What was Tenancy Tribunal case 4904015 about?

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

How much money was awarded in case 4904015?

Compensation: loss of amenity, 72 we…: $5,400.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Report Cost: $879.75 awarded to tenant

What type of tenancy dispute was case 4904015?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4904015?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11145742-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4904015 about?

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

How much money was awarded in case 4904015?

Compensation: loss of amenity, 72 we…: $5,400.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Report Cost: $879.75 awarded to tenant

What type of tenancy dispute was case 4904015?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4904015?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11145742-Tribunal_Order_Redacted.pdf.

58 Hungerford Road, Houghton Bay, Wellington 6023 Tenancy Tribunal Case 4904015 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4904015 — net $8,706.75 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: loss of amenity, 72 weeks x	$5,400.00	loss of amenity, 72 weeks x
Exemplary damages: breach of duty to repair	$2,400.00	breach of duty to repair
Report cost	$879.75	Report cost
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$8,706.75
Total payable by Landlord to Tenant	$8,706.75

Claims and awards in Tenancy Tribunal application 4904015 — net $8,706.75 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: loss of amenity, 72 weeks x	$5,400.00	loss of amenity, 72 weeks x
Exemplary damages: breach of duty to repair	$2,400.00	breach of duty to repair
Report cost	$879.75	Report cost
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$8,706.75
Total payable by Landlord to Tenant	$8,706.75

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant names and identifying details.
J And V Limited T/A Nanson Property Management As Agent For Richard King must pay [The tenant/s] $8,706.75 immediately, calculated as shown in table below:
All other clams are dismissed.

Reasons

Both parties attended the hearing. The landlord was represented by the company directors for J and V Ltd.
The tenants moved into the tenancy premises in September 2022 and moved out on 8 July 2024. The house had leaks not long after they moved in. The leak to the downstairs bedroom was not repaired during the tenancy. The tenants became increasingly concerned about their health and paid for an air and surface mould testing report just before they moved out. The report found the house was contaminated with mould, recommended that the tenants move out, and that anyone entering the house should wear PPE. The tenants have claimed compensation and exemplary damages because the landlord breached the duty to repair the leaks. The questions I have to decide include: • Was the house contaminated? • Did the landlord breach the duty to repair? • Should the landlord pay exemplary damages? • Should the tenants get more compensation?

Was the house contaminated?

A few months after the tenants moved in they noticed leaks on the west side of the house, including a drip from the window frame in the downstairs bedroom. The builder recommended that the exterior wall be repaired and that the downstairs bedroom wall should be opened up to dry out. Scaffolding was erected and the outside repair work was completed. The inside wall was not opened up. Months passed, and when the wall was eventually opened in April 2024 the builder found water running inside the wall and mould.
The tenants paid Healthy Homes Inspections to carry out air and surface mould testing in the downstairs bedroom just before they moved out. The tester and report writer, Mr Richards, gave evidence at the hearing. The surface testing from inside the wall was “unremarkable”. The air testing identified high levels of Aspergillus/Penicillium - “considered toxic in higher levels”, and Chaetomium and Stachybotrys - “toxic mould spores” which “pose potential serious health risks from exposure”. Mould was visible inside the bedroom wall and water was running inside of the wall during Mr Richards visit. The report states: Based on my professional opinion, I strongly advise the tenants to prioritise their health and well being by considering moving out of the property and into a dry, mould free environment. ... My recommendation is that anyone entering 58 Hungerford Road wear appropriate personal protective equipment (PPE) and respiratory protective equipment (RPE).
After the tenants filed their application the landlord arranged an indoor air quality assessment of the downstairs bedroom and bathroom. This was carried out by All Clear Group Limited on 3 October 2024. The house was unoccupied at the time. All Clear found raised moisture content inside the wall in the bedroom. There was an elevated moisture content reading on the bathroom window. The report states: The analytical results indicate there is an elevated fungal spore counts of Aspergillus/Penicillium type spores, Cladosporium type spores, and Stachybotrys type spores in bedroom 4 compared to the outdoor samples. The spore count of Aspergillus/Penicillium and Stachybotrys type spores detected had significantly decreased since the initial assessment carried out in July 2024. The presence of spores may be due to the disturbance during remedial works. ... The tape lift sample collected also indicates there is an active mould growth of Aspergillus/Penicillium and Stachybotrys present in the exposed wall linings. The spore types detected on the sample were consistent with the mould spores in the air samples.
All Clear was asked to comment on Mr Richard’s conclusion the tenants should leave the tenancy premises and that it was likely the mould had contributed to the tenants’ poor health. The landlord spent some time questioning Mr Richard’s qualifications and justification for deciding the house was not habitable. Mr Richards said he made the call based on his experience and the fact the tenants were unwell. All Clear’s report at page 8 states that there are currently no Australian or New Zealand guidelines for acceptable levels of surface or airborne mould outside of the food industry. It also states that the World Health Organisation do not support any numerical guidelines for the interpretation of air sampling outside of a manufacturing environment. In other words, there are no defined levels – such as we have for methamphetamine contamination - over which it would be unsafe to live in a house.
All Clear also use knowledge, experience, expert opinion, and common sense to assist in the interpretation of results. Their conclusion was that it was likely the elevated moisture and mould were isolated to the work area in bedroom 4 and there should be restricted access to that area (only) while remedial works are completed.
It seems most likely to me that Mr Richards’ recommendation the tenants move out of the house - not just the bedroom – was not supported by his findings. Likewise, the comment about PPE was not supported by his findings. I find the tenants have not proved the house was contaminated with mould and this claim is dismissed.
Having said that, the types of mould found in the downstairs bedroom indicate raised moisture levels. Given the agreed evidence there was a leak inside the wall the spore counts are not surprising. All Clear also found elevated moisture content in the downstairs bathroom. Both the reports stress the potential health risks from living in a damp environment. All Clear’s states: There is a greater causal relationship between indoor dampness-related factors and respiratory health effects, compared to indoor mould and fungi. Damp indoor environments can produce a range of respiratory reactions, including the development and exacerbation of asthma, respiratory infections, cough, wheeze and difficulty breathing.

Did the landlord breach the duty to repair?

The tenants have claimed that the landlord breached its obligation maintain the premises in a reasonable state of repair. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200. See section 45(1), (1A) and Schedule 1A Residential Tenancies Act 1986 (RTA).
The tenants’ submission is that the landlord knew about the leaks in the downstairs bedroom in February 2023 and the leaks were not repaired during their tenancy. In particular the tenants were concerned the landlord did not follow the builder’s advice and open up the wall in the downstairs bedroom, even after requests for the work to be competed because of health problems.
The landlord’s submission was that the landlord acted promptly to deal with a series of leaks during the tenancy. Work was done to the exterior west wall, to the roof, and to a skylight. I have seen the dates and, with the exception of the bedroom wall, I accept the work was carried out in a reasonable time frame.
On 5 April 2023 the landlord emailed the tenants and said the leaks would be repaired, including drying out the interior wall in the downstairs bedroom. The landlord is not sure why the initial advice to open up the wall was missed when the repair work was quoted. The landlord did not follow up on this. At the start of October the tenants asked when the repair work would be done inside the bedroom. The landlord replied: ... the wall will not be worked on until summer. It is completely enclosed, and because it is no longer leaking, will not be an issue for you meantime.
When nothing was booked the tenants followed up again by email on 26 February 2024 and said: ... The most concerning issue is the mould and dampness which we’ve chatted about before. In the downstairs bedroom, we’ve been getting mould on the ceiling, and our clothes and shoes in our drawers as well as in the wardrobe get mouldy and smelly. I have developed a cough where I have a coughing fit at least once a day. I went to the doctors for it and they believe the mould is the issue and we need to follow up with you on getting the wall stripped and redone as was suggested by Sandy in February last year. We’d like this remedied as soon as possible as it is affecting our health, and it was advised by yourself that this would be sorted this summer, but it is now the end of February and we haven’t had any updates...
The landlord arranged for a builder to open the wall, replace any damaged linings etc, and reinstate. On 12 April 2024 the builder removed a large section of gib and plywood lining from the bedroom wall. His email to the landlord states it was a rainy day and the insulation was wet. The builder could see “water streaming down the inside of the wall”. His advice was to repair the leak again. That builder wrote a report in October for the landlord to bring to the hearing. His report states that there was “a small leak” inside the wall. I prefer the email sent at the time, rather than his statement months later. It seems most likely to me there was water “streaming” inside the wall in April.
The builder who did the exterior repair work went back in May 2024. He also wrote a report in October for the hearing. He stated there was a leak tracking from the south side, which was not picked up when the west side work was completed, “so the water ingress continued”. He does not comment on the seriousness of the leak.
The landlord submitted that the leaks were minor and contained inside a wall. They said on three out of five inspections the tenants’ had clothes on an airing rack inside the house, and this behaviour must have been an aggravating factor for the damp and mould. The tenants agreed they dried clothes inside when there was no other option, but that they ran a dehumidifier next to the airing rack whenever this happened to mitigate moisture in the air.
It seems most likely to me there was an ongoing leak into the wall in the downstairs bedroom from February 2023 until the tenants moved out in July 2024. It seems more likely to me that it was the leak and not the clothes drying which led to the very high moisture readings in the bedroom and the problems with damp and mould. I find the landlord breached the duty to repair within a reasonable timeframe.
The tenants have also claimed there were breaches of the Healthy Homes Standards. The moisture ingress and drainage standard requires efficient gutters, downpipes and drains. It seems most likely to me the leaks were not from the gutters or the drainpipes. This part of the claim is dismissed.

Should the landlord pay exemplary damages?

In not repairing the leak into the downstairs bedroom the landlord committed an unlawful act. 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.
As to intention, the landlord said it acted on the advice of the builders. However, I find the landlord chose not to investigate the tenants’ concerns about damp and mould once the exterior work was completed, and this failure was intentional. One of the tenants had poor health and was prescribed an inhaler for the first time in her life. The tenants had to dispose of belongings, pay doctors and take time off work. The situation was stressful, and it was frustrating when the landlord did not take their concerns seriously.
It is in tenants’ interests that homes are safe and dry and there is public interest in landlord’s paying exemplary damages when there is a breach of the RTA. I allow $2400, which is at the lower end of the scale because I am not aware of any previous orders against the landlord.

Should the tenants get more compensation?

The tenants have claimed additional compensation. The parties discussed a rent reduction after the bedroom wall was opened. The rent during the tenancy was $750 and then $780 a week. The landlord reduced the rent by $195 a week backdated to 12 April 2024, which was when the bedroom wall was opened up. This was based on a calculation for loss of the use of the downstairs bedroom. This was less than the tenants thought fair but they accepted it at the time. The landlord also allowed the tenants to end the fixed term tenancy early provided they gave 28 days notice.
I have considered all of the evidence. The tenants lost more than the use of one room during the tenancy. The reality for the tenants is that there was a loss of amenity from February 2023 because of the leaks. The leaks were managed, reported, investigated, quoted, scaffolded, and repaired. Later on in the tenancy a skylight leaked and was repaired. The bedroom wall was opened up and the leaks were investigated again. There were texts and emails arranging access. All this work over months meant there was disruption for the tenants. There was also ongoing water ingress in the bedroom causing problems for the tenants in that room.
I note there is email evidence the tenants battled with mould and condensation in the downstairs bathroom as well through the whole tenancy and there was an elevated moisture content reading in October 2024, after the house had been empty for three months.
I find the landlord should pay additional compensation. Taking everything into account I find $75 a week from 20 February 2023 to be reasonable. I find compensation in the amount of $270 a week – made up of the $195 rent reduction plus $75 compensation - to be reasonable for the period of time after wall was opened up. This is because the tenants had to move out of the bedroom and into the adjoining lounge, and the four tenants could not use the house as they intended. It seems likely to me there would have been increased costs for heating and using the dehumidifier as well.
I find the landlord should pay the cost of the tenants’ air and surface mould testing. This is because the tenants really struggled to get their complaints about mould taken seriously during the tenancy and their report prompted action, even if it was too late. I find the tenants should pay for the cost of having Mr Richards attend the hearing and giving evidence because each party pays their own costs for preparation and attending the hearing.
The tenants’ claim for damaged belongings is vague and does not contain sufficient information for me to make a decision. The cost of the doctors visits is not allowed because I have not been provided with copies of the invoices. These claims are dismissed. Other orders
Because the tenants have substantially succeeded with the claim I have reimbursed the filing fee.
The tenants’ application for suppression is allowed because they are the most successful party. The landlord’s name is published because there is public interest in names when landlords have to pay compensation and exemplary damages.

Tenancy Tribunal case 4904015 — Exemplary damages at 58 Hungerford Road, Houghton Bay, Wellington 6023

At a glance

Tenancy Tribunal case 4904015 — Exemplary damages at 58 Hungerford Road, Houghton Bay, Wellington 6023

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the house contaminated?

Did the landlord breach the duty to repair?

Should the landlord pay exemplary damages?

Should the tenants get more compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the house contaminated?

Did the landlord breach the duty to repair?

Should the landlord pay exemplary damages?

Should the tenants get more compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions