What was Tenancy Tribunal case 4869720 about?

The tribunal order states: John Kyu Lee must pay [The tenant/s] $2,752.81 immediately, calculated as

How much money was awarded in case 4869720?

Property Damage: $2,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $165.90 awarded to landlord; Rent Arrears: $1,854.29 awarded to landlord; Kitchen Cabinetry: $900.00 awarded to landlord; Mower: $327.00 awarded to landlord

What type of tenancy dispute was case 4869720?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4869720?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10477368-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4869720 about?

The tribunal order states: John Kyu Lee must pay [The tenant/s] $2,752.81 immediately, calculated as

How much money was awarded in case 4869720?

Property Damage: $2,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $165.90 awarded to landlord; Rent Arrears: $1,854.29 awarded to landlord; Kitchen Cabinetry: $900.00 awarded to landlord; Mower: $327.00 awarded to landlord

What type of tenancy dispute was case 4869720?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4869720?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10477368-Tribunal_Order_Redacted.pdf.

744 Coatesville-Riverhead Highway, Riverhead, Riverhead Tenancy Tribunal Case 4869720 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4869720 — net $2,752.81 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,854.29		Rent arrears
Repairs: Kitchen cabinetry	$900.00		Repairs: Kitchen cabinetry
Repairs: mower	$327.00		Repairs: mower
Lock/key replacement	$165.90		Lock/key replacement
Exemplary damages: failing to maintain		$2,000.00	failing to maintain
Exemplary damages: Ventilation standards		$2,000.00	Ventilation standards
Exemplary damages: Draught stopping		$2,000.00	Draught stopping
Total award	$3,247.19	$6,000.00
Net award		$2,752.81
Total payable by Landlord to Tenant		$2,752.81

Claims and awards in Tenancy Tribunal application 4869720 — net $2,752.81 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,854.29		Rent arrears
Repairs: Kitchen cabinetry	$900.00		Repairs: Kitchen cabinetry
Repairs: mower	$327.00		Repairs: mower
Lock/key replacement	$165.90		Lock/key replacement
Exemplary damages: failing to maintain		$2,000.00	failing to maintain
Exemplary damages: Ventilation standards		$2,000.00	Ventilation standards
Exemplary damages: Draught stopping		$2,000.00	Draught stopping
Total award	$3,247.19	$6,000.00
Net award		$2,752.81
Total payable by Landlord to Tenant		$2,752.81

Order

John Kyu Lee must pay [The tenant/s] $2,752.81 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $4,400.00 ([Bond number suppressed]) to [The tenant/s] immediately.
The remaining applications are dismissed.

Reasons

Both parties attended the hearing. Both were assisted by interpreters.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant has applied for compensation/exemplary damages for failures to maintain the premises and failure to comply with the Healthy Homes Standards (HHS)
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.

How much is owed for rent?

The tenancy ended on 13 April 2024. This was the early termination of the fixed term, so there was an agreement that the tenants would pay rent (at a reduced amount) to cover the landlord’s loss of rent.
The landlord was renting another property for $590 per week. When the tenants left the premises, the landlord moved back in, and it was agreed that the tenants would pay the lower rent until that tenancy ended.
The landlord provided rent records which prove the amount owing.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The landlord alleges that tenant did not leave the premises reasonably clean and tidy. He refers to mildew on the ceiling and a failure to mow the lawns.
The tenants submit that the ceiling had mildew from the commencement of the tenancy and submit that they left the lawns reasonably tidy.
There are no pre-tenancy photographs of the interior of the premises. I have seen photographs of the lawn at the end of the tenancy.
I consider that the tenants left the lawn reasonably tidy. That portion of the claim is not proved.
For completeness, I note that the lawn mowing the landlord seeks reimbursement for was not done until the middle of May 2024, a full month after the tenancy ended. Taking into account the need for regular mowing, I consider that this factor also weighs against the tenants being liable for that cost.
In relation to the mildew, given the lack of pre-tenancy photographs, I cannot discount the tenant’s explanation and that portion of the claim is also dismissed.
The landlord seeks reimbursement of the cost of 10 lightbulbs. There is no clear evidence of the which lightbulbs were missing/not working. There is no evidence to support the quantum of the claim. The landlord seeks to rely on a bank statement showing a payment to Bunnings. However, given Bunnings provides a wide range of goods, I consider this is insufficient to prove this claim and it is dismissed.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent.
Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The following damage was caused during the tenancy: a. Repairs to the lawn mower. b. Damage to kitchen cabinetry. c. Repairs to the blinds. d. Repairs to the door lock and replacement of one key. e. Damage to a kitchen window.
In relation to the kitchen cabinetry, the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The amounts ordered are proved.
I note that the tenants indicated that there was damage to the cabinets at the start of the tenancy, there is no indication of this or the extent of it. The damage at the end of the tenancy is significant. It is clearly water damage. While the tenants did not accept that there was a significant flooding event or similar during the tenancy, I am satisfied that it is more likely than not the damage occurred during the tenancy.
In relation to the locks, the tenants say the lock was always stiff to use. However, the locksmith indicates that there was a piece of pencil stuck in the workings of the lock which is why it didn’t operate. This is more than wear and tear, and I consider the tenants have not disproved liability for it.
The tenants accept that one key was not returned and that they should pay the cost of replacing it.
In relation to the lawn mower, portions of the repair invoice relate to maintenance of worn parts. I consider this is wear and tear. However, the portion that relates to the spindles and belt replacement was caused – according to the repairer – by rope being caught in the blades.
The landlord’s evidence is that the lawnmower did not work when he tried it following the tenancy. The tenant accepts that a part of the mower fell off while he was using it, so he stopped using it. This was shortly prior to the end of the tenancy.
I am satisfied that the damage to the spindles and belt occurred during the tenancy. I am also satisfied that the tenants have not disproved liability for that damage. The amounts awarded are proved.
The landlord was dis-satisfied, in the hearing, with my indication that I would not award the costs of labour. The invoice does not break down the labour into tasks, and there is no evidence on which I could apportion it myself. I consider that quantum is matter that the landlord must prove, and in the absence of evidence on how to fairly apportion the labour components I decline to do so.
I have awarded the pickup/drop off portion of the lawn mower invoice as I consider that would have been incurred for the repairs attributable to the tenant, irrespective of the other maintenance done at the same time.
In relation to the repair of the blinds, the tenants say that the blind cord (which is what was broken) was knotted and unusable at the start of the tenancy. they say that they did not use the blinds throughout the tenancy and deny the damage.
The landlord has no pre-tenancy photos to show the condition of the blinds. The landlord says that when he was at the premises for inspections the blinds were always shut. The landlord took a number of photographs of the premises during inspections; however, these do not show the blinds shut.
Taking into account the landlord’s onus to prove his case, I consider that he has failed to do so, and this portion of the claim is dismissed.
In relation to the kitchen window, this appears to have been hit with a projectile. The damage was not discovered until 2 weeks after the tenancy ended. There is no evidence of when it was caused as, again, there are no pre-tenancy photographs. The landlord’s evidence is he “assumed” the tenants did it. He also suggested that the tenants’ children may have shot it with a slug gun. There is no evidence to suggest this and given the tenants’ children are 5 years and 2 years old I consider this an entirely unlikely explanation.
The landlord has not proved that damage occurred during the tenancy, has not proved the damage was done by the tenants, and has not proved the quantum of the claim (there is an estimate on file, only). The claim is dismissed. Exemplary damages generally
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
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.
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. Failure to maintain.
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair and provide an adequate means for the collection and storage of water if there is no reticulated supply.
Breaching any 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.
The tenant alleges that the landlord: a. Did not provide the garage in a reasonably clean and tidy condition so they could not use it. b. Did not repair the water tank promptly.
The landlord accepts that he stored a variety of furniture and personal items in the garage. He contends that the garage is not included in the tenancy, and it is too small to park a car.
There is no mention in the tenancy agreement that the garage was excluded. There is no evidence of correspondence between the parties to that effect.
The tenant accepts that the landlord asked if he could store a dining table there until it was sold. This was prior to the commencement of the tenancy and was short term. The table is no longer in the garage.
I find that, in the absence of clear evidence to the contrary, the tenancy was for the entire property, including the garage. The landlord did not leave the garage clear of his possessions. This is a breach of the requirement that the premises be leave reasonably clean and tidy.
The tenants had to order water to fill the tanks in July 2023. During the filling the water supplier told them there was a leak in the tank. The tenants advised that landlord who visited to look at the damage. The landlord provided me with photographs dated 23 July 2023 showing the cracks and leak.
The damage was not repaired until early September.
The landlord says that was because he was waiting on his insurer. He further says that the tenants should have had plenty of water from the roof as it was the rainy seasons. He blames the tenants not clearing the gutters for this deficiency. That said, I asked the landlord when he cleaned the gutters prior to the tenancy (given that gutter clearing is both a maintenance issue and a HHS requirement), he said it was just prior to the tenancy commencing in June 2023. If that submission is true, then the gutters should have been operational one month later, in July.
The landlord further says that there was no hurry to repair as there was a second tank the tenants could use. He says he explained this to the tenants at the start of the tenancy. However, he did not lock the second tank and switch the pump to the second tank while at the premises or advise the tenants to do so.
The tenants deny that they were told they switch the pump to the second tank, or that they were shown how to do so. Further, the tenants said that the levels in both were even. This indicates that the second tank wasn’t locked, so it was emptying along with the first.
The tenants also sought help from their neighbour (who previously owned this premises). He looked at the tanks and was unable to prevent the leak.
I consider the delay in repairing the tanks was too long. The tenants were not updated on the situation until 24 August 2023, then repairs were done in early September. If what the landlord said about locking the second tank and switching the pump over was a solution, then that was a repair he should have carried out while at the premises in July. Or at the very least, he should have told the tenants to do it.
I find the landlord has committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure to act was that the did not have full use of the premises they contracted for. They were also required to purchase additional water to fill the tanks, this was a financial loss and an inconvenience.
I consider the landlord must have acted intentionally in failing to provide the premises reasonable clean and in failing to repair the water tanks. In relation to the first, he said he was aware of the obligation in section 45, but his rented property was too small for those items, so he left them. In relation to the second, the landlord does not appear to appreciate the extent if his delay and blames the tenants for the ongoing issue as they didn’t lock the second tank and switch the pump.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, particularly in relation to water supply. This landlord simply ignored his obligations and that cannot, in my view be condoned.
I consider that an award of exemplary damages is appropriate in this case, and I award $2,000.00. Healthy Homes Standards
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
This property was required to comply within 120 days of commencement of the tenancy. Ventilation
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS ventilation standard.
The ventilation standard 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.
The HHS does provide exemptions in specific circumstances.
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).
It is accepted that the kitchen does not have an extract fan. The landlord says that it doesn’t need one because it has high ceilings and 2 windows in the kitchen.
I find John Kyu Lee committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure to act was that the tenant has been subject to living in a damp house with mildew for the entire tenancy. The tenants remain concerned about the effect of this on their and their children’s health.
I consider the landlord must have acted intentionally in failing to comply given his reasons for not complying. The duration of the landlord’s failure to act is significant. The landlord has shown a blatant disregard for the law.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties in a warm, dry and safe condition. I further consider that the Tribunal cannot be seen to condone wilful refusal to consider and comply with the law.
I consider that an award of exemplary damages is appropriate in this case, and I award $2,000.00. Draught Stopping
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS draught stopping standard.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
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).
In this case I have determined the landlord has not complied with the draught stopping standards. There is clearly an unreasonable gap in the master bedroom window, despite the landlords’ efforts to minimise it. This gap is clearly long standing given the evidence of a prior tenant that they had to use tape to stop the draughts.
I find John Kyu Lee committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure to act was that the tenant has not had the use of that bedroom due to how cold it was, particularly during winter.
I consider the landlord must have acted intentionally in failing to repair this gap and ensure the premises complies with the HHS. He simply refuses to accept the requirements of the HHS and suggests that the window be propped shut to prevent draughts. The duration of the landlord’s failure to act is significant.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties in a warm, dry and safe condition. Again, I consider that the Tribunal cannot be seen to condone wilful refusal to consider and comply with the law.
I consider that an award of exemplary damages is appropriate in this case, and I award $2,000.00. Suppression
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
The tenant sought suppression of their names. As they have been substantially successful in their claim they are entitled to suppression.
The landlord did not seek suppression.

Tenancy Tribunal case 4869720 — Exemplary damages at 744 Coatesville-Riverhead Highway, Riverhead, Riverhead

At a glance

Tenancy Tribunal case 4869720 — Exemplary damages at 744 Coatesville-Riverhead Highway, Riverhead, Riverhead

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions