What was Tenancy Tribunal case 4904742 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 4904742?

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 4904742?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4904742?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10601991-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4904742 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 4904742?

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 4904742?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4904742?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10601991-Tribunal_Order_Redacted.pdf.

Unit/Flat 207E, 13 Dundonald Street, Eden Terrace, Tenancy Tribunal Case 4904742 — Healthy homes

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name.
Premium Executive Rentals Limited As Agent For Liviu & Camelia Ichim must pay [The tenant/s] $14,750.04 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,720.00 [Bond number suppressed] to [The tenant/s] immediately.

Reasons

The Tribunal must consider applications filed by both the landlord and tenant. The landlord’s application was the subject of a separate decision dated 24 June 2024, from which rent arrears were ordered to the landlord. DescriptionTenant Exemplary damages: Healthy Homes Standards $500.00 Exemplary damages: Unlawful entry $500.00 Rent compensation $13,750.04 Total award $14,750.04 Bond $2,720.00 Total payable by Landlord to Tenant $14,750.04 This decision is the result of the tenant’s claim, although I note I have ordered the tenant pay rent arrears to the landlord, to the amount of $8,575.71, that will need to be offset against this order.
Both parties appeared at the hearings on 24 June and 18 July 2024.

BACKGROUND

The tenancy commenced on 3 January 2022, and during the tenancy, there was a change of property manager on 21 April 2024.
During the tenancy, there was a sewage leak. This caused the premises to become flooded with wastewater from the unit above this tenancy. Photographs provided are consistent with faecal matter on the carpet and tiles, as well as extensive waste water.
The tenant contacted the landlord soon after the flooding, to raise damaged belongings from the flood. I note an email from 14 February 2024 in which the tenant set out her damaged goods and the amounts she was claiming for them. That is the same list submitted in this claim. The landlord responded on 15 February saying that some photographs had been taken, and they contacted the Body Corporate, who advised that any claim would need to be made under the tenant’s contents insurance – in short declining compensation for the damaged items.
The parties agreed that a 50% rent reduction would occur for a two week period because of the flooding.
I note an email from 5 May 2024, in which the tenant advised the landlord that while she had been away from the premises, there was a “third” sewage leak, and further the heater that had been installed had damaged the tenant’s television and couch. The landlord responded the following day, advising that they would be happy to meet with the tenant at the premises.
On 1 June 2024 the tenant filed her application with the Tribunal.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
The Tribunal must consider a claim for exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

RENT COMPENSATION

The tenant states that she has been unable to live in the premises from 10 February 2024 due to the sewage leak. The tenant seeks to have the rent compensated for that period
The landlord states that she tried to get in contact with the tenant, but the tenant would not get in contact with her, as far as the landlord was concerned the tenant had abandoned the premises, particularly in circumstances that the rent payments stopped.
The Property Manager said that he received a call late on a Friday night to advise of the sewage leak. It was agreed that the tenant should leave the premises that night, and the next day the building manager engaged the plumber and cleaning. The premises were commercially sanitised. The landlord confirmed that it took a few days for the cleaning and sanitisation to occur. At the time it was agreed that the rent should reduce by 50%, and that occurred for a two week period.
I raised with the landlord, that the tenant had stated that there was a continuing sewage leak. The Property Manager said he was not sure about that, but then reference was made to an email where this continuing leak was noted, but saying the tenant would not engage further with the landlord on this.
The tenant said there has only been one set of cleaning undertaken, which was after the initial leak. The tenant said she may not have been in contact with the landlord as she has been unwell, and also needed to drive to the premises.
The Property Manager responded that she has been to the premises and has been unable to find any leak. Analysis
Again there is no dispute between the parties that there was a sewage leak in the premises, but the parties do disagree whether this was a continuing issue.
I am satisfied that the evidence does favour a continuing leak as the tenant claims, particularly for these reasons.
Firstly, there is an email on file from 5 May referring to a “third” sewage leak. It seems that email was received by the landlord because the landlord responded to it.
Secondly, I have no reason not to accept the evidence of the tenant in this matter. She was the tenant so it can be accepted she would have had the most time in the tenancy compared with the landlord.
Thirdly, the landlord has not provided any professional reports, such as from a plumber, establishing what the cause of the leak was, and providing evidence that it has been resolved, and would not likely occur again.
I accept that the water was unsanitary, and to the extent that it would not be reasonable for the tenant to live in the apartment while there was this continuing sewage leak.
I note that the landlord advised that when this was originally raised, they had the premises professionally cleaned and sanitised. That was the right thing to do, but the problem is that given the leak was I find a continuing leak, that professional attendance needed to occur for the subsequent leaks also. In short, I would not accept that it would be reasonable for the tenant to re- occupy the premises until there had been professional cleaning of the sewerage from the tenancy on each occasion, and that did not occur. The result must be that the premises were uninhabitable.
The question then is whether rent compensation can be ordered, and I find it must, for these reasons.
This case falls within section 59 of the RTA, ‘Destruction of premises’. That provision holds: 59 Destruction of premises (1) Where, otherwise than as a result of a breach of the tenancy agreement (whether for a fixed-term tenancy or a periodic tenancy), the premises are destroyed, or are so seriously damaged as to be uninhabitable,— (a) the rent shall abate accordingly; and (b) either party may give notice to the other terminating the tenancy. (2) Where a landlord gives notice of termination under subsection (1), the period of notice shall be not less than 7 days. (3) Where a tenant gives notice of termination under subsection (1), the period of notice shall be not less than 2 days. (4) Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable,— (a) the rent shall abate accordingly; and (b) either party may apply to the Tribunal for an order terminating the tenancy, and the Tribunal may make such an order if it is satisfied that it would be unreasonable to require the landlord to reinstate the property or (as the case may require) to require the tenant to continue with the tenancy albeit at a reduced rent.
In my view, the effect of the sewage leak must be viewed as damage to the premises. Whether viewed as wholly or partially destroyed, section 59 requires that the rent abate.
When the RTA required the rent to ‘abate’ that means cease. So I find the tenant must be reimbursed the rent due over that period as ordered above. Of course I have already made a rent arrears order, so that amount will need to be deducted from this order.

PROPERTY DAMAGE

The tenant claims property damage from the sewage leak to the sum of $8,998.96, including: a. An armchair b. Couch c. Four cushions d. Coffee table e. Groceries f. TV remote g. Towels h. Laptop
The tenant also seeks compensation for a 75 inch television
In response, the landlord states that there is a clause that the tenant have her own insurance. The landlord disagrees that they should be liable for damage. The landlord also states that no evidence has been presented showing that these items were in fact damaged. Analysis
I have no reservations in accepting that the tenant’s goods were damaged in the flood. The tenant raised this damage with the landlord at the first opportunity, and the landlord looked at the damage at the time, but ultimately declined to order compensation not because the damage was disputed, but because the landlord considered any loss should be claimed on the tenant’s insurance policy.
This is a claim under the Residential Tenancies Act 1986, so in order for me to require that the landlord compensate the tenant for this damage, I must first establish that the landlord has breached some obligation to the tenant, and I find the tenant has not established a breach.
RTA places a range of obligations on the landlord, such as the requirement to maintain the premises, but the tenant has not established that the sewage leak arose from a breach of maintenance. In fact, there is no evidence before the Tribunal as to what caused the water leak at all.
If viewed as a matter of contract, the tenant has not identified any contractual obligation the landlord has broken.
While strictly a tort claim (which the Tribunal cannot consider), if viewed from the lens of negligence, I cannot see any negligence arising on the part of the landlord, certainly there is no evidence before the Tribunal suggesting that to be the case. With negligence claims, there needs to be a loss arising that was foreseeable, and that is not the situation here. 1
In the absence of the loss arising from a breach on the part of the landlord, there would be no basis for me to make an order in favour of the tenant regarding her damaged items.

BREACH OF HEALTHY HOMES STANDARDS

The tenant states that on 2 June 2022 a second heat pump installation was attempted. This took some nine hours, the tenant stayed at the premises because she was concerned about her belongings. The tenant says that during the install, the body corporate advised it was against the body corporate rules to install an external heat pump and it needed to be removed. In the process, a hole was cut into the wall that went to the outside of the premises which has not been fixed.
On 15 April the landlord then installed a heater.
The tenant says that the heating and draught standards have been breached.
The landlord agrees that there was a need for another heat pump to be installed to comply with the Healthy Homes Standards, but as it turned out, the heat pump could not be installed because of the body corporate. However, the landlord has determined that given there was an existing heat pump, the HHS could have been met by way of installing a top-up heater as it has done. The landlord states the premises are now HHS-compliant. 1 See for example the High Court decision of Murphy v Bell (AP 43/93) Whangarei.
The tenant states that the landlord had placed plastic over the hole, which the landlord states was by the person who installed a panel heater, but the tenant says that fell off.
The landlord thinks that the hole in the wall is “not a big deal”, and there should not be any orders made. Analysis
The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards for heating and draught stopping.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provides for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, but all private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021. Heating standard:
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
In this case, the tenants position is that the landlord failed to comply with the heating standard, because the second heat pump installed failed to comply with requirements of the Body Corporate, so needed to be removed.
It is not clear to me whether the landlord needed to install a second heat pump, or whether the electric heater that was installed, complied with the HHS, because a ‘top up’ electric heater was installed (see schedule 1, clause 5 of the regulations). The landlord states that this would mean the heating was compliant, and I have not seen evidence to the contrary.
But even if the premises did not comply, in order to require landlord to pay exemplary damages, I will need to establish that the landlord’s breach was intentional, and there is no evidence of that. I accept that the reason the landlord could not install the second heat pump, was because in the process of installing the unit, the body corporate refused to allow the item to be installed, presumably on the basis that it breached the body corporate rules. The fact that the landlord undertaking to have the heater installed, proves that any breach was not intentional, and before I could not order exemplary damages for any breach of the heating standard, if it did exist, I must conclude the breach was intentional. Draught Stopping Standard
The draught-stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
When the second heat pump was installed, the installer cut a hole through the plasterboard wall, and a second hole in the ceiling on the deck, which the tenant advised joined up. Therefore, there would be a significant breeze coming through the two holes in the wall and ceiling. No doubt if the second heat pump has been properly installed, the hole would have been filled with wires and tubes, and sealed off properly. But when the second unit was removed, the landlord did not make any effort to make good the hole, in a tradesman-like way, only a temporary plastic cover was applied which I accept fell off.
I am satisfied that the draught would have arisen and would offend the landlord’s draft-stopping obligation under the HHS. I have taken into consideration the factors found in section 109 of the RTA relating to exemplary damages. I consider that the breach is likely to be intentional because the landlord or its agents (including contractors) would have known about the hole. The effect for the tenant is that she lived in draughty premises, that would have been colder than they should have been, and would have been difficult to heat. There are strong interest for tenants to live in warm and dry premises, and that same interest extends to the public generally.
I conclude that it would be just to make an order for exemplary damages, but take into consideration what is likely to be a modest impact for the tenant, conclude that exemplary damages of $500.00 would be reasonable, and that is ordered. BREACH OF QUIET ENJOYMENT / ENTRY TO PREMISES
The tenants states that on 25 April the current Property Managers took over, and did an inspection on 1 June. However the outgoing Property Manager had did an inspection on 7 May.
The landlord said she needed to go into the premises in relation to issues with the leak, and because they believed it was abandoned.
The tenant clarified a range of concerns about the premises and feeling comfortable in the premises. Analysis
There is no doubt that the tenant would have had considerable disruption in her enjoyment of the property, given the sewage leaks, and other issues around that, as well as the installation of the heat pump. However, in order to require the landlord to pay exemplary damages for a breach of the tenant’s quiet enjoyment, the RTA requires that the breach be in circumstances amounting to harassment. Very broadly, harassment means when one party takes actions deliberately intending to cause harm or upset to another party, but there is no suggestion that is the situation here.
However, I do accept that the landlord has breached its obligations in relation to lawful entry of the premises. Section 48 sets out the landlord’s right of entry to the premises, and as far as inspections are concerned states: (b) for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks; or
In this case there was an inspection on 7 May and then again on 1 June.
I note that the email from the landlord, notifying the tenant of the inspection, is dated 3 May 2025. In that, the landlord states that “the routine maintenance inspection of the above property is now due, we do these inspections at regular intervals to report to the Owner any maintenance that may be required”. Plainly that was a general inspection.
The landlord has not convinced me that the subsequent inspection in June, was anything other than a general inspection, and because that occurred within the four week period, then the landlord has breached its entry restrictions. It does not matter that there has been a change of property manager, this has been the same Tenancy throughout the duration.
The maximum level of exemplary damages that can be ordered for a breach of section 48, is $1,500.00.
In this case I consider that exemplary damages should be ordered. The landlord is a professional property manager and should have been aware of its entry restrictions under the Act. I consider it more likely than not in those circumstances that the breach was intentional. The effect for the tenant is that the landlord has entered her premises unlawfully, and the notice period was too short. There are strong interest for tenants that landlords only enter into the dwelling when there is all full authority to do so. The public has an interest in ensuring that tenants do not have the enjoyment of the tenancy disturbed other than for lawful reasons.
I consider it would be just to make an order of exemplary damages, and in this case I set the level of exemplary damages at $500.00, one third of the maximum.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has been substantially successful, so I order tenant name suppression only.

Tenancy Tribunal case 4904742 — Healthy homes at Unit/Flat 207E, 13 Dundonald Street, Eden Terrace,

Tenancy Tribunal case 4904742 — Healthy homes at Unit/Flat 207E, 13 Dundonald Street, Eden Terrace,

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT COMPENSATION

PROPERTY DAMAGE

BREACH OF HEALTHY HOMES STANDARDS

NAME SUPPRESSION

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT COMPENSATION

PROPERTY DAMAGE

BREACH OF HEALTHY HOMES STANDARDS

NAME SUPPRESSION