What was Tenancy Tribunal case 4885581 about?

The tribunal order states: JDM Dairying Limited must pay [The tenant/s] $3,870.44 immediately

How much money was awarded in case 4885581?

Property Damage: $3,600.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4885581?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4885581?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10477298-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4885581 about?

The tribunal order states: JDM Dairying Limited must pay [The tenant/s] $3,870.44 immediately

How much money was awarded in case 4885581?

Property Damage: $3,600.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4885581?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4885581?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10477298-Tribunal_Order_Redacted.pdf.

77 James Road Right Branch, Bainham, Collingwood 7073 Tenancy Tribunal Case 4885581 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4885581 — net $3,870.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: s 45	$3,600.00	s 45
Exemplary damages: s 60AA	$250.00	s 60AA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,870.44
Total payable by Landlord to Tenant	$3,870.44

Claims and awards in Tenancy Tribunal application 4885581 — net $3,870.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: s 45	$3,600.00	s 45
Exemplary damages: s 60AA	$250.00	s 60AA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,870.44
Total payable by Landlord to Tenant	$3,870.44

Order

JDM Dairying Limited must pay [The tenant/s] $3,870.44 immediately 1 , calculated as shown in table below:
By mutual agreement of the parties, the tenants may end the tenancy by providing the landlord no less than two days written notice of termination, prior to the tenancy ending regardless on 18 August 2024 per the served landlord notice. 1 With the agreement of both parties, this may be paid via a rent holiday until the amount is offset, or the balance is due if the tenancy ends before.

Reasons

Both parties attended the hearing, conducted via video conference. The landlord appeared with voice only (by its request that was approved). Jason and Bethany McBeth appeared for the landlord.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
This tenancy commenced 10 September 2023. Prior to that it had been occupied by a worker from the landlord (landlord message to tenants dated 30 August 2023). It is not clear if that was a service tenancy. The premises sits on a rural block, purchased by the landlord for the farming potential of the land, rather than the house. There are three titles and consideration of selling the house was made but as it sits on a sizable block, any sale by right of title would diminish the original driver for the purchase.
The landlords stated they are inexperienced and accepted at the hearing a number of omissions or failures in meeting all of their landlord requirements. The tenancy agreement used was downloaded from a private provider, rather than the free template available from Tenancy Services. It contained a number of handwritten alterations, not all clearly initialled as accepted.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. The tenant application
The tenant sought orders regarding landlord failures pertaining to smoke alarms, Healthy Homes standards, and unlawful grounds for termination. Disruption of quiet enjoyment was raised at the hearing. Smoke alarms
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Section 45(1)(ba) of the Residential Tenancies Act 1986 requires that landlords comply with all requirements in relation to smoke alarms made under section 138A.
The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, which require landlords to have qualifying smoke alarms installed and operational.
Smoke alarms must be installed in every sleeping space, or within 3 metres of the entrance to the sleeping space, and in each level of a multi-level dwelling. Similar obligations apply to boarding rooms.
All new smoke alarms must: be photoelectric, have a battery life of at least eight years or be hard-wired, be installed according to the manufacturer’s instructions, meet international standards, be in full working order, and have their expiry date displayed.
Existing smoke alarms do not need to be replaced if they are in full working order and have not passed their expiry date.
Breaching the obligation in s 45(1)(ba) is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (see s 45(1A) and Schedule 1A RTA).
The landlord failed to ensure the premises had the required number of smoke alarms installed.
The need to address this was recorded (by hand) in the tenancy agreement – see extract 17. below:
The last part of that section was crossed out but “to do” added. Later, further confirmation is evident of the landlord needing to attend to the smoke alarms (below).
I consider the landlord turned its mind to smoke alarms at the commencement but took no further steps to inspect and resolve any issues.
At the date of the hearing there were still no smoke alarms installed. The landlord had no good reason for this.
I find the landlord has committed an unlawful act. Insulation
[The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
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 (1)(A) and Schedule 1A RTA.
The tenants supplied a photo that showed underfloor foil installation. Foil insulation that is in reasonable condition does not currently need to be replaced. If the foil insulation is damaged it must be replaced with insulation that meets the new requirements.
The photo evidenced ripped foil such that I consider it not in reasonable condition. The photo was not sufficient to ascertain the extent of damage to the total installation of foil.
The ceiling was a cathedral type in part with no obvious cavity for insulation. No evidence regarding the remainder of the house and any missing insulation was produced by the applicants.
The extent of damage notwithstanding, I do not consider the underfloor insulation to be in reasonable condition. The landlord had undertaken to inspect the insulation at the commencement of the tenancy. This was never done.
I find the landlord has committed an unlawful act. 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] consider that the landlord has failed to comply with the HHS ventilation standard.
Compliance dates for the HHS vary depending on the tenancy. For private rentals such as here (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.
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. No exemption had been claimed here.
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 that the landlord has failed to ensure the kitchen and bathroom had adequate extractor fans installed within the statutory time period.
I find the landlord has committed an unlawful act. Termination without grounds
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord first attempted to serve notice on 2 April 2024, giving 52 days’ notice to the tenants. The landlord accepted this notice had no legal basis. It cited the need for the premises for a worker but the requirement of s 51(1)(b)(i) RTA is such a notice may apply only if the landlord customarily uses the premises, or has acquired the premises, for occupation by employees of the landlord or by contractors under contracts for services with the landlord, and that fact is clearly stated in the tenancy agreement. It was not.
I find the landlord committed an unlawful act in serving the first notice to terminate.
A second notice to terminate was served 18 May 2024. That notice is accepted by the tenants and the tenancy will end 18 August 2024, unless earlier via tenant notice. Quiet enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s 38(2) Residential Tenancies Act 1986). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (see s 38(3) and Schedule 1A RTA).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
The landlord has not inspected the premises during the tenancy. There has been minimal in-person interaction between the parties. The relationship of the parties had soured after the first termination notice, and this application being lodged. The main issue regarding quiet enjoyment raised by the tenants regarded the physical serving of the second notice to terminate. On 18 May 2024, a family member of the landlord was used to serve the notice by hand. By this stage, the landlord said they had sought legal advice. The means of service of documents is addressed by s 136(1) of the RTA. It reads: Where any notice or other document is required or authorised by this Act to be given to or served on a landlord or a tenant, it shall be sufficient if it is given or served in any of the following ways: (a)it may be given to or served on the landlord or the tenant personally: (b)it may be sent by post addressed to the landlord or the tenant at the address or the Post Office box given by the landlord or the tenant as an address for service in accordance with this Act: (ba) if the landlord is a company, it may be sent by post addressed to the landlord at the address of the landlord’s registered office: (c)it may be delivered to the premises to which any address for service relates, and either placed in the mailbox or attached to the door in a prominent position: (ca) if the landlord is a company, it may be delivered to the landlord’s registered office, and either placed in the mailbox or attached to the door in a prominent position: (d) it may be transmitted to the email address or facsimile number given by the landlord or the tenant as an address for service.
For reasons that remain unclear, the service was performed with the tenants present, making (a) above the most obvious option to use. Instead, service per (c) was completed by placing the notice on the door in a prominent position, ignoring the tenants and undertaking the physical service as evidenced by a photograph.
Section 136(1) does not establish any sequence or priority of the service options. While understanding the frustrations of the tenants, I do not find the service option adopted was not available to be used. Further, the service was conducted by a third person rather than the landlord. Given the deference of the landlord to the third person evidenced in written submissions, I consider it more likely the service method was of his choosing.
I do not find grounds for any specific compensation for any breaches of quiet enjoyment.

Should exemplary damages be awarded?

As I have determined that the landlord committed unlawful acts I must decide if it is appropriate to award exemplary damages.
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).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages may not be awarded where the failure is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten or been unaware, as a landlord should have systems in place to ensure this does not happen.
The landlord has breached its obligations around the HHS (insulation and ventilation) and smoke alarms. Those are all breaches of section 45 RTA. The District Court has confirmed that there can only be one exemplary damages award for a breach of a section, but I should take into account the number and extent of the breaches when deciding the level of exemplary damages to order.
It is strongly in the interest of tenants and the public generally that landlords maintain premises, provide smoke alarms, and comply with the HHS. The failures of the landlord make it appropriate to make an order. Taking into account three specific breaches, I have determined that exemplary damages at 50% of the maximum would be indicated, and therefore order the payment of $3,600 for a breach of the landlord’s obligations under section 45.
The final unlawful act was the attempted first termination. I consider some exemplary damages should follow, given the impact on the tenants. Any such order is considered to sit at the lower end of the scale and I order $250.00 as exemplary damages in this instance, balancing the impact on the tenants and the landlord’s understanding at that time. Filing fee
As the tenants have been substantially successful, their application filing fee is returned to them. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenants requested suppression at the hearing. As they have been substantially successful, suppression is ordered.

Tenancy Tribunal case 4885581 — Exemplary damages at 77 James Road Right Branch, Bainham, Collingwood 7073

At a glance

Tenancy Tribunal case 4885581 — Exemplary damages at 77 James Road Right Branch, Bainham, Collingwood 7073

At a glance

Award balance

Claims & awards

Order

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions