the four matters set out in section 109(3).
The first of these is the intent of the landlord.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do, (Parton v Fifita TT 1815/00 DC Auckland, 1/5/2001)
The District Court has generally rejected a landlord pleading confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 where the landlord claimed not to be fully aware of his obligations to supply Healthy Homes Standards documents and insurance details, the Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape the consequences for the unlawful acts involved by claiming ignorance of the law.”
I consider in the circumstances that an inference can be drawn that the landlord intentionally failed to maintain the premises or comply with the obligations related to Healthy Homes Standards.
The evidence supports that the landlord was aware of their obligations under the legislation but chose, for whatever reason, to rely on what was insufficient information, especially in relation to Healthy Homes Standards.
It is of significant interest to tenants and the Public that landlords comply with their legal obligations.
Tenants have rights under the legislation which landlords should not ignore.
In this instance the landlord effectively ignored the tenants’ complaints for over three months and when they did act only partially remedied the problem.
The landlord then attempted to place the blame for the mould on the tenants, without any compelling evidence.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest, I consider it would be just to award exemplary damages at the mid end of the scale. I have set these at $3,000.00.
As [The applicant/s] has largely succeeded with the claim I have awarded the filing fee.
Suppression is granted to the tenant under section 95A because they succeeded with their claim.
No suppression is available to the landlord. Other issues
Although not relevant to my determination I note that the landlord failed to include in the tenancy agreement any information about insulation, insurance, or a Healthy Homes Compliance Certificate.
I noted with concern and discussed with the landlord, the lack of a Code Compliance Certificate for the premises which continue to be rented out.
The Tribunal and District Court have both confirmed that the lack of a Code Compliance Certificate may be a technical breach and bring premises under the provisions of section 78A relating to unlawful residential premises. This is an issue the owner and landlord need to address.

Tenancy Tribunal case 4856804 — Exemplary damages at 559A George Street, Dunedin North, Dunedin 9016

At a glance

Tenancy Tribunal case 4856804 — Exemplary damages at 559A George Street, Dunedin North, Dunedin 9016

At a glance

Award balance

Claims & awards

Order

Reasons

Standards?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Standards?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions