What was Tenancy Tribunal case 4888002 about?

The tribunal order states: Leng Minn Kit must carry out the following work to the premises:

How much money was awarded in case 4888002?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4888002?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4888002?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10984230-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4888002 about?

The tribunal order states: Leng Minn Kit must carry out the following work to the premises:

How much money was awarded in case 4888002?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4888002?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4888002?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10984230-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4888002 — Exemplary damages

Order

Leng Minn Kit must carry out the following work to the premises: a. To complete the tenancy agreement in accordance with the current requirements of section 13A of the Act within one month of this order. b. To paint the replaced skirting boards within one month of this order. c. To clean and repair the rot in the windows within three months of this order. d. To clean and repair the water ingress damage on the ceilings of the premise within three months of this order. e. To investigate and repair the damaged shower lining within three months of this order. f. To clean the gutters and ensure all ends have stoppers within one month of this order. g. To clean the exterior of the premise within two months of this order. h. To ensure the home is weathertight within six months of this order.
All work directed in Order 2 is to be completed in a workmanlike manner to the relevant industry standard. The work required to ensure the premise is weathertight (Order 2(h)) is to be completed by a suitably qualified tradesperson, to the relevant industry standard.
Until the landlord has complied with Orders 2 and 3, the tenant’s rent is reduced to $190 per week, 1 effective from the date of this Order.
Leng Minn Kit must pay The Chief Executive, Ministry of Business, Innovation, and Employment on behalf of [The tenant/s] $4,168.21 immediately as calculated and recorded for the breaches listed in the table below:
Leng Minn Kit is restrained for a period of 3 years from the date of this order from committing the following breaches of the Residential Tenancies Act 1986: a. Failing to provide a completed and accurate tenancy agreement (section 13A). b. Failing to comply with any improvement notice issued to him by the Chief Executive, Ministry of Business, Innovation, and Employment (section 126J) c. Failing to ensure that a premise is weathertight (section 45(1)(b)&(c)).
All other claims are dismissed. 1 From $240 per week.

Reasons

The Chief Executive, Ministry of Business, Innovation, and Employment (the Chief Executive) has filed a claim against Mr Kit, the landlord of this premise. The application was made on behalf of [The tenant/s]. MBIE was represented in the proceedings by counsel, Ms Colville. Mr Kit appeared at the hearing.
When proceedings are brought by the Chief Executive, the Tribunal must determine them in the same manner as it would if the tenant was bringing the claims. The Chief Executive has the burden of proving the claims to the civil evidential standard of the balance of probabilities. The relevant law is the Residential Tenancies Act 1986 (the Act).
The Chief Executive claims the following against Mr Kit: (a)an order for exemplary damages not exceeding $3,000 for committing an unlawful act under s 126J(1) of the Act, that is in failing to comply with an improvement notice; and (b)an order for exemplary damages not exceeding $7,200 for committing an unlawful act under s 45(1)(b) of the Act, that is in failing to provide and maintain the premises in a reasonable state of repair; and (c)an order under s 109A(1) of the Act restraining Mr Kit from committing further unlawful acts under section 45(1)(b) of the Act for a period not exceeding 6 years; and (d)a work order pursuant to s 78(1)(e) of the Act requiring Mr Kit to: i. carry out necessary work to comply with the Improvement Notice issued on 23 February 2023; and ii.carry out internal and external repairs to the hole identified in the lounge; and iii.carry out the necessary repairs to damaged cladding, and flashings causing structural problems; and (e)an order requiring Mr Kit to pay the filing fee of $20.44; and (f)an order requiring Mr Kit to pay the costs associated with the weathertight assessment undertaken by [The assessor] ($2,837.74); and (g)an order requiring Mr Kit to pay witness expenses. Background
Mr Kit and his wife purchased the premise in 2006. It is a converted garage; the main house on the site is [neighbouring address], and is also tenanted. When Mr Kit purchased the property, both buildings were being utilised as residential dwellings. He has run both as residential tenancies since the purchase.
There is no dispute that Mr Kit has been managing the tenancy and is the relevant ‘landlord’ in the proceedings pursuant to section 2 of the Act. Mr Kit is the landlord in relation to six other tenancies.
[The tenant/s] commenced this tenancy in 2008.
Mr Kit had come to the attention of the Tenancy Compliance and Investigations Team (TCIT) in 2019 on an unrelated tenancy. As a result of that involvement, Mr Kit was placed on the TCIT register for future assessments.
In July 2022 Ms Chan was assigned by TCIT to undertake a proactive ‘Detailed Assessment’ with regard to Mr Kit’s practices as a landlord. She issued a Notice to Produce Documents pursuant to sections 123A and 133 of the Act relating to this property and others. Mr Kit failed to comply, and a further Notice was issued in August.
When Mr Kit again failed to comply, a formal warning was issued and he responded by producing the bond lodgement form, a pre-tenancy application form and insulation certificate regarding this property. Mr Kit’s evidence is that he could not find the tenancy agreement.
Ms Chan then spoke with [The tenant/s] who advised her of maintenance issues that Mr Kit was aware of but had failed to remedy. As a result, Ms Chan conducted a site visit of the property on 9 November 2022.
Ms Chan’s evidence is that she observed the following at the site visit: a. A large pile of cut bamboo on the driveway. b. Swollen and mouldy skiting boards and window frames throughout. c. The oven/stove was old and rusted. d. Black mould on all ceilings. e. A crack in the lounge ceiling with discolouration. f. Broken guttering. g. Grean algae and mould on the exterior. h. A long-term drip in the shower.
As a result of her findings, Ms Chan commenced an investigation and Mr Kit was formally interviewed on 13 December 2022. Mr Kit did not dispute the maintenance issues in the interview.
On 23 Feb 2023 Ms Chan issued an Improvement Notice (the Notice) to Mr Kit with a compliance date of 23 May. It is not disputed that Mr Kit did not lodge an objection to the Notice 2 , nor did he seek a time extension within time. 3 The Notice documented that: a. Mr Kit had not provided a tenancy agreement. b. There was extensive mould on the exterior of the unit. c. There were swollen skirting boards and window frames from excess moisture. d. The stove top was broken. e. There was broken guttering. f. There was bamboo lying about the property that had been for some years. g. The shower was broken and damaged.
The Notice was issued on the basis that the Chief Executive had reason to believe Mr Kit was contravening or likely to contravene the following: a. Section 13 of the Act: the failure to provide [The tenant/s] with a tenancy agreement. b. Section 45(1)(b): the failure to provide and maintain the premise. c. Section 45(1)(c): the failure to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premise.
On 21 May Mr Kit provided photos to Ms Chan indicating 4 that he had: a. Removed the bamboo. b. Made some repairs to guttering. c. Replaced some skirting boards. d. Replaced the shower head. e. Made some repairs to the bathroom window.
A further site visit occurred on 14 November 2023. The following was noted: a. The bamboo had been removed. b. Some skirting boards had been replaced but there remained swollen and mouldy skiting boards and window frames. c. The oven had been replaced but was not fully functional. 2 Pursuant to section 126M of the Act. 3 Pursuant to section 126K of the Act. 4 No explanation was provided with the photos. d. There were still signs of moisture ingress (mould, water marks and a crack in the ceiling). e. The guttering appeared to be in a poor state of maintenance with at least one end missing. f. The exterior of the property had not been cleaned. g. The shower head had been replaced but the damage to the liner was not repaired. h. There was a hole in the corner of the lounge that brought daylight in. This had not been noted at the previous visit because [The tenant/s]’s belongings obscured it. He had not been aware of the hole prior. i. The exterior cladding and joinery were rusted, damaged and warped. This had also not been noticed at the earlier visit because the bamboo had been covering it.
TCIT then engaged an independent weathertight assessment to be undertaken by [The assessor]. [The assessor] is a qualified and practicing Member of the New Zealand Institute of Building Surveyors and a Weathertight Assessor as defined in section 31 of the Weathertight Homes Resolution Service Act 2006.
[The assessor] visited the property on 15 February 2024. His evidence is summarised as follows: a. The internal walls and ceilings show signs of damp and mould. b. Non-invasive moisture meter readings found elevated levels of moisture in the perimeter walls in the bedroom (north and west corners), bathroom and kitchen. c. There is evidence of moisture ingress from the roof and the lower external walls. d. The mould is mostly if not all caused by the moisture ingress rather than a lack of ventilation and cleaning. e. The cause of the moisture ingress is the roof which has exceeded its lifespan, the cladding which has rusted and rotted in areas, and open gaps at joinery connection points. f. The issues have arisen due to poor building practices and a lack of maintenance. g. The roof needs to be replaced. Temporary or partial repairs would only last approximately six months, after that the deterioration would continue. h. The cladding has rusted because of its proximity to the ground and lack of supports. It therefore needs to be removed, supported and then replaced. i. The property, as it is, would not meet the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) which come into force for this property on 1 July 2025. This is because it is not weathertight, nor draught proof, does not have compliant extractor fans and does not have adequate drainage. j. The electrics appear not to be up to standard as the switch board is located above the stove which does not comply with AS/NZS3010 Electrical Installations.
Ms Chan emailed Mr Kit 5 advising him that she did not consider he had adequately complied with the Notice and invited him to respond; she did not notify him of her appointment of [The assessor] nor of the repercussions of any failure to reply. Mr Kit did not respond.
The Chief Executive filed the application with the Tribunal on 17 May 2024. A case conference was held on 8 July and subsequent to that Mr Kit provided further photos to Ms Chan evidencing the following work: a. Further skirting boards had been replaced. b. New flooring had been laid throughout the property. c. The hole had been patched up with silicon. d. A tenancy agreement was signed on 7 July 2024.
The hearing was held on 8 October. Ms Chan, [The assessor] and [The tenant/s] gave oral evidence. The written statements and exhibits of two other TCIT investigators, Ms Todd and Ms You were accepted by consent. An initial issue – whether the property is a lawful premise
During the hearing a question was raised as to the lawfulness of the premise given its obvious conversion from a garage to a dwelling and the unprofessional standard of the building as attested to by [The assessor].
Section 78A of the Act refers to unlawful premises, allows the Tribunal to make orders from its own initiative and states: For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and 5 16 February 2024. (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), ..., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 36 of the RTA states that: The landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
Ms Colville produced an email from the [Council] who had been involved in the investigation upon the questioning of Ms Chan. The email evidence from the Council 6 satisfies me that the Council turned their mind to the lawfulness of the premise during their interactions and found no concern with its current use. Accordingly, I do not find that the evidence before me substantiates that the premise is an unlawful premise in accordance with section 78A of the Act.
However, because the issue was not considered fully by either party, and the evidence provided was limited, should further evidence of concern be found by the Chief Executive, this finding does not preclude them from making a specific application on the point in future. Landlord’s position
Mr Kit says he tried his best to comply with the Notice and engage with Ms Chan. He believes they did originally have a tenancy agreement, but it has been mislaid with the passage of time. He is committed to complying with the work that is required however his budget is low.
Mr Kit says he has obtained quotes for replacing the roof which are high but manageable if given a sufficient amount of time. He was not aware until the hearing that the cladding needed replacing and is concerned that it will cost him more than he can afford, to the extent that he may need to consider demolishing the property and starting again.
He says the tenancy has gone well because he and [The tenant/s] are amicable. He accepts he has not done much maintenance but considers he has done what [The tenant/s] asked of him. He purposely did not increase the rent 7 substantially over the tenancy to reflect his lack of maintenance. He attributes the mould to [The tenant/s] not cleaning adequately.
Mr Kit accepts [The assessor]’s evidence to an extent. He challenged the evidence regarding the extent of the work required saying he could do temporary 6 Stating that on 29/9/98 Code of Compliance was issued for garage works to include a kitchen and bathroom. 7 It is currently $240 per week. repairs. Since he initially spoke with [The assessor], he says he has secured the roofing screws and iron sheets. Chief Executive’s position
The Chief Executive submits that Mr Kit did not comply sufficiently with the improvement notice and is failing to provide a property in a reasonable state of repair. They say they tried to engage and collaborate with him to improve the premise, but he did not respond adequately to them. As such they seek work orders, exemplary damages and costs. Tenant’s evidence
[The tenant/s]’s evidence is that although there have been maintenance issues with the property and have been for many years, he is happy there. The maintenance issues he has lived with and has spoken to Mr Kit about are (summarised): a. Bamboo and weeds growing through the floor and joinery. b. Moisture ingress from the roof as there is mould, wet patches on the ceiling, a crack in the lounge ceiling and blistering paint. c. The shower has been leaking for years which has disturbed his sleep and caused him to shower at work. d. The oven has been rusty and faulty for years.
He says mostly he just fixed what he could and didn’t complain because he gets on with Mr Kit and is mainly happy there.

What are the issues for the Tribunal?

The evidence of the lack of maintenance is largely uncontested, the level of Mr Kit’s engagement with TCIT and what repairs are necessary to comply with the law is.
The questions for the Tribunal are therefore: a. Has Mr Kit failed to comply with the Notice? b. Has Mr Kit failed to provide and maintain the premise in a reasonable state of repair? c. If so, should exemplary damages be awarded? d. Also if so, should work orders be made? e. Also if so, should restraining orders be made? f. Should costs be awarded?
I discuss each of the claims of breach initially before going on to consider the specific questions I must answer. I follow the order of the alleged breaches as set out in the Notice.

Has the landlord failed to provide a tenancy agreement?

Both [The tenant/s] and Mr Kit thought they had signed a tenancy agreement, but neither could find it. Given Mr Kit could find [The tenant/s]’s application form for the tenancy but not the agreement, I find it more likely than not that they did not sign a tenancy agreement when the tenancy commenced on 1 November 2008.
Mr Kit was asked to retrospectively draft one in his initial engagement with TCIT in 2022 but did not do so until July 2024. The agreement now signed does not comply with the requirements of section 13A of the Act. There are factual inaccuracies, and it is incomplete.
In 2008 the requirement was still that tenancy agreements must be in writing and signed:
Mr Kit has therefore breached the Act by failing to provide a written and signed tenancy agreement that is compliant with the Act. This is an unlawful act. He has also failed to comply with the Notice in this regard.

Has the landlord failed to comply with their maintenance obligations?

Relevant law

Section 45 of the Act details a landlord’s obligations to provide and maintain the premises in a reasonable state of repair having regard to the age, and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. Furthermore, a landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises. Notably, the Housing Improvement Regulations 1947 (the Regulations), specify the minimum standards of fitness for houses which include a requirement that every house be free from dampness (Regulation 15). There are also obligations in the Building Act 2004 that a building is insanitary if it has insufficient or defective provisions against moisture penetration as to cause dampness in a building (section 123).
The obligation to maintain is not an absolute one, and a landlord is not liable for the consequences where a defect is latent and unobservable (Barfoot & Thompson v Casey: DC Auckland CIV-2005-004-001762, 7 November 2007).
The obligation also has proactive components. If a defect is observable at the start of the tenancy, the obligation to provide the premises in a reasonable state of repair arises at that point.
The obligations on a landlord during a tenancy are more complicated as the Act requires a tenant to notify the landlord as soon as possible of the need to repair 8 and, once the tenant has done so, the landlord must carry out the repairs as soon as reasonably practicable.
The Act also does not create an obligation for a landlord to inspect, but there are provisions that entitle a landlord to do so. Often it is reasonable to expect a tenant to notify a landlord of any damage and the need for repair. This is because a tenant who is living at the premises is likely to notice the damage when it occurs. However, if an issue is evident upon inspection or there is particular reason why a landlord should be aware of an issue, a landlord can be expected to take proactive steps. 9
Breaching section 45 of the Act 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 the Act. Exterior
The Notice identified extensive mould on the exterior of the property. The evidence indicates that there is mould and algae on the exterior which has not been cleaned off. Mr Kit agrees to now do so and has not provided a clear reason for his failure to do so.
There is no dispute that this issue was not addressed by Mr Kit in response to the Notice where it was specifically detailed. The extent of the mould and algae on the home is readily visible and is likely to be compromising the integrity of the building. This is in breach of section 45(1)(b) of the Act and an unlawful act. Mr Kit now consents to a work order to clean the exterior of the building.
The additional issue of the cladding was not identified until the second site visit and then [The assessor]’s report. It was not therefore included in the Notice, and I accept Mr Kit’s evidence that he was not aware of the extent of the repair needed until the hearing.
There is no dispute that the cladding of the premise is in need of serious repair; it has permitted water ingress into the home. In this respect therefore the property is in breach of section 45(1)(b) and (c) of the Act. Despite this Mr Kit has not had an opportunity to investigate and remedy the issue. 8 Section 40(1)(d) of the Act. 9 [2022] NZTT [Rotorua] 4273958, 4373982, 4273973, 4310871, 4310889, 431087. Damp – swollen skirting boards and window frames
The property is clearly inherently damp which is in breach of section 45(1)(b) and (c). 10 Heavy black mould is evident throughout, there are cracks in the paint, windows are rotting and swollen, plants are growing inside and there are water marks on the ceilings.
There is no dispute that [The tenant/s] should have cleaned the mould more regularly but also that Mr Kit was aware and took no steps to investigate why the mould and damage was so extensive. I find it established in evidence that Mr Kit has replaced the swollen skirtings and the poorly maintained floor. He has also partially repaired one window, but others are in a state of disrepair. He has patched the hole in the lounge with silicon, but the reason for the hole 11 (and no doubt the plant ingress) has not been addressed.
I accept the evidence of [The assessor] that the inherent damp is due to the poor construction of the building which has resulted in the need for repairs now, and the roof which now needs replacing.
Ms Chan agrees now to paint the newly installed skirting and investigate the window disrepair further, including removing the mould on them. He has already commenced investigating a roof replacement.
I find that Mr Chan did not comply with the Notice within time regarding the skirting and windows, but he has done so now to an extent. The lack of repair to the damage that has been caused by the water ingress is breach of the landlord’s obligation to repair the property. I find Mr Kit was or should have been aware of the issues with the inherent damp given the extensive obvious signs. He has failed to investigate and remedy this which is an unlawful act. Stove
Mr Kit has installed a replacement oven. Although it is second hand [The tenant/s] has not had issues with it that he has raised prior to the hearing 12 . He says he was told to not use all elements and the oven at the same time or a fuse might blow, although he has not tested that advice.
The evidence is limited as to when the oven was installed. It was certainly prior to the second site visit.
After consideration of the evidence, I am satisfied that it is more likely than not that this element of the Notice was remedied within time. The previous oven had been an issue for [The tenant/s] however as he had not raised it with Mr Kit. There 10 Regulation 15. 11 The cladding disrepair. 12 He did say at the hearing that the warming drawer may not be working but he had not raised that with anyone prior to the hearing. are no proven deficiencies with the replacement oven as there is no real evidence that it cannot be used fully. I find no failure of Mr Kit here. Guttering
Mr Kit did move the guttering to deal with the hole although not within the time frame allocated. The evidence indicates that there is still one end of the guttering that is not stopped when it should be. The gutters also need a clean.
I find that Mr Kit did not remedy this issue in accordance with the Notice, and the gutters have been poorly maintained which is in breach of section 45(1)(b) of the Act. Bamboo
Mr Kit remedied this issue within time. Shower
The shower has been leaking for a number of years, most likely close to a decade. Mr Kit replaced the shower head which stopped the leak within the time frame allocated by the Notice. However, the damage to the shower liner was not investigated nor repaired within time. This is a breach of the Notice.
I am also satisfied that Mr Kit did breach section 45(1)(b) of the Act with respect to the shower as [The tenant/s] identified it as a maintenance issue and it was not addressed until directed by TCIT. Hole
Mr Kit has patched the hole when it was notified to him. The cause of the hole is addressed elsewhere.
I now turn to the specific questions asked of the Tribunal.

Has Mr Kit failed to comply with the Notice?

As discussed above I have found that Mr Kit has failed to comply with the Notice within time with respect to the: a. Provision of a tenancy agreement. b. Cleaning the exterior. c. Repairing the window frames that have been damaged by excessive moisture. d. Ensuring the guttering is functioning adequately. e. Repairing the shower liner.
The relevant provisions of the Act which relate to improvement notices, as far as this dispute is concerned, are as follows: Section 126H provides the Chief Executive with the ability to issue improvement notices. Section 126I then sets out the content required in an improvement notice: Section 126J then addresses the situation of the party failing to comply with an improvement notice:
The Act also sets out a process upon which a landlord can object to an improvement notice:
It is important to recognise that while recommendations were made in the Notice, it is not an unlawful act if Mr Kit chose not to follow those recommendations; he was entitled to take some other course in order to remedy the breach. I am therefore not considering whether Mr Kit failed to implement the recommendations outlined in the Notice, but whether he failed to address the specific breaches outlined.
I have found merit in Ms Chan’s assessment of the relevant breach findings, and furthermore I do not accept that Mr Kit has actioned the Notice as fully required. He has started but not finished. He was made aware in the Notice and following emails from Ms Chan of the implications in failing to comply.
Accordingly, I find that Mr Kit did not object to the Notice and did not comply within time by addressing the breaches outlined to him. This is an unlawful act.

Has Mr Kit failed to provide and maintain the premise in a reasonable state of repair?

As discussed above I have found that Mr Kit has failed to provide and maintain the premise in a reasonable state of repair with respect to: a. The exterior of the property which is in a poor state of repair. b. The damage on the windows and ceilings from moisture ingress. c. The home being inherently damp as it is not weathertight. d. The guttering which is not functioning adequately. e. The shower which is damaged.
Mr Kit has accordingly breached section 45(1)(b) and (c) of the Act which is an unlawful act.

Should exemplary damages be awarded?

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The principles for awarding exemplary damages are largely well established. Exemplary damages are intended to be punitive rather than compensatory, and the Tribunal must be satisfied that the party intended the act or the inaction that is unlawful.
Intention cannot be subverted because a landlord was not aware of the law. As follows: 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 consequences for the unlawful acts involved by claiming ignorance of the law. 13 Section 126J of the Act – failure to comply with the improvement notice
Mr Kit was aware of what the Notice required him to do and has no real response for his delay. Ms Chan was fully available for discussion on the matters at any time. Accordingly, I find the breach of section 126J of the Act was intentional.
I consider an award of exemplary damages just in the circumstances having taken into account the following in particular: a. Mr Kit took some steps initially and more later, although he did not remedy all matters. I am satisfied that he tried but did not fully appreciate the significance of the process. b. Had Mr Kit engaged with Ms Chan earlier and more meaningfully, the matters would not have progressed as they did. TCIT is established primarily to engage with landlords and assist them to comply with their obligations, and Mr Kit had plenty of opportunity to do so. c. Although Mr Kit has faced Tribunal proceedings previously, this has been his first engagement with TCIT. d. The impact on [The tenant/s] is that the maintenance issues on his home have not been addressed and he has had to be involved in these proceedings. e. It is clearly in the public interest for landlords to work with the TCIT to the benefits of their tenants and themselves. TCIT will only progress serious breaches of the Act to proceeding, and these were. 13 TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundhal [2021] NZDC 16182.
The maximum awardable for such a breach is $3,000. Having considered the above factors carefully, I find that an award of $1,000 is appropriate. Mr Kit did take steps to comply and has to an extent. He has taken a lackadaisical approach to this tenancy and the involvement of TCIT, but I do not find that he intended to cause harm with his failure to comply with the Notice. Section 45(1)(b) of the Act – failure to maintain
As discussed I have found that Mr Kit has failed to maintain the premise adequately as follows: a. The exterior of the premise is in a state of disrepair. b. The roof of the premise is in a state of disrepair. c. The guttering is not functioning adequately. d. The property is inherently damp. e. There is damage on the ceilings and windows from excessive moisture. f. The shower liner is damaged.
Mr Kit was made aware of these issues at various times throughout the tenancy although particularly in the last two years. He was therefore aware of the need for repair and failed to take meaningful steps to address the issues. He has therefore intentionally breached his obligations to maintain the premise.
This is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 14 Separate orders for each respective breach are not sought by the Chief Executive, accordingly I consider a “globalised” award for the breach of the general obligation to maintain the premise.
I do not consider exemplary damages justified with respect to the cladding disrepair. Mr Kit has only just been made aware of the extent of these issues, therefore the amount ordered does not cover this maintenance issue.
Ms Colville notes that Mr Kit has been involved in at least two previous Tribunal proceedings. One case related to [Neighbouring address] where the Tribunal found that Mr Kit had not met his maintenance obligations with respect to mould and dampness. 15 In the second proceedings Mr Kit was warned that the Tribunal accepted that he was engaging in a “clear pattern of...taking short-cuts on maintenance”. 16
Ms Colville therefore submits that the award of exemplary damages should be at the higher end of the scale given Mr Kit’s previous failures of a similar nature, his 14 See section 45(1A) and Schedule 1A Residential Tenancies Act 1986. 15 Paragraph 16, Ming Leng Kit v Patricia Murray [2019] NZTT North Shore 4172866, 4173695. 16 Paragraph 16, Minn Leng Kit v Ryan Morris [2019] NZTT Huntly 4178649, 4171825. warnings by the Tribunal and TCIT and the seriousness and longevity of the maintenance issues.
I agree that an award of exemplary damages is just in this case. Mr Kit failed to attend to any real maintenance over the majority of this lengthy tenancy. He ignored real and pressing signs of a leak. This Tribunal has ruled in previous cases that as a general proposition a leak is a serious matter and must be repaired promptly. Leaks go to the very essence of a tenant’s right to the use and enjoyment of the premises in consideration of the rent that the tenant pays. A leak is not a mere inconvenience; it creates an undesirable and unhealthy living environment.
Furthermore, plants and mould were growing inside [The tenant/s]’s living environment. This is extremely unhealthy and indicates a serious maintenance issue.
[The tenant/s]’s notification of the shower leak was downplayed despite him telling Mr Kit he was showering at work and the drip kept him awake at night. Therefore, not only was [The tenant/s]’s physical health at risk, but so too was his emotional health.
Mr Kit has been negligent and remiss. He has been a landlord since 2006 of a number of properties and therefore knows the law or is deemed to know it. He continued to evade his obligations when TCIT engaged with him, and he has largely ignored their efforts to work with him. There are also concerns he has placed pressure on [The tenant/s] regarding these proceedings.
In mitigation I accept his willingness to consent to work orders 17 and that he has taken some steps to rectify the issues. However, he has minimised other issues and remains of the view that patch up work will fix the serious issues with damp this property is suffering.
It is also of significant public interest that landlords comply with their obligations under the Act and provide warm, dry, healthy homes for their tenants.
Having considered all of the above, I find that an award of $2,500 exemplary damages is justified. Mr Kit’s negligence has been longstanding and has had serious impacts on [The tenant/s]. He is now willing to comply although he failed to engage meaningfully with TCIT during their investigation. At the hearing Mr Kit’s obligations were discussed in detail and I consider the orders made in this decision when viewed in their totality, sufficient penalty.

Should work orders be made?

17 See section 78(1)(e) the Act.

Where the Tribunal finds the landlord has failed to comply with any of the obligations set out in section 45(1)(a) - (ca) of the Act, it may make an order for the landlord to carry out the work.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order.
The following work orders are made by consent: a. To paint the replaced skirting boards. b. To clean and repair the rot in the windows. c. To investigate and repair the damaged shower lining. d. To clean the gutters and ensure all ends have stoppers. e. To clean the exterior of the premise.
The following work orders are not made by consent: a. To ensure the home is weathertight (this includes roofing and cladding maintenance). b. To clean and repair the water ingress damage on the ceilings of the premise. c. To complete the tenancy agreement in accordance with the current requirements of section 13A of the Act, including: i. That the details recorded are correct. ii. A statement to the effect that the home will comply with the HHS no later than 1 July 2025. iii. Information about the insurance held over the premise.
I appreciate that it may take some time for Mr Kit to fully comply with these orders therefore I consider a reduction in rent the appropriate monetary order. In reaching this decision I have also taken into account Mr Kit’s financial situation and [The tenant/s]’s wish to remain in his home.
I expect TCIT to assist Mr Kit to comply with these orders should he not fully understand what is being directed of him.

Should a restraining order be made?

Section 109A of the Act states that the Tribunal may restrain further commissions of unlawful acts if satisfied that it is in the public interest to do so. It is an offence to intentionally contravene such and is liable on conviction to a fine not exceeding $3,600.
Mr Kit was initially warned by TCIT that a failure to comply with the Notice could result in Tribunal proceedings and possibly a restraining order. Mr Kit has been to the Tribunal previously and is well aware of his obligations. He owns and manages other tenanted properties, and has done for a number of years.
As such, I am satisfied that a restraining order is appropriate to prevent further breaches of the Act and to ensure that future tenants are protected from this behaviour. The restraining order will remain in place for 3 years from the date of this decision.
The restraining order with respect to maintenance is only to be regarding a property’s weathertightness. This is because I consider the failure to address the source of the water ingress and subsequent effect on [The tenant/s] the main issue of concern during this tenancy.

Should costs orders be made?

Because The Chief Executive, Ministry of Business, Innovation, and Employment has substantially succeeded with the claim, I have reimbursed the filing fee.
Ms Colville submits that Mr Kit should also be liable for the costs of the witnesses. She makes this submission pursuant to section 102(2)(b) of the Act, which provides that the Tribunal may award costs where any party is represented by counsel.
Specifically, the Chief Executive seeks $50 for [The tenant/s] as he was summonsed to attend the hearing and took the day off work to do so. She refers to the Witness and Interpreters Fees, Allowances, and Expenses Regulations 2023, Schedule 2, Part 1, r 2 (WIFR).
The Chief Executive further seeks the following expenses with respect to [The assessor]: i. $597 for his attendance at the hearing. ii. $2,837.74 being the cost of his weathertight report.
Travel and meal costs are not sought.
Rule 13 of the Residential Tenancies Rules 2010 provides: A person who attends before the Tribunal for the purpose of giving evidence in any proceedings is entitled to receive any fees, allowances, and travelling expenses that the Tribunal directs in accordance with the scale set out in the Schedule of the Witnesses and Interpreters Fees Regulations 1974. 18 18 The Witnesses and Interpreters Fees Regulations 1974 have now been replaced 18 by WIFR.
The Chief Executive’s claim for [The tenant/s]’s costs and the costs regarding [The assessor]’s attendance are within the WIFR guidelines, and as such the orders are made as sought.
I turn to the weathertight report costs. Ms Colville submits that these should be paid by Mr Kit because [The assessor]’s engagement was required by Mr Kit’s failure to engage with TCIT.
Mr Kit says he was not told an assessor would be engaged and he considers the cost extortionate.
[The assessor] was engaged prior to the letter Ms Chan sent to Mr Kit on 16 February 2024 advising him that she did not consider he had complied with the Notice. He was not advised of the potential of the engagement, nor that it was an option that TCIT were considering. The communication with Mr Kit by TCIT after the Notice time period had expired was minimal.
Accordingly, I do not consider Mr Kit should be liable for these costs. The decision to instruct [The assessor] was TCIT’s alone and no engagement with Mr Kit on the matter had been entered into. He had not been told they considered he had failed to comply with the Notice by that stage nor the repercussions of doing so. Therefore, this claim is dismissed.

Should suppression orders be made?

Where the Chief Executive brings a claim on behalf a tenant under s 124A RTA, the Tribunal is required to order that the name and identifying details of the tenant not be published. 19 Accordingly [The tenant/s]’s details are not to be published.
I do consider it in the public interest 20 that Mr Kit’s details be published. He is the landlord of other tenancies and has not been substantially successful in defending the claims.

Tenancy Tribunal case 4888002 — Exemplary damages

Tenancy Tribunal case 4888002 — Exemplary damages

Order

Reasons

What are the issues for the Tribunal?

Has the landlord failed to provide a tenancy agreement?

Has the landlord failed to comply with their maintenance obligations?

Has Mr Kit failed to comply with the Notice?

Has Mr Kit failed to provide and maintain the premise in a reasonable state of repair?

Should exemplary damages be awarded?

Should work orders be made?

Should a restraining order be made?

Should costs orders be made?

Should suppression orders be made?

Order

Reasons

What are the issues for the Tribunal?

Has the landlord failed to provide a tenancy agreement?

Has the landlord failed to comply with their maintenance obligations?

Has Mr Kit failed to comply with the Notice?

Has Mr Kit failed to provide and maintain the premise in a reasonable state of repair?

Should exemplary damages be awarded?

Should work orders be made?

Should a restraining order be made?

Should costs orders be made?

Should suppression orders be made?