How much money was awarded in case 4902513?

Bottle Hire: $120.00 awarded to tenant; Compensation: $500.00 awarded to tenant; Property Damage: $1,200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Gas Fitter’S Invoice: $309.35 awarded to tenant

What type of tenancy dispute was case 4902513?

The primary dispute was Exemplary damages. Related themes: Leaks.

Where can I read the official tribunal order for case 4902513?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10673096-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4902513?

Bottle Hire: $120.00 awarded to tenant; Compensation: $500.00 awarded to tenant; Property Damage: $1,200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Gas Fitter’S Invoice: $309.35 awarded to tenant

What type of tenancy dispute was case 4902513?

The primary dispute was Exemplary damages. Related themes: Leaks.

Where can I read the official tribunal order for case 4902513?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10673096-Tribunal_Order_Redacted.pdf.

313 Branch Drain Road, Leeston, RD 2, Leeston 7682 Tenancy Tribunal Case 4902513 — Exemplary damages

Q: What was Tenancy Tribunal case 4902513 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

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Order

Claims and awards in Tenancy Tribunal application 4902513 — net $2,149.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages – gas boiler	$1,200.00	Exemplary damages – gas boiler
Gas fitter’s invoice	$309.35	Gas fitter’s invoice
Compensation – sewage leak	$500.00	Compensation – sewage leak
Bottle hire	$120.00	Bottle hire
Filing Fee	$20.44	Filing Fee
Net award	$2,149.79
Total payable by Landlord to Tenant	$2,149.79

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names.

Red Chili Property Management Limited T/A Ray White and Anne Green and Donald Green as Trustees of the Glenmore Farm Trust must pay [the applicants] $2,149.79 immediately, calculated as shown in the table below.

The tenants’ other claims are dismissed.

Reasons

The second named tenant attended the hearing on behalf of the tenants. Ms Callister of Ray White attended for the landlords. Parties

The tenancy agreement named Ray White as agent for the landlord Glenmore Farm. In fact, they were acting for the trustees of the Glenmore Farm Trust who are named in this order.

Plainly Glenmore Farm is not a legal person; it is a farm. Therefore, the agreement fails to identify the landlords. Agency law allows a party to sue the agent of another party where that agent has not disclosed that they are acting as agent or has not disclosed the identity of person they are agent for (their principal).

In this case Ray White have not identified their principal in the agreement and so the tenants are able to sue Ray White. They are therefore named in this order. The tenants are also able to sue the landlords and now that the landlords have been identified, they have been added as parties. Background

The tenants claim compensation for breaches of the landlords’ obligations in relation to the condition of the premises.

The tenancy was from February 2023 to April 2024.

The premises are a solidly built farmhouse surrounded by grazing land. Water heating is provided by a gas boiler installed on the outside of the house supplied from 45kg gas bottles.

When the tenants came to move into the premises, they had not arranged for the gas bottles to be delivered. They said that their gas supplier informed them that the gas installation must be certified before gas bottles could be supplied to the premises. The tenants therefore employed a gas fitter to check and certify the installation.

The gas fitter came and inspected the installation on 1 March 2023 and informed the tenants that he could not certify the installation because it did not comply with the relevant regulations. The reason it did not comply was that the boiler was installed too close below an openable window. There must be a distance of at least 1500mm between the top of the boiler and an opening and the distance in this case was 600mm.

The reason for that rule is to limit the possibility of gases from the boiler entering the house. The window above the boiler is a louvered window for the toilet. The risk of gases entering through the window is obvious.

The tenant sent an email to Ray White late on 28 February saying that the gas was on, but the hot water was not working. The gas delivery person told the tenants that they would have to get a gas fitter to get it running and so they engaged one. The gas fitter cost $309.35 and the tenants seek reimbursement of that cost from the landlords.

In June 2023 the tenants noticed a wet patch forming in the field on one side of the house and extending into the garden. There was a smell of sewage. It seems that a pipe or pipes that take the waste from the toilet and discharge it into the field, in what is a green solution to waste treatment, were damaged and leaking effluent. Cows in the filed probably damaged the pipes which allowed waste to discharge in an area on the fence line close to the house.

The owner came with someone else and inspected the situation but, according to the tenants, they took no action. The tenants erected an electric fence in the field to prevent the cows from grazing near the house.

The tenants complained about the problem again in early October and the owner rectified the situation. There is a dispute over whether the problem persisted between June and November. Photos taken by Ray White in July do not show any wetness in the area.

The tenants said that the waste extended as far as the house and went under the house, but the photographs did not show that, at least to my eyes. The tenants said that they were affected by the smell and had to keep the bedroom window on that side closed and move their son out of that room. They said the smell affected the rest of the house as well.

The tenants said that there were other maintenance tasks that came up during the tenancy which they attended to themselves because they could not rely on the landlords to do so.

The tenants also felt that the house had settled during wet weather, cracks appeared, and they did not feel that the house was structurally sound. Law

Under section 45 of the Residential Tenancies Act 1986 (the Act), a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.

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. Claims Discussion and Decision Gas Boiler

Ms Callister said that the gas boiler was installed in 1997 and she suggested that the regulations at that time did not require it to be certified. She did not produce or refer me to the relevant regulations in force at the time.

The landlords did not do anything about the gas boiler during the tenancy, but since it ended, the window above it has been boarded up and the boiler is to be moved.

The current regulations are the Gas (Safety and Measurement) Regulations 2010. The regulations in force in 1997 were the Gar Regulations 1993. Both regulations require compliance with the New Zealand Standard NZS 5261, and both require the installer of a gas installation to certify it as compliant with the regulations. There appears to be no requirement for regular checks or certification although annual checks are recommended.

I would not expect NZS 5261 in 1997 to be materially different from the current version. Specifically, I would not expect the relevant requirement regarding installation close to an opening to be any different. I would also not expect the manufacturer’s installation instructions to allow the installation as it was during the tenancy.

I am therefore satisfied that the gas boiler was not installed in accordance with the relevant regulations at the time and it has remained non-compliant ever since.

I don’t know the landlords’ state of knowledge concerning the boiler’s compliance with the regulations at the time it was installed, but they were aware of the non-compliance when the tenants sent Ray White the gas fitter’s invoice in March 2023, and they did nothing about it during the tenancy.

I find that this was an intentional breach of their obligations under s45 of the Act and an unlawful act.

I find that the landlords’ failure to remedy the situation with the boiler was a serious breach of the Act. Just about any breach of rules regarding gas or electrical safety potentially puts the tenant at risk of harm.

I note the letter from the Gasfitters Board dated 23 July 2024, but I read that as stating that the boiler was safe only after the window was boarded up. It does not state that it was safe during the tenancy when the window was not boarded up. Any other interpretation would not make sense.

I accept the tenants’ evidence that they had to keep the window closed and even then, they could smell gas in the house, which would have unpleasant. The gas contains a very powerful odorant and so even small quantities have a strong odour.

I find that there should be an award of exemplary damages to address the harm and potential harm to the tenants and the landlords’ indifferent attitude to the tenants’ safety and comfort. An award in the sum of $1,250 is appropriate. I have taken into consideration the effect on the tenant and so there is no need for a separate award of compensation.

I have also awarded the cost of the gas fitter who attended and discovered the non-compliance. There is some doubt about whether the tenant needed to call out the gas fitter, but as it turned out, it has brought an unsafe situation to the attention of the landlords. It is therefore fair that the landlords should reimburse the tenants.

I have made an award for the cost of hiring gas bottles. That is a landlord’s expense. The tenant must pay for the gas. The tenant has not provided an invoice, so I have awarded a typical hire cost. Effluent Discharge

There is no doubt that there was a discharge of effluent close to the house in June and again in early October 2023. It was not fixed until November 2023. I find that the landlords did not do enough between June and November to ascertain the cause of the discharge or doing anything about it.

I find that it is likely that between June and October sewage did discharge near to the house and caused the discomfort for the tenants. It was likely intermittent and happened when there was heavy rain.

I find that an award of compensation is an appropriate remedy and an award of $500 is reasonable compensation. Other Claims

The tenants did not provide enough evidence to prove their claim that they replaced or repaired items in the premises which the landlord failed to replace or repair.

I find that the cracks that the tenants complained about were not signs that the house was unsafe.

These claims are therefore dismissed. Filing Fee

The tenants have had significant success and so I have awarded them the filing fee. Suppression

Because the tenants have had significant success, I have granted them name suppression.

Order

Claims and awards in Tenancy Tribunal application 4902513 — net $2,149.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages – gas boiler	$1,200.00	Exemplary damages – gas boiler
Gas fitter’s invoice	$309.35	Gas fitter’s invoice
Compensation – sewage leak	$500.00	Compensation – sewage leak
Bottle hire	$120.00	Bottle hire
Filing Fee	$20.44	Filing Fee
Net award	$2,149.79
Total payable by Landlord to Tenant	$2,149.79